History owes apology to LGBT community and kin, says Supreme Court

Justice Indu Malhotra, who wrote a separate concurring judgement decriminalising consensual gay sex, said the members of this community were compelled to live under the fear of reprisal and persecution which occurred due to the ignorance of the majority to recognise that homosexuality is a "completely natural" condition which is part of a range of human sexuality.

Such persons deserve to live a life unshackled from the shadow of being 'unapprehended felons', the lady judge said.

She was part of a five-judge constitution bench that unanimously held that part of Section 377 of the Indian Penal Code that criminalised consensual sexual relationships between adults of the same sex or otherwise, in private, violated the constitutional right to equality and dignity.

"History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution," Justice Malhotra said in her 50-page verdict.

"This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the fundamental right to equality guaranteed by Article 14," she said.

The court said the part of Section 377 infringed the fundamental right to non-discrimination under Article 15 of the Constitution and the right to live a life of dignity and privacy as guaranteed by Article 21, while also violating the right of freedom of expression of Lesbian, Gay, Bisexual and Transgender (LGBT) persons under Article 19(1)(a).

Adults are persons above the age of 18 years who are competent to give consent, the court said and clarified that such consent must be a free consent, which is completely voluntary in nature and devoid of any duress or coercion.

Justice Malhotra said "reading down of Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution."

The court said the part of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minor and acts of bestiality.

It said Section 377 criminalised the entire class of LGBT persons since sexual intercourse between such persons was considered to be carnal and 'against the order of nature'.

Homosexuality is "not an aberration" but a "variation of sexuality" and sexual orientation was "an innate attribute of one's identity which cannot be altered," it said.

Scientific research, the court said, has examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation but no finding has conclusively linked sexual orientation to any particular factor or factors.

"It is believed that one's sexuality is the result of a complex interplay between nature and nurture. Sexual orientation is an innate attribute of one's identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality," the court said.

It said the apex court has granted equal protection of laws to transgenders and there is no justification to deny the same to LGBT community and a person's sexual orientation is intrinsic to their being.

"In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being 'perverse', 'deviant', or 'unnatural'," it said.

The court said the part of Section 377, which criminalises consensual

sexual acts between adults in private, was not based on any sound or rational principle, since the basis of criminalisation was the 'sexual orientation' of a person, over which one has 'little or no choice'.

Justice Malhotra said the prohibition against discrimination under Article 15 on the ground of 'sex' should encompass instances where such discrimination takes place on the basis of one's sexual orientation.

The LGBT community suffered from unjustified and unwarranted hostile discrimination and is equally entitled to the protection afforded by Article 15, the court said, adding that they, like other heterosexual individuals, are entitled to their privacy and the right to lead a dignified existence without fear of persecution.

LGBT members are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners and such choices must be protected under Article 21 as "the right to life and liberty would encompass the right to sexual autonomy, and freedom of expression."

The court said the right to privacy was not just the 'right to be let alone' but has travelled far beyond the initial concept.