Sexuality Equality

Invoking Jawaharlal Nehru and the Constitution’s spirit of inclusiveness,Chief Justice Ajit Prakash Shah and Justice S. Muralidhar held that Section 377 of the Indian Penal Code,“insofar (as) it criminalises consensual sexual acts of adults in private,” violated the principles of equality and non-discrimination contained in Articles 14,15 and 21 of the Indian Constitution.

Article 14 guarantees all people “equality before the law,” Article 15 prohibits discrimination “on grounds of religion,race,caste,sex or place of birth,” and Article 21 guarantees “protection of life and personal liberty.”

There was hushed silence in the packed courtroom as Chief Justice Shah began reading out the concluding part of the judgment eight years after the case was first filed. The petitioners Naz Foundation,along with an activist group ‘Voices Against 377,’ had argued that the law violated the constitutional rights of homosexuals and that the Section should be “read down” to exclude “consensual sex between adults” from its ambit.

When Justice Shah came to the verdict’s key sentence — that parts of Section 377 were unconstitutional — there were loud cheers. As the judges left the court,many hugged each other while some sobbed gently. Lesley Esteves,a gay activist present in court,began crying when she realised the import of what the judge was saying. She termed the judgment “historic” and told The Indian Express that “emotionally,she had been waiting for this all her life.”

Observing that “discrimination is antithesis of equality,” the court relied extensively on previous case law to hold that Section 377 “discriminates (against) a section of people solely on the ground of their sexual orientation,which is analogous to (the) prohibited ground of sex.”

“A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15,” the court held. “Sexual orientation is a ground analogous to sex and that discrimination is not permitted by Article 15…Article 15 must be read expansively to include a prohibition of discrimination on the ground of sexual orientation as the prohibited ground of sex discrimination cannot be read as applying to gender simpliciter.”

The judgment quoted extensively from Nehru. In 1946,Nehru gave a speech to the Constituent Assembly on the values the soon-to-be-drafted Constitution must exemplify. The judgment relies on Nehru’s call for “inclusiveness and understanding;” for a society in which “those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.” The court also pointed out that “inclusiveness,” the “underlying theme” of the Indian Constitution,is based on traditional Indian values of “a role in society for everyone.”

Section 377 would,however,continue to apply to non-consensual non-adult sexual acts such as child abuse.

The verdict assumes significance as India is the only major liberal democracy to still have laws that criminalise gay sex. The verdict also marks the end of a colonial legacy. Section 377,drafted in 1860 in British-ruled India,reflected the social mores of Victorian England. Britain herself has long since decriminalised homosexuality. However,international advocacy group Human Rights Watch estimates that of the 80-odd countries with laws that still criminalise gay sex,“more than half those countries have these laws because they once were British colonies.”

The verdict will also make it easier to provide medical treatment to gays,many of whom are at high risk of HIV-Aids. The National Aids Control Organisation,run by the Union Health Ministry,had in fact filed an affidavit before the Delhi High Court stating that Section 377 made it difficult for them to implement health measures amongst India’s 23 lakh homosexuals. The Home Ministry had,however,opposed the move.

The current UPA government had initially moved to repeal Section 377,but later backtracked “to hold discussions with all sections of society,” including religious leaders. In contrast,the court said that “in our view,Indian Constitutional law does not permit criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbians,gays,bisexuals,transgenders) are.”

Without explicitly suggesting so,the court also hinted to Parliament to “effectuate the recommendations of the Law Commission of India in its 172nd Report.” The Law Commission’s report had recommended that Parliament amend Section 377 through legislation.

Purushottaman Mulloli,whose organisation Joint Action Council,Kannur (JACK) had opposed the petition in court,told The Indian Express that he was “disappointed with the verdict,” and was considering filing an appeal in the Supreme Court.

Though the verdict is high on symbolism,it applies only within the state of Delhi. An appeal in the Supreme Court might take a while. For the moment,though,as a 149-year-old law faces its biggest defeat,Mayur Suresh,a gay man and lawyer in the case,said he was “simply soaking in the significance of the moment.”