My thoughts on the ruling against Sec. 377

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.
  • 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.

  • 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.

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11 responses to this post.

  1. Posted by Subhasish Das on July 2, 2009 at 3:53 am

    Noticed two more issues the court deals with, that in my opinion are rather significant:
    1. Reinforces, time and again, that public morality cannot supersede constitutional morality, specially in the context of the protection of minority rights. This can be used to defend some of the PIL challenges I think will come up soon from the religious right.
    2. Basically puts the ASG, representing GoI, in place by clearly saying why it is within the courts right to declare a law invalid if that law if it’s violating fundamental rights. Moreover it’s views on severing only those provisions of a law that are invalid and yet keeping the rest of it intact will allow a lot of flexibility, once this gets cleared by SC, after the obvious challenge by GoI. No need for a rewrite of 377 if the parliament chooses to remain bigoted.
    Overall a very god judgement that, as you said, goes above and beyond what was asked of the court. I like how it reconciles with Ambedkar’s and neheru’s visions of our constitution.

    Reply

  2. Thank you for your comment.

    For once, we don’t have to be arguing for constitutional values to people who don’t agree (for instance, this forum http://in.messages.yahoo.com/Top_Stories/Controversies/threadview?m=te&bn=hom-s&tid=1&mid=1&frt=2#1) We can be content with the freedoms we have, and watch the losing side shout.

    Reply

  3. Posted by By a human on July 2, 2009 at 6:32 am

    I’m forever hiding in secrecy
    the feelings lurking inside of my head.
    For if they knew, no-one would let me be
    the person I want to be. If I said
    that they would accept me, I’d be lying.
    They cannot see how I do what I do.
    So they shout abuse and leave me crying
    myself to sleep. But in dreams I go to
    a place where I’m free to be as I please,
    and where all the things I want, I have got.
    And where my acceptance comes with an ease
    that’s only possible in dreams. I’m not
    fighting for justice or equality.
    I’m just fighting for the right to be me.

    Reply

  4. Culture changes with time . No one can stop a culture from changing.It evolves and strengthens with time. Homosexuality is not against any culture. It is our short comings ,selfishness and hypocrisy because of which we dont look beyond our own needs and orientation. Science has proved that homosexuality is not a preference but an orientation. Homosexuality exists in animals too. Who decides what’s natural and unnatural? When what we do has been named as natural by us , we do not have any right to call what others do different as unnatural. Homosexuality is as old as the existance of man. No one can suppress the truth. It can only be delayed by resistance and non-acceptance. We need to look around and help others to be their true selves. In India most homosexuals live a dual life. They marry and have kids and live a life of lie till they die. We have such people in our family and our neighborhood. We should look beyond ourselves and help others lead a life of truth. Be a human in the true sense of the word.

    Reply

  5. […] mssnlayam says the entire judgment is awesome! He has also posted a link to the ruling and a few ‘nuggets’ from it: 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. Linked by kuffir. Join Blogbharti facebook group. […]

    Reply

  6. All this seems to be a conspiracy of the West. For centuries , the West has tried to adulterate and malign the rich Indian values and customs. During the British rule , they abolished The Sati and Child marriages and also introduced education of women in India. This was the start of the ugly westernisation of Indian culture. Why dont they leave us on our own!
    I am completely against any western influence on my religion and culture.
    When my only son told me that he was gay,I got him married off against his will. I thought that this will bring him back to the path of religion . I also ensured that the girl he gets married to be cultured and less educated so that she does not leave him in his difficult times. But he could not live up to the expectations of a married life. Last year he committed suicide by throwing himself in front of a running train. I believe that his untimely death was a result of the sin he had committed of being gay.
    My wife could not bear the shock of her son’s death and she died last month after suffering a massive heart attack.
    I had a happy family but my son ruined my home with his sinful act of being gay.
    I completely condemn what the West is trying do by ruining our culture and values.
    I am against decriminalizing of the section 377. Due to this more gays will be able to voice their opinion and live the way they are born against the norms of our culture and society,leading a sinful life and burning in hell.

    Reply

  7. Posted by Mogra S on July 7, 2009 at 8:59 am

    I agree with what you have written, sec 377 should be repealed, why even kamasutra the hindu sex bible has homosexuality in it…
    in fact just came across a tee that supports this repealing.. you might wanna see it
    http://www.inkfruit.com/winning_blowout.php?designid=7450&ProductId=251

    Reply

  8. Posted by Nandita Padmanabhan on July 16, 2009 at 5:30 pm

    Very articulate and well presented thoughts! Though I don’t really have a strong opinion on this subject matter, I really do appreciate your writing skills!

    Reply

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