"For me, today is as good as August 15", an emotional voice said on Thursday afternoon, a full 22 days after India celebrated its 72nd Independence day. The thought was echoed by many others who were celebrating 'pride' at a joyous and colourful parade in Mumbai as well as millions elsewhere in India and across the world, in light of the Supreme Court correcting the self-described "mess" created five years earlier when the Delhi High Court's false start for freedom of sexual orientation in India had been overturned and the 158-year old Colonial era Section 377 upheld.

It had been a roller-coaster of a morning, nerve-racking for sure, but never really lacking that quiet crossed-fingers confidence that the top court in the land would rule in favour of liberty to love and freedom to choose, and against parochialism, intolerance, and really really bad so-called 'science'. 

Sane voices had insisted that the decriminalisation of homosexuality was a foregone conclusion in light of the Supreme Court's historic verdict upholding right to privacy as a fundamental right, and so it turned out, but it wasn't upon any single technical argument that the 5-judge bench relied. Between Justices Misra, Khanwilkar, Chandrachud, Nariman and Malhotra, gay sex was legalised in India with a flourish! While the verdict left us spoilt for choice, here are some of the most meaningful, faith-affirming, constitution-upholding, tear-jerking and indisputably beautiful sections of the verdict, judge-by-judge:

Chief Justice of India Dipak Misra (for himself and Justice Khanwilkar):

'NO ONE CAN ESCAPE FROM THEIR INDIVIDUALITY'

Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, “I am what I am, so take me as I am” and similarly, Arthur Schopenhauer had pronounced, “No one can escape from their individuality”

'MUST BID ADIEU TO PERCEPTIONS, STEREOTYPES AND PREJUDICES DEEPLY INGRAINED IN SOCIETAL MINDSET'

The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ―less than equal sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.

'NO ONE SHOULD IMPOSE SOLITUDE ON HIM/HER'

An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her

'AT CORE OF IDENTITY LIES SELF-DETERMINATION'

At the core of the concept of identity lies self-determination, realization of one‘s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, ―constitutionally permissible. As long as it is lawful, one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective.

'CONSTITUTION CAN ADAPT TO DEVELOPMENTS IN SOCIETY'

A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society.

'RIGHTS OF LIBERTY AND EQUALITY ARE DYNAMIC AND TIMELESS, NOT STATIC'

The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of 'liberty' and 'equality' and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature

JUDICIARY CAN'T REMAIN OBLIVIOUS TO EVOLVING SOCIETY

The judiciary cannot remain oblivious to the fact that the society is constantly evolving and many a variation may emerge with the changing times. There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny.

JUDICIARY HAS TO KEEP NECESSITIES OF NEEDY AND WEAKER SECTIONS IN VIEW

The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not only the State and the society at large but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society.

SEXUALITY CANNOT BE CAGED

The freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move. The immobility due to fear corrodes the desire to express one‘s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit.

HOMOSEXUALITY IS ‘NATURALLY, NATURAL’

An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being.

CANNOT PUSH INDIA INTO ‘HOMOGENEOUS’ PHILOSOPHY

Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.

CANNOT USE ‘GARB OF SOCIAL MORALITY’

In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher. 

‘RIGHT TO CHOOSE WITHOUT FEAR’

When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to  demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals. This is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear. It has to be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual relationship.

‘INDIVIDUAL'S CHOICE TO ENGAGE IN CERTAIN ACTS HAS BEEN RESTRICTED BY AGE OLD SOCIAL PERCEPTIONS’

The concept of dignity gains importance in the present scenario, for a challenge has been raised to a provision of law which encroaches upon this essential right of a severely deprived section of our society. An individual's choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual's right to dignity by reducing it to mere letters without any spirit

‘IT IS PURE SCIENCE’

The society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again. To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain manner in which the brain and genitals of an individual function and react. Whether one's sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation.

‘LGBT COMMUNITY IS SEEKING THE BASIC RIGHT TO COMPANIONSHIP’

There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.

‘SEX PERFORMED DIFFERENTLY DOESN’T BECOME AGAINST ORDER OF NATURE’

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature.

‘SECTION 377 IN PRESENT FORM WILL ALLOW HARASSMENT & EXPLOITATION’

At the very least, it can be said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest. Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception. 

‘LGBT COMMUNITY POSSESS SAME HUMAN, FUNDAMENTAL AND CONSTITUTIONAL RIGHT’

The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights. We must remember that equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law and, thus, criminalizing carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary.

‘BIGOTED & HOMOPHOBIC ATTITUDES’ DEHUMANISE & DENY HUMAN RIGHTS

Bigoted and homophobic attitudes dehumanize the transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realize that identity and sexual orientation cannot be silenced by oppression. Liberty, as the lynchpin of our constitutional values, enables individuals to define and express their identity and individual identity has to be acknowledged and respected.

STIGMA, OPPRESSION & PREJUDICE HAS TO BE ERADICATED

The very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and the transgenders have 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 full realization of their potential and equal opportunities in all walks of life.

‘NEW INDIA-TO BE A MORE INCLUSIVE SOCIETY’

All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people. To change the societal bias and root out the weed, it is the foremost duty of each one of us to ―stand up and speak up against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.

‘CONSTITUTIONAL MORALITY CANNOT BE MARTYRED AT THE ALTAR OF SOCIAL MORALITY’

Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society. 

‘SEXUAL ORIENTATION IS NATURAL & INHERENT’

Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.

‘CONCEPT OF IDENTITY IS SACRED & QUINTESSENTIAL FACET OF HUMANITY’

Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.

‘SECTION 377 AN ODIOUS WEAPON OF HARASSMENT’

Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of the law laid down in Shayara Bano (supra), Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.

‘CONSENSUAL HOMOSEXUAL INTERCORSE DOES NOT HARM PUBLIC DECENCY OR MORALITY’

An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

Justice Nariman

‘DEFINITION THROWS TO WIND MISCONCEPTION THAT SAME-SEX COUPLES SUFFER MENTAL ILLNESS’

This definition throws to the winds all earlier misconceptions of mental illness including the fact that samesex couples who indulge in anal sex are persons with mental illness. At one point of time, the thinking in Victorian England and early on in America was that homosexuality was to be considered as a mental disorder. The amicus curiae brief of the American Psychiatric Association in support of the petitioners in Lawrence v. Texas (supra) has put paid to this notion. 

‘MENTAL ILLNESS SHALL NOT DETERMINED BY NON-CONFORMITY’

More importantly, mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. It is thus clear that Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good. This is another very important step forward taken by the legislature itself which has undermined one of the basic underpinnings of the judgment in Suresh Kumar Koushal (supra). [reference to the 2013 verdict]

‘RATIONALE FOR VICTORIAN MORALITY HAS LONG GONE’

Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with 74 - as Justice Holmes said in the lines quoted above in this judgment - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared.

‘SIN IS NOT PUNISHABLE ON EARTH BY COURTS’

Morality and criminality are not co-extensive - sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults.

‘FUNDAMENTAL RIGHTS DO NOT DEPEND ON OUTCOME OF ELECTIONS’

One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.

UNION OF INDIA TO GIVE JUDGEMENT WIDE PUBLICITY

We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to 96 reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.

Justice Chandrachud

THEY HAVE WAITED

Indian citizens belonging to sexual minorities have waited. They have waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic colonial-era law – forcing them to live in hiding, in fear, and as second-class citizens

IMPOSING CRIMINAL SANCTIONS UPON BASIC HUMAN URGES

Section 377 is based on a moral notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature. It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings lead sanitized lives, in which physical relationships are conditioned by a moral notion of what nature does or does not ordain. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal.

‘HUMAN INSTINCT TO LOVE WAS CAGED’

A hundred and fifty-eight years ago, a colonial legislature made it criminal, even for consenting adults of the same gender, to find fulfillment in love. The law deprived them of the simple right as human beings to live, love and partner as nature made them. The human instinct to love was caged by constraining the physical manifestation of their sexuality. Gays and lesbians were made subordinate to the authority of a coercive state. A charter of morality made their relationships hateful. The criminal law became a willing instrument of repression. To engage in ‘carnal intercourse’ against ‘the order of nature’ risked being tucked away for ten years in a jail. The offence would be investigated by searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisation has been brutal

‘LAW IMPOSED A MORALITY WHICH IS AN ANACHRONISM’

Eighty-seven years after the law was made, India gained her liberation from a colonial past. But Macaulay’s legacy - the offence under Section 377 of the Penal Code - has continued to exist for nearly sixty-eight years after we gave ourselves a liberal Constitution. Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution. That, in essence, is what Section 377 denies to them. The shadows of a receding past confront their quest for fulfillment

‘377 DESTRUCTIVE OF AN IDENTITY WHICH IS CRUCIAL TO A DIGNIFIED EXISTENCE’

Section 377 has consigned a group of citizens to the margins. It has been destructive of their identities. By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of  the state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to the anguish of closeted identities. Sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence.

‘CONSTITUTIONAL VALUES OF LIBERTY AND DIGNITY CAN ACCEPT NOTHING LESS’

It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less.

‘HOMOSEXUALITY DOCUMENTED IN ALMOST 1500 SPECIES’

Homosexuality has been documented in almost 1500 species, who “unfortunately are not blessed with rational capabilities (and the propensity to ‘nurture’ same sex thoughts) as are found in mankind.” An interesting article in this regard notes that, “no species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphis.”

‘CITIZENS OF A DEMOCRACY CANNOT BE COMPELLED TO HAVE THEIR LIVES PUSHED INTO OBSCURITY BY AN OPPRESSIVE COLONIAL LEGISLATION’

Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by an oppressive colonial legislation. In order to ensure to sexual and gender minorities the fulfilment of their fundamental rights, it is imperative to ‘confront the closet’ and, as a necessary consequence, confront ‘compulsory heterosexuality.’ Confronting the closet would entail “reclaiming markers of all desires, identities and acts which challenge it.” It would also entail ensuring that individuals belonging to sexual minorities, have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. The choice of sexuality is at the core of privacy

‘SECTION 377 CRIMINALISES RIGHT TO INTIMACY’

By criminalising consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation, the State is  denying its citizens the right to intimacy. The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms. It is an exercise of the individual’s sexual agency, and includes the individual’s right to the choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue

“377 BASED ON STEREOTYPE ABOUT SEX”

By penalising sexual conduct between consenting adults, Section 377 imposes moral notions which are anachronistic to a constitutional order. While ostensibly penalising ‘acts’, it impacts upon the identity of the LGBT community and denies them the benefits of a full and equal citizenship. Section 377 is based on a stereotype about sex. Our Constitution which protects sexual orientation must outlaw any law which lends the authority of the state to obstructing its fulfilment.

‘SECTION 377 BLOCKS RIGHT TO HEALTH’

The operation of Section 377 denies consenting adults the full realization of their right to health, as well as their sexual rights. It forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. This lowers the standard of health enjoyed by them and particularly by members of sexual and gender minorities, in relation to the rest of society

‘LAW CREATES SOCIAL BARRIERS TO ACCESSING HEALTHCARE’

Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of HIV/AIDS

‘MEDICAL & SCIENTIFIC COMMUNITY SAYS IT IS NATURAL’

Medical and scientific authority has now established that consensual same sex conduct is not against the order of nature and that homosexuality is natural and a normal variant of sexuality.

‘DECRIMINALISATION IS NECESSARY TO BURY THE GHOSTS OF MORALITY’

This evolution has enabled societies governed by liberal constitutional values – such as liberty, dignity, privacy, equality and individual autonomy – to move beyond decriminalisation of offences involving consensual same-sex relationships. Decriminalisation is of course necessary to bury the ghosts of morality which flourished in a radically different age and time. But decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements. The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilizations across the spectrum of a compassionate global order, India cannot be left behind

‘OUR CONSTITUTION, ABOVE ALL, IS AN ESSAY IN THE ACCEPTANCE OF DIVERSITY

Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture. Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.

‘SOCIETAL NOTIONS OF HETERONORMATIVITY REGULATE CONSTITUTIONAL LIBERTIES’

The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.

‘ABILITY OF SOCIETY TO ACKNOWLEDGE INJUSTICE ON COMMUNITY IS A MARK OF ITS EVOLUTION’

The ability of a society to acknowledge the injustices which it has perpetuated is a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gives way to restitution, diatribes pave the way for dialogue and healing replaces the hate  of a community. For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.

Justice Indu Malhotra

‘377 VIOLATES THE RIGHT TO LIFE & LIBERTY’

Section 377 violates the right to life and liberty guaranteed by Article 21 which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being. 

‘HOMOSEXUALITY – NOT AN ABERRATION BUT A VARIATION OF SEXUALITY

Whilst a great deal of scientific research has examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings have conclusively linked sexual orientation to any one 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

‘PROTECTION OF SEXUAL ORIENTATION AT THE CORE OF FUNDAMENTAL RIGHTS’

Sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.43 The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual

‘HISTORY OWES AN APOLOGY TO MEMBERS OF THE COMMUNITY’

History owes an apology to the members of this community and their families, for the delay in providing redressal for the 49 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. 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. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.