THE SUPREME COURT OF INDIA’S VERDICT DECRIMINALIZING HOMOSEXUALITY: AN ANALYSIS OF CONSTITUTIONAL RIGHTS OF THE LGBT COMMUNITY

Abstract

Former Chief Justice and Chairman of Law Commission of India, Dr. P.B. Gajendragadkar delivering the valedictory address before the National Correctional Conference on Probation in October, 1971 said, “Law cannot be defined in decisive and finalist terms because law is a living institution, it is dynamic and changes from time to time….,.The debate on the changing social and moral perception of homosexuality has been raging for a long time. The fifth Law Commission, had undertaken a comprehensive review of the more than a century, old IPC, and sought ‘informed public opinion’ on decriminalization of homosexuality and the punishment provided therefore, and decriminalization of consensual sexual act between adults in private for suggesting reforms in the provisions of section 377 of the Penal Code. The Supreme Court in its September 6, 2018 verdict ruled that its 2014 NALSA judgment granting legal recognition to transgender cannot be applied to lesbians, gays and bisexuals. The judgment of Supreme Court of India, however, declared that insofar as Section 377 criminalizes consensual sexual acts of adults in private, it is violative of Articles 14, 15, 19 and 21 of the Constitution.  In the light of the Supreme Court’s verdict of September 6, 2018 the present paper analyses the constitutional rights of the LGBT community in India.