In legalizing gay sex, India’s Supreme Court redeems itself

The Supreme Court of India on Thursday decriminalized gay sex. In doing so, it overturned its own 2013 judgment in which it had held gay sex to be a criminal offense in keeping with an 1861 law. The apex court has now redeemed itself.

The law, Section 377 of the Indian Penal Code, had briefly been pared down to decriminalize gay sex, from 2009 to 2012. But in 2013, on the petition of Suresh Kumar Koushal, an astrologer, the Supreme Court said the law would be reinstated. However, the Supreme Court today said the view it took in 2013 was “impermissible.”

The 2013 judgment was delivered by a two-judge bench comprising the chief justice of India at the time, G S Singhvi, and another judge, S J Mukhopadhyay. The judgment had held that it wasn’t the Supreme Court’s job to rule on a law that depended on social mores. It was Parliament’s job.

The 2013 judgment said, “There is a presumption of constitutionality in favor of all laws, including pre-constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the constitution.” Therefore, the homosexuality clause of Section 377 was not found to not have any “constitutional infirmity.”

This was a shame coming from an otherwise activist Supreme Court often accused of overstepping the boundaries and doing the work of the legislature and the executive.

The Constitution of India holds the Supreme Court as the ultimate guarantor of the fundamental rights of citizens. Individuals and organizations seeking decriminalization of homosexuality had argued that Section 377 violated the fundamental rights to life, liberty, equality and freedom of speech and expression of LGBTQ+ persons.

It was, therefore, the Supreme Court’s duty and responsibility to defend the fundamental rights of queer people. Instead, the 2013 Koushal judgment referred to the community as “so-called LGBT persons,” almost trying to pretend they didn’t exist. Setting aside the earlier Delhi High Court judgment as “legally unsustainable,” Singhvi and Mukhopadhyay had dismissed the question of fundamental rights as irrelevant because a “minuscule fraction of the country’s population constitute LGBT.” Fewer than 200 people had been prosecuted under Section 377 over the years, the bench had remarked.

The fundamental rights of every single citizen are guaranteed by the constitution and it’s the Supreme Court’s job to uphold that, regardless of what the Parliament does or does not say.

The homophobia in the 2013 judgment was thinly disguised in poor legal arguments. The Supreme Court on Thursday overturned that judgment. The shift from 2013 to 2018 has been immense. In 2013, the case hearings were a lot about sex.

The judges were almost scandalized to hold a courtroom debate on “carnal intercourse” in 2013. “We never used to discuss this,”  Mukhopadhyay had said at one point in the Section 377 hearings, referring to sex. “Now we are openly discussing it in court.”

Talking about “non-missionary” sex, one lawyer said, “We have material from the Kama Sutra but you may not want us to submit that.” This was met with laughter in the court. Singhvi replied, “We don’t mind it.” This was met with more laughter. Mukhopadhaya explained: “When pathologists go for tests, they don’t mind what they are testing.”

Singhvi remarked in one hearing that homosexuality may or may not be abnormal. “We can’t say, only persons with experience could say so,” he said. This remark resulted in laughter in the court.

By 2018 the Supreme Court seems to have matured. This has happened partly thanks to the maturing of the legal challenge itself.

The case for gay rights moved from non-profit organizations to LGBTQ+ individuals themselves. It changed from public interest litigation to writ petition. A writ petition that says “my fundamental rights are being denied and violated” is the most powerful legal challenge that can be mounted through the Indian constitution. This change was brought about by lawyers such as Menaka Guruswamy who mobilized prominent queer persons to file the case.

This time the hearings were less about sexual intercourse and more about fundamental rights. The five-judge bench delivered four different judgments, all concurring with one another. “The primary objective of having a constitutional society is to transform the society progressively; constitutional provisions should not be interpreted in the literal sense,” the court observed.

The court has observed that sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression. Another change that happened was that the Supreme Court recently held privacy to be a fundamental right, thus giving a boost to the argument that consensual sex in private should not be a crime.

One judge, Justice D Y Chandrachud, went a step further in saying that this was just the first step – thus foreshadowing the beginning of a long legal struggle for gay marriage and associated issues. Chandrachud felt Thursday’s judgments were “about an aspiration to realize constitutional rights and equal existence of [the] LGBT community as other citizens.”

“Decriminalization is but the first step; the constitution envisages much more. LGBTs are victims of Victorian morality. Constitutional morality and not societal morality should be the driving force for deciding validity of Section 377,” Chandrachud observed.

The only woman on the bench, Justice Indu Malhotra, said history and society owed LGBT persons an apology for ostracism and discrimination. The Indian Supreme Court saying as much, five years after a poor judgment, is a big deal.

By legalizing gay sex, the Supreme Court has finally made a historic move for Indian society – but also for itself in its journey as a guarantor of constitutional rights.