ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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A Ruling against Discrimination

The court has decriminalised homosexuality, but will the executive take a categorical stand?

The frontier of civil rights has just been extended to include a large part of the world. On 2 July the Delhi High Court “read down” the aspect of Section 377 of the Indian Penal Code which hitherto criminalised “carnal intercourse against the order of nature”. The result is that the Section remains to protect minors and guard against rape, but that consensual sexual acts b etween adults of the same sex are no longer criminal. This saves India the dubious distinction of being among 80-odd countries in the world that have anti-gay laws on their statute books. If a counter is at all needed to the anxiety that the decriminalisation of homosexuality is a capitulation to western mores one need only ponder the reality that not even China criminalises homosexual behaviour and Nepal actually acknowledges its validity in its constitution. India had been out of step with the world on this score. While this itself need not worry us, the fact that by nurturing such laws India may have all along been out of touch with herself is of some relevance. It is this reasoning that Justices A P Shah and S Muralidhar had used in their judgment. As we have long argued for a decriminalisation of consensual sex acts in private by males (“Denial of Rights to Sexual Minorities”, 25 October 2008), we are interested here in the process by which it has come about and the reactions that it has evoked as these have wider implications for our democracy.

The Delhi High Court first made a distinction between public and constitutional morality, a distinction that had been made by Ambedkar to assert that the reasoning of the state can only ever be guided by the latter. The context was the government’s plea for the maintenance of Section 377 on grounds that its repeal would open the floodgates of delinquency, offending the m orality of the Indian public. Thus, for the court, moral indignation was not a ground to deny India’s gay citizens the f undamental rights guaranteed by the Constitution. This led the court to the second strand of its argument. Harking back to N ehru’s speech to the Constituent Assembly it stated that if there is a principle underlying the Indian Constitution it is that of i nclusion. For the justices this stemmed from Indian society’s idea of itself as granting “a role for everyone”, and led to them concluding that no one can be e xcluded on grounds that the m ajority viewed them as “d eviants”. The core of the judgment was that the criminalisation of h omosexuality contravened the right to liberty, equality and nondiscrimination guaranteed by the Constitution.

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