July 2, 2009

Gay Ho!

It's a victory for secular democracy in India.

In a landmark judgement, the Chief Justice Ajit Prakash Shah of the Delhi High Court, along with Dr. Justice S. Muralidhar, ruled in favor of the petitioner, Naz Foundation, and held that Section 377 of the Indian Penal Code in its current form violated the constitutional provisions of Article 21, Article 14, and Article 15, "insofar it criminalize[d] consensual sexual acts of adults in private". The ruling brings cheers not only to the LGBT community, but also to anyone who believes that liberty and equality before law cannot be held hostage in perpetuity to irrational beliefs and values.

The justices dismissed the government's arguments that homosexual conduct must be construed as unnatural and antihetical to the social traditions, and its dubious concerns about the spreading of diseases, as contrary to scientific findings and historical facts. Most importantly, the High Court, in holding Section 377 as in violation of the fundamental rights of the citizens, upheld the primacy of constitutional morality over popular morality:

Moral indignation, howsoever strong, is not a valid basis for overriding individual's fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view...

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.

Quoting from the Constitutional Assembly Debates, the Justices wrote:

While moving the Draft Constitution in the Assembly [Constitutional Assembly Debates: Official Reports Vol.VII: November 4, 1948, page 38], Dr. Ambedkar quoted Grote, the historian of Greece, who had said: "The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves."

After quoting Grote, Dr. Ambedkar added: "... The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic."

Well, it has been more than 60 years since then. I sincerely hope that the people of India have had the time to learn what it means to be a democracy, and that Prime Minister Manmohan Singh's government pays heed to Dr. Ambedkar's admonition, if and when the religious fundamentalists challenge the judgment in the Supreme Court.

Meanwhile, it's time to open the champagne bottle. Here's to Justices Shah and Muralidhar!

  1. I wish the issue of gender-minorities will boost the awakening of other not-so-colourful minorities who don’t even have a reason like a constitutional ban to fight against - people like mine workers, sanitation workers, aborigines etc. Gay rights indeed is a matter of concern I agree. But I’ve not seen any of the social networkers or TV experts talking passionately for days together about the rights and lives of so many of these minorities who don’t have a voice, who don’t know they are a minority, who never realized that they are being exploited, who don’t even know there is a constitution, there is a government, there are concerned people out there who can make their lives better… May be they are too insignificant a lot, maybe they are enjoying too much of constitutional right already, maybe it’s the governments job to address such issues, or maybe I’m too cynical a person. And all those religious, highly moral, compassionate people, don’t get me started on how you safeguarded the rights of thousands you all killed in the name of god.

  2. Do state High Courts have the authority to overturn IPC laws?

  3. etlamatey:
    Well, the Delhi High Court has just done that, sort of. I guesss the question is if the state government could amend the IPC.

    I am not knowledgeable enough on the Constitution of India, and the devolution of powers from the Union to the State Governments. A casual reading of the Schedule 7, suggests that the criminal law (in particular IPC Section 377) is in the concurrent list (both States and the Union can legislate).

    Also, this from the proceedings of Naz Foundation vs. Government of NCT of Delhi and Others:

    The ASG then drew the Court's attention to the seventh schedule of the Constitution that lists out subjects on which the Parliament and State legislatures can legislate. Pointing out to entries 1 {criminal law including IPC}, 2 {criminal procedure} and 3 {maintenance of public order} on the concurrent list {areas where both Parliament and State Legislature can make law} , the ASG said that so far, none of the States have repealed or even contemplated repealing Section 377. He argued that State legislatures reflect the will of the people, which is to retain proscriptions against sodomy. He pressed the Court to bear this fact in mind.

    I suppose, if the Union Government were to amend Section 377 in accordance with the Delhi High Court judgment, then the States would be free to restore it so as to once again criminalize homosexual conduct.

    There are two riders to this. First, the Union Government can amend the Seventh Schedule of the Constitution to include Section 377 in List 1, and thus put it beyond the reach of the states. I seriously doubt if this government has the spine to do this. Second - this is the more likely scenario - the Supreme Court could intervene, and affirm that criminalization of homosexual conduct - for that matter any private, consensual, sexual conduct between adults, for example, heterosexual oral sex, which may be construed as against the "order of nature" by certain sections of the society - is unconstitutional.

    I'd appreciate it if someone with a better appreciation of constitutional law in India responded to etlamatey's question. Thanks.


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