The September 6 judgement of the Supreme Court on Section 377 has unleashed an outpouring of joy, support and tears in the country. Not only are the LGBT activists, community members, lawyers and supporters of the movement rejoicing, indeed the entire country is celebrating the win. The Supreme Court’s decision comes as a beacon of hope and indeed the “rainbow in the clouds” in these times, as Chief Justice Dipak Misra put it, signalling a move for acceptance and respect for all persons and to a more inclusive society where diversity is celebrated.
The decision consists of four separate concurring judgements written by Chief Justice Dipak Misra, Justices Nariman, DY Chandrachud and Indu Malhotra.
One of the core themes of the judgement is the concept of dignity. CJI Misra relies on the essence of dignity, which allows an individual to behave, conduct and express one’s self as he/she desires. This includes the right to choose one’s identity and the manner of expressing oneself without fear. The court held that an individual’s choice to engage in sexual acts within one’s private sphere cannot be criminalised. The State has no legitimate interest in criminalising voluntary sexual acts of adults, and to harness such an essential decision, which defines the individualism of a person, by criminalising it, violates the individual’s right to dignity.
Closely linked to dignity is the concept of privacy. Privacy includes the right to individual autonomy for self-determination of one’s sexual orientation and sexual identity. The court held that sexual orientation is an inalienable part of one’s identity. It also held that individuals have the right to have intimate relations and companionship without interference and this is an inalienable part of one’s right to privacy.
The third prong of the judgement was the right to equality. The court held that Section 377 discriminates against the LGBT community and is manifestly arbitrary as it criminalises consensual sexual acts of whatever nature between adults. It is the freedom of choice of two consenting adults to engage in sex for procreation or otherwise, and it can’t be said to be against the ‘order of nature’. The SC recognised that if Section 377 remains in its present form in the statute book, it would allow for continued harassment and exploitation of LGBT community.
While all the different opinions focused on sexual orientation primarily, the judgements of Justice Nariman and CJI Dipak Misra elaborated on gender identity and the transgender community.
Justice Nariman relied extensively on the Yogyakarta Principles and the landmark decision of the Supreme Court in NALSA vs Union of India, where gender identity and sexual orientation were held to be inalienable parts of one’s right to life and personal autonomy.
CJI Misra took great pains to highlight the marginalisation of transgender persons. He stated that homophobic attitudes have dehumanised the transgender community by denying them their dignity, personhood and above all, their basic human rights, and that Section 377 by criminalising transgender persons casts a great stigma on an already oppressed and discriminated class of people.
This stigma, oppression and prejudice has to be eradicated and the transgender community has to progress “from their narrow claustrophobic spaces of mere survival in hiding, with their isolation and fears, to enjoying the richness of living out of the shadows with the full realisation of their potential and equal opportunities in all walks of life”.
The court declared that the LGBT community possesses the same human, fundamental and constitutional rights as other citizens as these rights inhere in individuals as natural and human rights.
Relying, therefore, on the rights to equality, liberty, privacy and dignity, the court read down Section 377 to decriminalise all consenting and voluntary sexual relationships between adults and limited criminality to only non-consenting acts or sexual acts of bestiality.
This is indeed a remarkable judgement and follows closely on the heels of the nine-judge decision of the Supreme Court last year guaranteeing the right to privacy. Over the last year, the Supreme Court has made quantum leaps in the recognition of individual rights. The reading down of Section 377 was just waiting to happen.
The court has held that individuals have the constitutional right to express their own identity, sexuality and personality in any manner their wish to, and this right extends to the freedom of intimate associations and choices of intimate relations that one chooses to make and on which there can be no State interference. These are extremely powerful declarations as people in our country often do not have these rights to self-expression and self-determination within their own families, relationships, workspaces, schools, universities and public spaces.
The most vulnerable of us all are women, lesbian, gay, bisexual, transgender and intersex persons. This verdict truly comes as a “rainbow in our clouds” as it gives all of us, and not just the LGBT community, the strength to pursue our dreams and aspirations, to live our lives fully without interference and to celebrate our differences.
(The writer, a Supreme Court lawyer, represented Akkai Padmashali and other transgender activists in the Sec. 377 case)