SC refers to global judgements that set precedent to decriminalise gay sex

Countries across the globe which paved the way for equality and justice for the LGBT community were cited by the Supreme Court while striking down part of Section 377 of IPC this week, and quoted liberally from the judgements delivered by their courts on the issue.

A five-judge constitution bench comprising Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malohtra on Thursday unanimously struck down part of the section 377 of the Indian Penal Code (IPC) which criminalised gay sex, saying that it violated the constitutional right to equality and dignity.

CJI Misra and Justice Khanwilkar, who wrote the main 166-page judgement, mentioned the constitutional courts of United States, Canada, South Africa, Republic of Philippines and European court of Human Rights which have passed similar verdicts.

Referring to one of the judgements of the Supreme Court of the United States on the issue, they said that the court wrote, "LGBT were entitled to respect for their private lives and that the State could not demean their existence or control their destiny by making their private sexual conduct a crime, because their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without the intervention of the State".

In "Roberts versus United States Jaycees", the US top court observed that the choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State, CJI Misra and Justice Khanwilkar wrote.

They further said that the Constitutional court of South Africa, in one of the cases related to LGBT community, observed the "stigma attached to a significant proportion of our population is manifest".

"As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human," it had said.

The Constitutional court of South Africa drew parallel between the discrimination faced by homosexuals and the apartheid system that was in place in the African countries. "Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men."

The CJI and Justice Khanwilkar noted that the Supreme Court of Canada in Delwin Vriend case had observed that the most important outcome is the psychological harm which may ensue from the state of affairs as the fear of discrimination would logically lead them to concealment of true identity.

They said that the European court of Human Rights, had observed that homosexuality cannot be criminalised owing to public opinion.

"Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved," the court had said.

Similarly, the Supreme Court of the Republic of Philippines, too had observed that the court cannot impose its views on the populace.

Justice D Y Chandrachud, who also wrote a concurring judgement, said according the International Lesbian, Gay, Bisexual, Trans and Intersex Association, "74 countries criminalize same-sex sexual conduct, as of 2017. Most of these countries lie in the Sub-Saharan and Middle East region. Some of them prescribe death penalty for homosexuality".

He wrote in his judgment about another breakthrough for LGBTQ rights that came from the Supreme Court of Nepal, in Sunil Babu Pant versus Nepal Government. Pant, the first openly gay Asian national leader had filed a PIL before the Supreme Court of Nepal praying for the recognition of the rights of lesbians, gays, and third gender persons.

"The issue of sexual activity falls under the definition of privacy. No one has the right to question how do two adults perform the sexual intercourse and whether this intercourse is natural or unnatural,” the court had said.