I am really happy today over the Delhi High Court ruling parts of Section 377 unconstitutional. The ruling is available in PDF format here. The entire judgement is awesome. The judges did not restrict themselves to narrow legal issues, but spoke overwhelmingly about broad constitutional issues such as privacy, dignity and equality.
In the run up to the court case there was a lot of discussion about homosexuals accelerating the spread of HIV/AIDS, and that was one argument for same-sex intercourse to remain illegal. I was always baffled by such discussion and to me the issue was about privacy and individual liberties in a democratic society. It was clear to me as day, that Section 377 is unconstitutional. I am glad that the Judges spoke about civil liberties in no uncertain terms.
Here are a few nuggets from the ruling:
- The ruling cites court cases from various countries including Lawrence v. Texas which struck down sodomy laws in the United States.
- I did not know that the Indian Constitution (like the United States Constitution) does not have an explicit “Right to Privacy.” On the issue of privacy there are mentions of Roe v. Wade, and Planned Parenthood v. Casey.
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The Court went above and beyond what it was called to do. In a single stroke, it accorded protection against discrimination on the basis of “sexual orientation.” I found this really surprising.
We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.
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The Court clearly understands that a Government or a Constitution cannot grant fundamental rights to people. Sweet :)
In the present case, the two constitutional rights relied upon i.e. ‘right to personal liberty’ and ‘right to equality’ are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not ‘confer’ fundamental human rights. It confirms their existence and accords them protection.
Kudos and thanks to Chief Justice Ajit Prakash Shah and Justice S. Muralidhar.
