The apex court of our country, Supreme Court (SC), is known as the guarantor and protector of the fundamental rights. This has been proved time and again by the third organ of our democracy. The few verdicts in the previous year establishes the fact. The Puttaswamy judgement holding Right to privacy as a fundamental right under Article 21, followed bycalling triple talaq as unconstitutional in Shayara Bano case, upholding marriage of Hadiya and Shafin Jahan, permitting passive euthanasia in Common Cause case, striking out colonial-era Section 497 of the Indian Penal Code, which terms adultery to be a criminal offence and allowing the women to enter and worship at Sabrimala temple.
SC delivered another landmark judgement, when it sat to decide upon another Macaulay legacy, Section 377 of the Indian Penal Code, which criminalises the sexual intercourse against the order of nature, thereby calling the sexual rights of LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community to be illegal and punishable.
It all started with the petition of Naz Foundation in Delhi High Court (HC). In 2009, the Delhi HC decriminalised sex between consenting adults of the same gender by holding the penal provisions as illegal. However, the HC judgement was overturned by the apex court in 2013 (Suresh Kumar Kaushal vs Naz Foundation). The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults.
In September 2018, the constitutional bench of SC revised its earlier judgement, and decriminalised the private consensual sexual conduct between the adults of same sex. The judgement was boosted by NALSA judgement (transgender rights) and Puttaswamy judgement (sexual orientation is an essential attribute of privacy). This adds to another attempt to dump the archaic laws that stands contradictory to modern democratic values.
The section has been challenged on grounds of being contradictory to Article 14 (Right to equality), Article 15 (no discrimination on the basis of birth or sex) and Article 21 (Right to
life and dignity – further Right to privacy). Such section goes against the right of self-determination and bodily integrity. Immanuel Kant’s categorical imperative called ‘individual
to be subject as well as sovereign of morality’. SC recognised the same and mentioned that ‘social morality cannot trump constitutional morality’.
The ‘majoritarian’ view held by the SC in Kaushal judgement to set aside Delhi HC judgment junking Section 377 i.e., denying LGBTQ community their fundamental rights on the basis that they form negligible part of the population was not seen as valid ground by the constitution bench. Section 377 has been a reason for injustice to the community historically as the burden of social taboos fall upon them. It has been a tool for harassment, discrimination and suppression. The stigma and ostracisation of the community people not only by the society at large, but also by their family historically and in the recent times as well led to pleading for
forgiveness by a SC judge. She said ‘society owes an apology to the LGBTQ community for the years of stigma imposed on them’.