New Delhi: “Who decides what is natural and what is unnatural? Can state be allowed to decide”, asked Dhananjaya Y Chandrachud, in his separate verdict on the validity of Section 377, and said that the “denial of right to sexual orientation is denial of privacy rights.”
Justice Chandrachud, part of the five-judge bench to unanimously end the colonial-era ban on gay sex, said that human sexuality couldn’t be “reduced to a binary formulation” and that section 377 had deprived the LGBTQ community “of the simple right as human beings to live, love and partner as nature made them.”
Pointing out that Section 377 exacted conformity backed with punitive reprisal, there remained a divide between the values of morality on which the “anachronistic colonial law” was based and those of the constitution.
He said that unless “as a society” we questioned the “forms and symbols of injustice”, “we risk becoming the cause and not just the inheritors of an unjust society.”
“Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which define their identities?” he wrote.
“In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation,” he added.
He also delved into the moral framework surrounding the colonial origins of Section 377 and wrote that it was based on the notion the “sole purpose of intercourse is procreation” and “that intercourse which is lustful is to be frowned upon.”
“In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature” and “would have human beings lead sanitized lives, in which physical relationships are conditioned by a moral notion of what nature does or does not ordain.”
Like Justice Rohinton F Nariman, he also spoke about the central government’s decision to not oppose the petitions seeking the de-criminalisation of gay sex between consenting adults and wrote that while reflecting upon the appeal to the court’s wisdom, it was important to remember “a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible.”
The case, he said, wasn’t merely one pertaining to “decriminalising certain conduct which has been proscribed by a colonial law”, but was an “an aspiration to realise constitutional rights”.
He also pointed out the health implications of section 377 and wrote that “a healthy sex life is integral to an individual’s physical and mental health” regardless of attraction or orientation and said that “criminalising certain sexual acts, thereby shunning them from the mainstream discourse, would invariably lead to situations of unsafe sex, coercion, and a lack of sound medical advice and sexual education, if any at all.”
He also noted that section 377 has a “significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with me and transgender persons.”
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