Sensitise, give awareness training on plight of LGBTQ: SC to Centre

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New Delhi : The Supreme Court on Thursday asked the Centre to periodically sensitise and give awareness training to all government officials, including police officials, about the plight of people belonging to LGBTQ community.

Justice Rohinton F. Nariman, one of the five-bench judges, while decriminalising homosexuality between consenting adults, asked the Central government to ensure that this judgment is given wide publicity and initiate programmes to reduce and finally eliminate the "stigma associated" with such persons.

"We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programmes to reduce and finally eliminate the stigma associated with such persons.

"Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the states, be given periodic sensitisation and awareness training of the plight of such persons in the light of the observations contained in this judgment," Justice Nariman said in a 96-page judgment.

Justice Nariman in a concurring but separate judgment said that persons who are homosexual have a "fundamental right to live with dignity".

Declaring Section 377, the penal provision which criminalised gay sex, as "manifestly arbitrary", Justice Nariman further declared that such groups are entitled to the "protection of equal laws", and are "entitled to be treated in society as human beings without any stigma being attached to any of them".

Justice Nariman made a reference to an earlier judgment of the apex court saying that the right of every citizen of India to live with dignity and the right to privacy including the "right to make intimate choices" regarding the manner in which such individual wishes to live are being protected by Articles 14 (right to equality), 19 (freedom of speech) and 21 (right to life and personal liberty).

"It is clear that Section 377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons," he added in his separate judgment.

Justice Nariman made it clear that homosexuality was "not a mental disorder" and cannot therefore be penalised and Section 377 must be held to be a provision which is "capricious and irrational".

"Also, roping in such persons with sentences going up to life imprisonment is clearly excessive and disproportionate, as a result of which, when applied to such persons, Articles 14 and 21 of the Constitution would clearly be violated."

Tracking down the history of laws on homosexuality in England, America and other countries, including India, Justice Nariman said the court said at one point of time, the thinking in Victorian England and early on in America was that homosexuality was to be considered as a mental disorder.

But, the present definition of mental illness in the 2017 Parliamentary statute makes it clear that "homosexuality is not considered to be a mental illness" and this is a major advance in our law which has been recognised by Parliament itself, Justice Nariman held.

"Mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community. It is thus clear that the Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good. This is another very important step forward taken by the legislature itself.

"Morality and criminality are not co-extensive -- sin is not punishable on earth by courts set up by the state but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults," the judgement added.

Justice Nariman also opined that the very purpose of the fundamental rights chapter in the Constitution of India is to "withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this court to give effect to the rights, among others, of 'discrete and insular' minorities".

One such minority (LGBTQ) has knocked on the doors of this court as it is the custodian of the fundamental rights of citizens, said Justice Nariman, adding that these "fundamental rights do not depend upon the outcome of elections" and it is "not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality".