Imposing legal sanctions on consenting adults involved in a sexual relationship has given the state the authority to perpetuate social stereotypes and encourage discrimination, the Supreme Court said Thursday.
In a historic verdict, a five-judge constitution bench headed by Chief Justice Dipak Misra struck down part of Section 377 of IPC, which criminalised consensual unnatural sex, saying this penal provision has consigned a group of citizens to "the margins".
"What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting the existing lines of social authority," Justice D Y Chandrachud, who wrote a separate concurring verdict, noted.
He said the British-era law had continued to exist for nearly 68 years after the country came out with a "liberal Constitution" after gaining independence.
"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," he said, "while section 377 has been used to prosecute non-consensual sexual acts, it has also been used to prosecute consensual sexual acts."
Justice Chandrachud said that Section 377 has been "destructive" of the identities of members belonging to the lesbian, gay, bisexual and transgender (LGBT) community who have been relegated to the anguish of closeted 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," he said.
"The struggle of citizens belonging to sexual minorities is located within the larger history of the struggles against various forms of social subordination in India. The order of nature that section 377 speaks of is not just about non-procreative sex but is about forms of intimacy which the social order finds 'disturbing'," the judge noted.
He also said that sexual orientation has become "a target for exploitation, if not blackmail, in a networked and digital age" and Section 377 was destructive of an identity which was crucial to a dignified existence.
He said the entitlement of members of LGBT community 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," Justice Chandrachud said.
He referred to Article 372(1) of the Constitution, which provides that all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed, and said the IPC and many other pre-Independence laws were 'saved' and allowed to operate in independent India.
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