Top judges of world’s largest democracy strike down anti-gay sex law

23 February 2019 · Carmel Rickard

INDIA’S highest court has struck down the country’s anti-gay sex law as unconstitutional. The decision, widely welcomed as conforming to a modern understanding of constitutionality and rights, was the result of India’s highest court, the supreme court, reconsidering the validity of Section 377 of the Indian Penal Code. The judgment, likely to be hugely influential worldwide, followed a 2013 decision of the same court when two judges upheld the Code. Earlier this year, however, the supreme court decided to revisit the issue, but with a larger bench.

FIVE judges of India’s supreme court, including the chief justice, heard the challenge to Section 377 of the Indian Penal Code in July this year, and since then their decision has been eagerly anticipated.

At 495 pages, this week’s judgment includes four separate concurring decisions, all concluding that the 158-year old provision is unconstitutional and invalid to the extent that it prohibits consensual sexual acts between adults in private.

The case had been brought in the names of a number of individuals who expressed their concern that the section discriminated against them, made them targets of police and other social repression, invaded their rights to privacy and prevented them from living their lives fully, this despite the fact that the law was rarely enforced.

Apart from fully reasoned decisions on why the section was unconstitutional, the judgment included other important orders. The judges said their decision should be widely circulated by government and given publicity through public media. They also ordered that “all government officials” and police in particular, should be given sensitivity training on the issue of gay rights to reduce and ultimately eliminate the stigma experienced by that community.

Another unexpected development – an apology for the suffering of gay people caused by the law – came from Judge Indu Malhotra, sworn in as a member of the supreme court just a few months ago and the only woman on the five-member panel. She said history “owed an apology” to the gay community and their families for the delay in redressing the “ignominy and ostracism” they had experienced through the centuries.

In reaching its decision the court quoted from other jurisdictions worldwide, including several judgments of SA’s constitutional court. The judges said that provisions similar to India’s Section 377 were introduced by Britain to its other colonies including present-day Tanzania, Kenya and Uganda. Anti-homosexual laws in England and Wales had led to more than 400 men being sentenced to death there between 1806 and 1861. Some 56 men were executed, with the last executions taking places in 1835.

The fact that fewer than 200 people had been prosecuted under India’s Section 377 was “neither here nor there”. The section outlawed sexual acts “against the order of nature” with imprisonment for up to 10 years on conviction. In doing so, the criminal law “became a willing instrument of repression”.

The section impacted on lesbian, bisexual, gay and transgender (LBGT) people in many ways including “pushing them out of the public health system” because of fear that they would be identified and prosecuted.

The judges said that popular, even majority opinion, was not a valid basis on which to disregard rights “conferred with the sanctity of constitutional protection”. Minorities faced serious discrimination simply because they were different from the majority but under a “democratic Constitution founded on the Rule of Law, it does not mean that their rights are any less sacred than those conferred on other citizens”.

The judgment contains many significant expressions of outrage by the court at the suffering caused by the law including this:

“Indian citizens belonging to sexual minorities have waited. They have waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic colonial-era law – forcing them to live in hiding, in fear, and as second-class citizens. In seeking an adjudication of the validity of Section 377, these citizens urge that the acts which the provision makes culpable should be decriminalised.

“But this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law. The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship. Above all, our decision will speak to the transformative power of the Constitution. For it is in the transformation of society that the Constitution seeks to assure the values of a just, humane and compassionate existence to all her citizens.”

The judges discussed in some depth the concept of “constitutional morality” which, they said, required them not to ignore the right of the LBGT community to “an equal participation of citizenship and an equal enjoyment of living.”

“Constitutional morality requires that this Court must act as a counter majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe. Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution.

“The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters.”

Read Johar v Union of India (PDF)

Carmel Rickard

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