New Delhi: Justice DY Chandrachud began his judgment by depreciating the “lethargy of the law” in doing away with a colonial legislature that made it criminal even for consenting adults of the same gender to find fulfillment in love while Justice Indu Malhotra said the history owes an apology to the members of the LGBT community and their families for the delay in removing this ignominy and ostracism that they have suffered through the centuries.
Writing her first judgment in a Constitution Bench, Justice Malhota described homosexuality as “a natural variant of human sexuality” and regretted that the LGBT community, which is a “sexual minority”, has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Articles 14 and 15 (equality and non-discrimination).
The sole woman judge on the Constitution Bench that decriminalised gay sex between consenting adults in private emphasized that homosexuality and bisexuality are natural variants of human sexuality.
“Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice…LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution,” said Justice Malhotra.
The members of this community were compelled to live a life full of fear of reprisal and persecution, said Justice Malhotra, adding that this was only on account of the “ignorance of the majority to recognise that homosexuality is a completely natural condition”.
She added that members of the LGBT community are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners.
Such choices, the judge said, must be protected under Article 21 (right to life) as well because the right to life and liberty would also essentially encompass the right to sexual autonomy, and freedom of expression.
“Section 377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia… it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’…” held Justice Malhotra.
She further said that the social ostracism against LGBT persons prevents them from partaking in all activities as full citizens, and in turn impedes them from realising their fullest potential as human beings, thereby preventing LGBT persons from leading a dignified life as guaranteed by Article 21.
Justice Malhotra finally held that The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
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