Reading the judgment it just gets better and better. This is more than just a
victory - its a seriously strong judgment that is not going to be easy to
challenge. It goes further than just making consensual gay sex legal. It
formally recognises sexual orientation in Indian legal terms, and opens the
door to case fighting harassment of people because of their sexual orientation.
All I can say is that this verdict was worth the wait!
Rex Wockner, as always, has done an an amazing job of reading the judgment and
highlighting the most important stuff. Pasting it below, but really, try and
read the whole thing.
Vikram
---------- Forwarded message ----------
From: Rex Wockner
Date: Thu, Jul 2, 2009 at 2:23 PM
Subject: Rex reads the whole damned Indian ruling so you don't have to
To:
And he opts to cut and paste these bits.
WARNING: YOU MAY CRY AT TIMES. LGBTs DID IN THE COURTROOM IN DELHI.
(If you have time, I urge you to read the whole ruling; it is stunning. I sent
it to you earlier.)
OK, my extracts:
The criminalisation of homosexuality condemns in perpetuity a sizable section
of society and forces them to live their lives in the shadow of harassment,
exploitation, humiliation, cruel and degrading treatment at the hands of the
law enforcement machinery. The Government of India estimates the MSM number at
around 25 lacs. The number of lesbians and transgenders is said to be several
lacs as well. This vast majority (borrowing the language of the South African
Constitutional Court) is denied "moral full citizenship". Section 377 IPC
grossly violates their right to privacy and liberty embodied in Article 21
insofar as it criminalises consensual sexual acts between adults in private.
These fundamental rights had their roots deep in the struggle for independence
and, as pointed out by Granville Austin in "The Indian Constitution -
Cornerstone of A Nation", "they were included in the Constitution in the hope
and expectation that one day the tree of true
liberty would bloom in India".
...
Section 377 IPC targets the homosexual community as a class and is motivated by
an animus towards this vulnerable class of people.
...
The criminalisation of private sexual relations between consenting adults
absent any evidence of serious harm deems the provision's objective both
arbitrary and unreasonable. The state interest "must be legitimate and
relevant" for the legislation to be non-arbitrary and must be proportionate
towards achieving the state interest. If the objective is irrational, unjust
and unfair, necessarily classification will have to be held as unreasonable.
The nature of the provision of Section 377 IPC and its purpose is to
criminalise private conduct of consenting adults which causes no harm to anyone
else. It has no other purpose than to criminalise conduct which fails to
conform with the moral or religious views of a section of society. The
discrimination severely affects the rights and interests of homosexuals and
deeply impairs their dignity.
...
Section 377 IPC has the effect of viewing all gay men as criminals. When
everything associated with homosexuality is treated as bent, queer, repugnant,
the whole gay and lesbian community is marked with deviance and perversity.
They are subject to extensive prejudice because what they are or what they are
perceived to be, not because of what they do. The result is that a significant
group of the population is, because of its sexual non-conformity, persecuted,
marginalised and turned in on itself.
...
The inevitable conclusion is that the discrimination caused to MSM and gay
community is unfair and unreasonable and, therefore, in breach of Article 14 of
the Constitution of India.
...
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.
...
The impugned provision in Section 377 IPC criminalises the acts of sexual
minorities particularly men who have sex with men and gay men. It
disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the
notion of human dignity which is considered to be the cornerstone of our
Constitution. Section 377 IPC in its application to sexual acts of consenting
adults in privacy discriminates a section of people solely on the ground of
their sexual orientation which is analogous to prohibited ground of sex. A
provision of law branding one section of people as criminal based wholly on the
State's moral disapproval of that class goes counter to the equality guaranteed
under Articles 14 and 15 under any standard of review.
...
(Rex note: Oh, look! California Attorney General Jerry Brown's argument...)
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.
...
CONCLUSION
129. The notion of equality in the Indian Constitution flows from the
'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946.
Nehru, in his speech, moving this Resolution wished that the House should
consider the Resolution not in a spirit of narrow legal wording, but rather
look at the spirit behind that Resolution. He said, 'Words are magic things
often enough, but even the magic of words sometimes cannot convey the magic of
the human spirit and of a Nation's passion........ (The Resolution) seeks very
feebly to tell the world of what we have thought or dreamt of so long, and what
we now hope to achieve in the near future.' [Constituent Assembly Debates: Lok
Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be underlying
theme of the Indian Constitution, it is that of 'inclusiveness'. This Court
believes that Indian Constitution reflects this value deeply ingrained in
Indian society, nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every aspect of life, is
manifest in recognising a role in society for everyone. Those perceived by the
majority as "deviants" or 'different' are not on that score excluded or
ostracised.
131. Where society can display inclusiveness and understanding, such persons
can be assured of a life of dignity and non- discrimination. This was the
'spirit behind the Resolution' of which Nehru spoke so passionately. In our
view, Indian Constitutional law does not permit the statutory criminal law to
be held captive by the popular misconceptions of who the LGBTs are. It cannot
be forgotten that discrimination is anti- thesis of equality and that it is the
recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual
acts of adults in private, is violative of Articles 21, 14 and 15 of the
Constitution. The provisions of Section 377 IPC will continue to govern
non-consensual penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of age and above. A person
below 18 would be presumed not to be able to consent to a sexual act. This
clarification will hold till, of course, Parliament chooses to amend the law to
effectuate the recommendation of the Law Commission of India in its 172nd
Report which we believe removes a great deal of confusion. Secondly, we clarify
that our judgment will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality. We allow the writ petition
in the above terms.
CHIEF JUSTICE and S.MURALIDHAR, J
JULY 2, 2009
