Justice AP Shah

Historic verdict: SC rules gay sex is not a crime; what is Section 377?

, architect of the landmark Delhi high court judgment that first decriminalised homosexuality in July 2009, writes exclusively for TOISixty-eight years after the founding fathers of the Republic of India encoded the right to freedom of life and liberty, the Supreme Court has finally upheld the right of every human being to be free, regardless of sexual orientation or identity. With this, the draconian and anachronistic section 377 of the Indian Penal Code (IPC) will no longer apply to consensual sexual relations among adults in private.This will mark an end of an era, where this law will no longer be available for use or abuse, to foster, facilitate, or perpetuate, an atmosphere conducive to human rights violations of a certain kind, and will put an end to the discrimination that many millions have faced because of their sexual orientation or gender identity for so many years now. India now joins a proud league of nations that recognises true freedom of gender identity and sexual expression. This ruling of the Supreme Court will not only impact India, but will also undoubtedly have immense transnational value. The effect of this judgement is especially likely to be felt in other common law countries, and it will, hopefully, provide an impetus to those countries that still have equivalent provisions in their statute books, to critically consider the lawfulness and legality of provisions that similarly criminalise consensual sexual relations.We have come a long way from the journey that started with Naz Foundation , a non-governmental organisation (NGO) fighting for gay rights, when it instituted the original lawsuit in the Delhi high court in 2001. The lawsuit sought to decriminalise homosexuality. After first being dismissed, the Supreme Court returned the petition to the High Court to reconsider the case on merit. A widely-documented hearing followed, which included contradictory stands taken by the government itself. On July 2, 2009, a division bench of the Delhi High Court held, among other things, that section 377 violated Article 21 of the Indian Constitution. In 2013, a two-judge bench of the Supreme Court reversed the HC's 2009 decision.The thoughtless judgment of a two-judge SC bench in 2013 re-criminalised millions of Indians in an instant. Naz filed a curative petition, arguing that the decision wrongly held that a "minuscule fraction of population cannot claim fundamental rights". Meanwhile, another two-judge bench of the Supreme Court, in 2014, in 'NALSA vs. Union of India', granted personhood to transgenders, a sign that the highest court was open to considering more expansive notions of freedom.In 2017, in 'Justice Puttaswamy vs Union of India', a Constitution bench of the Supreme Court held that privacy is a fundamental right. Justice Chandrachud, in particular, called out the Section 377 decision as being "unsustainable", noting that the "right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution". This bench did not outrightly declare Section 377 to be unconstitutional, as the review petition was still pending for determination. But everyone knew that it was only a matter of time when it would be reconsidered.The present decision, as much as it was expected, leads one to believe that the Indian judiciary is indeed the last bastion of fundamental rights in the country. The legislature and the executive each had their chances to undo what our colonisers had left behind, but chose to do nothing. The judiciary, after swinging this way and that, eventually found reason, and brought order to chaos. In this background, Justice Kennedy's majority opinion in the US Supreme Court gay marriage ruling in 'Obergefell vs Hodges' bears reiteration: "The nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."No kind of prejudice and discrimination can continue in perpetuity. Section 377 was introduced in Indian criminal law in furtherance of western notions of morality, based on Abrahamic ideologies. At the time of its introduction, limited consideration was given to a contradictory morality that existed in the subcontinent, which acknowledged and recognised homosexuality, and did not criminalise it. Even as the UK and other jurisdictions abandoned it for a more reasoned position of homosexuality being nothing but a variation in human nature, Indian governments and other public institutions, over the decades, have tried to perpetuate antiquarian ideas. There was no explicable justification for this law to remain. This decision has thankfully undone the artificial construct that was Section 377, and in doing so, it also recognises the triumph of constitutional morality over public morality.Throughout this process, and indeed, through deliberations around law making generally, we should not lose sight of the fact that laws like the IPC are neither Indian nor god-given. Laws like these are not immutable. And in fact, they lose value if they are not abandoned, rewritten, or amended, to suit changing social, cultural, and economic needs.Even as our immediate reaction is one of relief, and joy, this decision is only the beginning of the long walk to ultimate freedom for all. International law strictly prohibits any discrimination on the grounds of sexual orientation or gender identity. The Office of the UN High Commissioner of the Human Rights oblige states to protect individuals from homophobic violence; prevent such violence; decriminalise homosexuality; prohibit discrimination; and respect fundamental freedoms of all persons. The removal of Section 377, which decriminalises homosexuality, is but one step towards meeting these obligations.The recently expanded Yogyakarta Principles, referred to by both the Delhi high court and the SC in their judgments, further reiterates the application of international human rights law to LGBT people. This is an opportune moment to adopt these principles in a structured manner. Inarguably, this decision is only the gateway for many more changes.Ideally, we should consider enacting a law that explicitly protects against discrimination, in pursuit of these obligations. We must recognise the detrimental effect that laws like Section 377 have had for generations of people in our country. Target populations have been psychologically scarred, subjected to violence and discrimination, not just at the hands of the police and enforcement authorities, but also society at large. A reading down of Section 377 is only the start of a larger drive to protect this idea of freedom of personal identity. Going forward, this cannot mean mere passive non-interference, but also active protection of, vulnerable populations. This may also mean that some form of affirmative action is required to make sure that frictionless assimilation actually takes place.Beyond decriminalising homosexuality, we need to think about how homosexuals and persons who identify themselves as being outside the conventional binary, can be integrated into society without using their gender or sexuality as the foci of such integration. So, for example, we need to start thinking of how social institutions like marriage or parenting can be re-imagined; we need to redesign pedagogical tools to embrace these differences; we need to redevelop institutions like schools and workplaces to make them all inclusive.This is only the dawn of a new era. True and complete freedom is yet to be achieved. We can say that we have won freedom, fully, only when everyone, all over India, genuinely and whole-heartedly, believes that no person is 'different'. The idea that everyone is equal is sacrosanct, and at its heart, is really uncomplex: that everyone can love equally, freely and fearlessly. The day we can assure each ourselves of this, is the day we can say that we have truly won our freedom.