By Ajay Kumar
Today the Supreme Court decriminalised consensual sexual acts between individuals of the same sex by reading down Section 377 of the Indian Penal Code (IPC). The history of the case is a curious one; the Delhi High Court initially read down Section 377 in 2009 but the apex court reversed that decision in 2013 in Koushal case. Thise decision by a division bench of the Supreme Court was challenged by way of review before a five-judge constitutional bench, which delivered the verdict earlier today.
The verdict is one in a line of progressive judgements coming out from the Supreme Court in relation to gender and sexuality. In the NALSA case, the court recognised the rights of transgender persons to be treated equally under the law and also allowed for their integration into the mainstream legal system. The 2013 judgement was critiqued in the judgement in the Right to Privacy case by the top court itself. The harmonisation of this jurisprudence resulted in the judgement today, which corrected the jurisprudential wrong in the Koushal case.
The effects of this judgement are wide. The IPC is the model penal code for many Asian and African countries in the Commonwealth of Nations. As many of the constitutions of these countries are also moulded on the Indian constitution, the Supreme Court’s judgements carry much persuasive weight there. The effects of today’s judgement may no longer just be felt in India but would also be felt overseas as laws similar to Section 377 remain on the books in many countries. Today’s judgement may convince courts in those jurisdictions that it is no longer jurisprudentially sound to have such a provision on their books.
But the broader aspect of today’s judgement is the floodgate that will open towards other rights for LGBTQ persons. India’s constitution is very strong on its provisions with regard to the right to equality and non-discrimination. It is very well possible that today’s judgement will open the door to same sex marriage and adoption.
It is also a great day for individual rights, as the right to sexuality is an integral part of the right to life and the right to self determination. An individual must be permitted to live life in accordance with their wishes so long as they do not harm others. Consensual sexual acts between adults is not something that the State ought to regulate, which is why the fundamental rights protect people from such state action. The right to privacy has also taken a large step forward as the most intimate of actions are no longer a topic of state regulation.
The purpose of a constitution is not to protect society, but to protect individuals from society since society acts through the State. Constitutions exist so that the State may not trample on the individual. While there will be many in India who will say that society is not ready to have people from the LGBTQ community out in the open, it is the prerogative of the constitution to tell society otherwise. Today India’s top court exercised that constitutional prerogative and liberated millions of Indians who had to live in the closet for fear that their very act of existence was a crime.
Today is a great day for Indian democracy and India’s constitution.
Ajay Kumar is an advocate at the Bombay High Court.