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Mainstream, Vol XLVII, No 31, July 18, 2009

Landmark Judgment on Gay Rights: Litmus Test for Tolerance

Saturday 18 July 2009, by Praful Bidwai


The Delhi High Court judgment in the Naz Foundation case is a landmark verdict which decriminalises homosexuality and strikes a blow in favour of personal freedom on the solid foundations of inclusiveness and respect for diversity. It deserves to be welcomed by all those who value constitutional morality and the principles of personal privacy and human dignity. It “reads down” Section 377 of the Indian Penal Code—which treats “carnal intercourse against the order of nature” as a punishable offence—by confining its application to non-consensual penile non-vaginal intercourse and paedophilia.

One doesn’t have to be even remotely inclined to a particular sexual orientation or a belief system other than tolerance to appreciate the scope and logic of this judgment by Justices A.P. Shah and S. Muralidhar. It conceptualises freedom expansively within an uncompromisingly modernist perspective and offers a social vision that genuinely respects difference and diversity and does not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth (Article 15 of the Constitution).

The verdict doesn’t merely uphold the rights of the lesbian, gay, bisexual and transgender (LGBT) communities. It enriches our understanding of discrimination, prejudice and social exclusion, and imparts new meanings to the concepts of inclusiveness, liberty and human dignity. It speaks to all citizens. It concerns all of us. That’s why we must all welcome it.

It’s dismaying therefore that relatively few social and political organisations have extended support to the judgment and committed themselves to amending Section 377 of the IPC. Religious groupings across the spectrum have expectedly opposed it. Less expectedly, no political party, barring the Communist Party of India-Marxist and the Nationalist Congress, has welcomed it, and that too with caution. The Congress is badly divided on the issue. The Hindu Right fiercely opposes the verdict.

Yet, there are compelling reasons to break the social taboo against non-heterosexual orientations. It bears recalling that Section 377 is a colonial legacy enacted in 1860 by Lord Macaulay, who was as deeply rooted in Victorian morality as he was devoted to the British Empire. It followed a larger agenda which Macaulay himself defined in 1825:

…I propose that we replace [India’s] old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native culture and … become what we want them, a truly dominated nation…

Victorian morality was ultra-conservative and had a puritanical notion of sex as legitimate only for procreation. It was also profoundly hypocritical. Upper-class Victorians would cover the legs of their tables and chairs! But prostitution and child abuse were rampant. Wealthy aristocrats would have sex with under-age virgins in the ridiculous belief that it would rid them of venereal diseases. Section 377 is a leftover of the anti-sodomy laws of that period. It should have been abolished decades ago. That task is still nationally overdue. The Delhi judgment is a good beginning.


The judgment’s central rationale lies in the extension of the definition of sex to include not just gender, but a person’s sexual orientation, as a ground for discrimination, exclusion and punishment, and its elaboration of the right to life under Article 21 as including the right to a dignified existence and privacy, and the inviolable liberties guaranteed by Article 19.

All these fundamental rights, including the right to equal treatment and non-discrimination (Articles 14 and 15), it cogently argues, are violated by Section 377, which involves “unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits”, quoting a Canadian judgment.

Human dignity means that an individual or group feels self-respect and self-worth [and concerns]… physical and psychological integrity…Human dignity is harmed when individuals and groups are marginalised, ignored or devalued.

This is precisely what Section 377 does.

Section 377’s basis lies not in science or rationality, but in hopelessly archaic notions of “deviant sexual behaviour”. The judgment reviews the current scientific and professional literature on the issue and notes that according to psychologists, “the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence”. These patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality.

The judgment makes an impressive survey of contemporary jurisprudence, including verdicts from different countries, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, formulated in 2007 by experts from 25 countries, including a former UN High Commissioner for Human Rights, numerous judges, academics and activists.

These principles recognise that “human beings of all sexual orientation and gender identities are entitled to the full enjoyment of all human rights”. All have the right to privacy. Every citizen has a right to take part in the conduct of public affairs including the right to stand for elected office, participate in the formulation of policies affecting their welfare, with equal access to all levels of public service and employment without discri-mination.

Says the judgment:

The constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.

Equally illuminating is the verdict’s discussion of the right to privacy, or a “space in which man may become and remain himself”. The right to be let alone doesn’t derive from efforts to protect other interests.

It should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalisation.

We all have a right to a sphere of private intimacy and autonomy and to nurture human relationships without interference from outside.

The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.

The only limitation is that this must be done without using coercion or harming others.

The judgment persuasively shows that religious faith, tradition or customs cannot be an argument for restricting liberty, including sexual freedom. Underlying this argument, quoting a South African judicial committee, is

revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion… But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour…

The argument that the state should criminalise homosexuality “to preserve public order and decency” and protect citizens from what is offensive or injurious is wrong in principle because such means exceed the proper ambit and function of criminal law in modern society. They oppress a minority 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 disadvantaged people on the ground of their race or sex. They also fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS.

It’s simply wrong to contend that decrimi-nalising homosexuality would corrupt public morals and encourage delinquent behaviour. The contention fails all three tests applied by the Delhi judges: reasonableness, strict scrutiny (of laws not for their stated goals, but for implications and effects), and proportionality between ends and means.

We all have our sexual preferences and differing opinions on the issue. A majority of people probably disapprove of non-heterosexual relations. This reflects the heavy burden of patriarchy in this society. But that’s no reason why majoritarian views should be allowed to stigmatise specific sex orientations and destroy individual autonomy, dignity and freedom.

The judgement deserves to become our own Brown vs Board of Education (which abolished racial segregation in US schools) or Roe vs Wade (which legalised abortion)—a marker of the victory of a social struggle for justice. But for that to happen, we’ll have to educate opinion-makers and shapers, the Swami Ramdevs and Laloo Prasads, besides bureaucrats, jurists, members of the National Commission on Women, and many others.

The author, a free-lance journalist, is a well-known political commentator.

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