India decriminalises gay sex: Another win for the Supreme Court

India’s Supreme Court – arguably the world’s most activist court – has struck a blow for autonomy and equality by offering a “rainbow of hope” for LGBTIQ Indians. The surprising thing is not that the apex court has struck down section 377 of the Indian Penal Code (IPC) – which criminalised same-sex intercourse – but that it took so long.

India’s highest court has a long tradition of developing new fundamental rights and crafting innovative remedies for violations in favour of disenfranchised communities by adopting expansive readings of constitutional provisions. However, the cause of sexual minorities was stymied by India’s extremely conservative social context and a previous panel of judges had upheld the constitutional validity of section 377. That retrograde judgment had condemned India’s LGBTIQ community to a life of fear – of arbitrary enforcement actions, intimidation, and threats at the hands of both the police and self-appointed vigilantes.

The Supreme Court’s decision in Navtej Singh Johar v Union of India, issued on September 6, may not immediately end all that and modernise India’s puritanical society, but it will empower sexual minorities to emerge from the shadows and exercise their basic liberties.

What is the case about?

The case is about the constitutionality of section 377 of the IPC, which states:

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 a fine.

The fight dates back to a case brought by a non-governmental organisation almost two decades ago. In 2001, the Naz Foundation India, an NGO committed to HIV/AIDS intervention and prevention, filed a public interest litigation in the Delhi High Court challenging the constitutionality of Section 377.

In 2009, the Court ruled that consensual sex between two adults of the same sex was legal. However, the ruling was challenged in the Supreme Court. In 2013, the Supreme Court reversed the Delhi High Court decision and held that section 377 was constitutional. 

Following widespread condemnation, the Court agreed to hear a curative petition and then referred the matter to a Constitution Bench of five judges. The petitioners argued that section 377 violates their right to privacy, right to dignity, equality, liberty and right to freedom of expression. In the interregnum, the Supreme Court issued a landmark ruling in the Puttaswamy case recognising the right to privacy as a fundamental right. 

What did the Supreme Court rule?

After it recognised the fundamental right to privacy in Puttaswamy, the court had little choice but to decriminalise homosexuality. And, in that sense, this decision was entirely predictable. However, the justifications presented for striking down section 377 are important both for India’s rights jurisprudence in general and for claims currently being agitated by women and minorities in other cases. Therefore, the court’s ruling is of enormous significance, even beyond the rights of sexual minorities.

The five judges were unanimous in striking down section 377, but issued four separate judgments: Chief Justice Dipak Misra and Justice AM Khanwilkar issued a joint opinion, whereas justices DY Chandrachud, RF Nariman, and Indu Malhotra issued separate opinions.

Chief Justice Misra’s opinion expresses a broad conception of the court’s power with regard to constitutional interpretation: “the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social-science approach, not by pedantic, traditional legalism.” He claims that the “the purpose of having a Constitution is to transform the society for the better,” and constructs the doctrine of “transformative constitutionalism,” which is the “ability of the Constitution to adapt and transform with the changing needs of the times.”

The judge also proclaims that “it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they, with the aid of judicial creativity, are able to fulfil their foremost constitutional obligation, that is, to protect the rights bestowed upon the citizens of our country by the Constitution.”

These statements are concerning because they take the court into dangerous territory – legislating from the bench. In applying this broad interpretive power, Chief Justice Misra gives short shrift to “social morality” and majoritarianism. He writes that an “attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” The risk from such statements is that they undermine the democratically elected legislative branch (Parliament) and impose the views of unelected judges upon the will of the people.

While the Court’s apparent decision to ignore such restraints is indeed concerning, it needs to be noted that the ruling Bharatiya Janata Party (BJP), which has an overwhelming majority in parliament, has been silent on the issue of homosexuality so far. The government declined to even express an opinion on the constitutionality of section 377 in this case, and told the top court it would leave the decision to “the wisdom of the court”.

‘Even a small minority’s rights matter’

Undoubtedly emboldened by the government’s silence, and after a lengthy survey of cases from the US, South Africa, Canada, etc, Misra wrote that the “mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of Section 377 … is low” does not mean that their rights should not be protected. The reason is simple: the constitution’s “framers could have never intended that the protection of fundamental rights was only for the majority population.” The judge referenced Martin Luther King Jr’s words: “Injustice anywhere is a threat to justice Everywhere,” to support the idea that even a small minority’s rights matter. He might have missed the contradiction between consulting the framers’ intent and his doctrine of transformative constitutionalism.

The court ruled that section 377 “abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”

Misra concluded that Section 377, “so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.” The section was also struck down under article 19 of the constitution as being violative of the right to freedom of expression. The Chief Justice also opined that the LGBT community “possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights.”

The decision’s significance

To be sure, the decision is epochal. The court must be commended for not being deterred by the pusillanimity of the government. It would have been easy for the court to hand-ball the matter back to the legislative and executive branches. Instead, the court recognised that the abject failure of these two branches of government results in gross violations of human rights and that it could not sit on its hands. 

Constitutional purists will cavil that the court could have come to the same conclusion within a tighter framework for reasoning because there is no rational basis for the state to intrude on private relations between consenting adults. The court’s long-standing precedents on the right to life, equality, dignity, and the newly established privacy right all justify striking down section 377. Therefore, the court did not need to make broad obiter remarks further expanding its powers. For instance, Chief Justice Misra’s claim that “Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society,” may be telegraphing a further expansion of judicially crafted fundamental rights. While these criticisms have merit, this outcome must be cheered given the unique Indian context of poor governance and legislative inaction. The court, once again, is forced to provide the only solace for the desperate. The only question is whether Indian society’s morality will be so easy to transform.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.