Social Justice

KEY POINTS­

·         Section 377 criminalises sexual activities “against the order of nature”, including homosexual activities.

·         It typecasts LGBTQ individuals as sex-offenders and categorises their consensual conduct on par with sexual offences like rape and child molestation.

Social Morality

·         Section 377 is based on deep-rooted gender stereotypes ingrained in the society.

·         It speaks not just about non-procreative sex but also about forms of intimacy that the prevailing social order finds ‘disturbing’.

·         This tendency arises from the limits imposed on individuals by social structures such as gender, caste, class, religion and community.

·         These perceptions and attitudes prescribe a code of life to which the majority adhere to.

·         It has thus received a social acclaim and has eventually become the social order and social morality which are justifiable within the existing social context.

·         However there are concerns associated with it:

·         It is a majoritarian impulse to subjugate a sexual minority to live in silence.

·         It has led to stigmatisation and condemnation of LGBTQ persons in society, who are equal individuals.

Individual rights

·         Homosexuals, as individuals, have a fundamental right to live with dignity and possess full range of constitutional rights.

·         These include sexual orientation, partner choice, equal citizenship and equal protection of laws.

·         Sexual orientation is biological and innate as an individual has no control over who they get attracted to.

·         Certainly, the State cannot decide the boundaries between what is permissible and what is not.

·         Any repression of this by the state will be a violation of free expression.

·         Given these, the judgment underlines the fact that societal morality cannot override constitutional morality and fundamental rights of an individual.

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