GAY SEX Vs MORAL VALUES - COURT INTERPRETATION

The Division Bench of the High Court extensively considered the contentions of the parties and declared that Section 377, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution.  While dealing with the question relating to violation of Article 21, the High Court outlined the enlarged scope of the right to life and liberty which also includes right to protection of one’s dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgements, the literature and international understanding (Yogyakarta Principles) relating to sexuality as a form of identity and the global trends in the protection of privacy and dignity rights of homosexuals and held:

“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.

The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs.

The number of lesbians and transgender is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied “moral full citizenship”. Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution – Cornerstone of A Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”. In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen.

A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the “reasonableness” test.”

Sources: The Supreme Court Judgement in CIVIL APPEAL NO. 10972  OF 2013 and Photo sources is twitter.com