Fantastic judgement by the Indian High Court

As you may have heard, the High Court in New Delhi has recently overturned a law against homosexuality that was imposed on India by the British in 1861.  Section 377 of the Indian Penal Code read as follows:

377.  Unnatural Offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The law is noticeably vague, but it’s been interpreted as outlawing bestiality, paedophilia, non-consensual sex between men and women – and all forms of homosexual sex, whether consensual or not.  The petitioners had approached the court asking for Section 377 to be struck down only insofar as it related to homosexual sex between consenting adults in private.  Their case was that the criminalisation of homosexuality violated the Indian Constitution.

The court agreed with the petitioners, and overturned the law as they had asked.  This is, of course, a wonderful thing.  But what really struck me is the way it’s overturned, the way the judges chose to describe gay people, and the prejudice they face, and the reasons for overturning the law – my god, it’s fantastic!  There are times when it’s hard to remember that this is an official court judgement, and not a pro-equality statement by a gay rights organisation.  Anyway, these are some of the choice quotes from the judgement for you to savour and enjoy:

The sphere of privacy allows persons to develop human relationships without interference from the outside community or from the State. […] In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21.  Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

 – pp. 39-40

studies conducted in different parts of the world including India show that the criminalisation of same-sex conduct has a negative impact on the lives of these people.  Even when the penal provisions are not enforced, they reduce gay men or women to what one author has referred to as “unapprehended felons”, thus entrenching stigma and encouraging discrimination in different spheres of life.  Apart from misery and fear, a few of the more obvious consequences are harassment, blackmail, extortion and discrimination.  There is extensive material placed on the record in the form of affidavits, authoritative reports by well known agencies and judgements that testify to a widespread use of Section 377 IPC to brutalise MSM [Men who have Sex with Men] and gay community.

 – p. 41

The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. […] Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. […] In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour.

 – pp. 43-4

popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21.  Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.

 – p. 64

The Constitution of India recognises, protects and celebrates diversity.  To stigmatise or criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.

 – p. 65

Justice Michael Kirby, a distinguished former Judge of Australian High Court. […] said that criminalisation of private, consensual homosexual acts is a legacy of […] criminal codes […] imposed on colonial peoples by the imperial rules of the British Crown.  Such laws are wrong:

  • Wrong in legal principle because they exceed the proper ambit and function of the criminal law in a modern society;
  • Wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change.  In this respect they are like other laws of colonial times that disadvantages people on the ground of their race or sex;
  • Wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and
  • Wrong because they put a cohort of citizens into a position of stigma and shame […].

– pp. 71-2

Moral indignation, howsoever strong, is not a valid basis for overriding individuals’s fundamental rights of dignity and privacy.

 – p. 72

The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else.  It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society.  The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.

 – p. 77

Section 377 IPC […] apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community.  The fact is that these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class.  Section 377 IPC has the effect of viewing all gay men as criminals.  When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity.  They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do.  The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself.

 – p. 80

Section 377 IPC criminalises the acts of sexual minorities particularly men who have sex with men and gay men.  It disproportionately impacts them solely on the basis of their sexual orientation.  The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. […] 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

 – pp. 91-2

In the present case, the two constitutional rights relied upon, i.e. ‘right to personal liberty’ and ‘right to equality’ are fundamental human rights which belong to individuals simply by virtue of their humanity

 – p. 98

The role of the judiciary is to protect the fundamental rights.  A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view.

 – p. 100

Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.  It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

 – p. 104

See what I mean?  Isn’t it just fantastic?  Everything you could want mentioned is mentioned, but best of all is that the whole thing is based on the resounding principle that gay rights are fundamental human rights – that you can’t have human rights for anyone unless you have them for everyone, and that the courts have a duty to assert that, no matter who, or how many, disagree.

And as for that quote from page 72 – Moral indignation, howsoever strong, is not a valid basis for overriding individuals’s fundamental rights – I want to print that out and send a copy to every homophobe who tries to limit the freedom of their fellow citizens, whatever country they live in.  It doesn’t matter if they’re executing homosexuals (as some Islamist countries have a habit of doing), or trying to block marriage equality (as in the US and the UK), or even just trying to censor the books that appear on library shelves.  All of them need to read and understand – your moral objections are not enough to allow you to control the actions of your fellow human beings.

Now that’s what I call a principle to live life by.

This entry was posted in Sexuality, Stuff I've read. Bookmark the permalink.

2 Responses to Fantastic judgement by the Indian High Court

  1. Katherine says:

    We’re celebrating Independence Day this side of the pond today. After having seen this in the Guardian last night, I once again wondered why we think this independence thing is so fabulous all the time:
    This would never happen here. We can’t even get our president to extend healthcare benefits to same sex partners of people who work for the federal government in the not very large District of Columbia, despite all his high rhetoric about the scandal that is this nation’s healthcare system.
    Lawrence vs. Texas doesn’t have a patch on the Indian High court judgement either.

  2. It really is a great thing to read. You are right in that it clearly points out that gay rights are fundamental human rights and that’s really positive.

Comments are closed.