Social morality is not a rigid commandment. It changes with time. With advances in science, it is now possible to understand homosexuality without attaching any social stigma. Section 377 of the IPC, a colonial relic that criminalises consensual gay sex, has no place in a modern society. It is time the nation freed itself from the grip of Victorian morality and started respecting the sexual orientations of adult individuals. With the Supreme Court on Monday setting the stage for reconsideration of its much-criticised December 2013 verdict, upholding criminalisation of gay sex, there is now a new hope for the members of the lesbian, gay, bisexual and transgender (LGBT) community who have been fighting a prolonged battle for their rights. The apex court has referred to a larger bench a writ petition seeking to quash Section 377. Importantly, the court remarked that a section of people who exercise their sexual choice should never remain in a state of fear and that the definition of the order of nature, the basis of criminalisation of same-sex relationships, is not static and subject to change. Penalising people for their sexual orientation is incongruous with modernity and an affront on values of equality and justice. It is not the mandate of the state to peep into the private lives of citizens and decide what constitutes social morality. The decision of the bench, comprising Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud, to revisit the 2013 ruling comes as a huge relief for those fighting for gay rights.
Section 377 deals with ‘unnatural offences’ and stipulates ‘whoever voluntarily has carnal intercourse against the order of nature shall be punished with imprisonment for life or for a term which may extend to ten years’. The use of phraseology like ‘order of nature’ is out of tune with modern times. People are entitled to have their own perceptions of morality but the Constitution and laws should not be discriminatory. This provision is archaic and unconstitutional. Already, 47 countries, including the US, Britain, Germany, Australia, Canada, France and South Africa, have decriminalised gay sex while some recognise the marriage between same-sex partners. The law should stay out of the same-sex relationships as long as there is no coercion involved. In fact, the recent landmark verdict by Supreme Court, affirming privacy as a fundamental right, identified sexual orientation as one of the attributes of privacy. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on this basis is an attack on dignity and self-worth of the individual. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by the Constitution.