four-judge Supreme Court Bench led by Chief Justice Dipak Misra did the most sensible thing. As Chief Justice Dipak Misra wrote: “Section 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC.”
The petitioners were rightly and only concerned with consenting adults engaged in homosexual relationship implied in Section 377. The Supreme Court rightly responded declaring that consensual sex between two adults of the same sex cannot be an offence.
The four judges were overturning the earlier Suresh Koushal verdict of the court which had overturned the Delhi High Court verdict de-criminalising homosexuality. The present judgment had to establish the legal rationale against the Suresh Koushal verdict. But the court in doing so has gone a little too poetic, too rhetorical and too ideological in putting forward the doctrine of “transformative constitutionalism”. Chief Justice Dipak Misra says, “Our Constitution has been perceived to be transformative in the sense that the interpretation of its provisions should not be limited to the mere literal meaning of its words; instead they ought to be given a meaningful construction which is reflective of their intent and purpose in consonance with the changing times.” This is fuzzy thinking at best. Even the distinction that has been sought to be made between “constitutional morality” and “social morality” is unconvincing.
The crux of the issue is that fundamental rights cannot be violated even if they concern just an individual or a small group of individuals. Chief Justice Misra rightly states: “...for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/are in peril.”
Justice Indu Malhotra in her concurrent judgment has reiterated the point: “The mere fact that the LGBT persons constitute a “minuscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21. “
Both Justices Rohinton Mistry and D.Y.Chandrachud had traced the origins of Section 377 to English law based on Judaeo-Christian principles, and both said that like in the triple talaq case, when an idea or principle militates against common sense and rationality, then the offending provision must go. But all of them had to stop short of scrapping the provision in toto. They held that only consenting adults of a same-sex relationship will be free from the penal provisions of Section 377. Justice Chandrachud was quite unhappy with the fact the government did not take a stand in the matter.
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