I was touched this morning as reports fed through that the High Court in Delhi has held that homosexual intercourse between consenting adults is not a criminal act. The Court found that a 148-year-old colonial law which describes LGBT relationships as an "unnatural offence" was discriminatory and a "violation of fundamental rights".
I was moved to read much of the Chief Justice's judgement, to garner a better sense of the legal basis of this 'fundamental right'. Turns out that the petitioner, the Naz Foundation (an NGO working in the field of HIV/AIDS Intervention and prevention) got up on a spectacularly progressive constitutional argument that Section 377 of the relevant Indian penal code "based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only" renders "Any non-procreative sexual activity thus viewed as being "against the order of nature"" and as such "the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society".
The Chief Justice delivered a politically philosophical judgement in favour of the Naz Foundation. He quoted some eloquent Indian precedent establishing the importance of a review function in the separation of democratic powers:
"The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights. After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J. "... The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.""
It was from this plateau that the constitutional argument proceeded, and as is always the case with these leading decisions, a gorgeous archaeology of the political ideals of a nation's founders is offered to substantiate the judgement. In his closing judgement, the Chief Justice appealed to foundational statements made by Jawaharlal Nehru about the need to avoid a positivist interpretation of the Indian Constitution:
"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]."
He then went on to deliver a powerful endorsement of LGBT human rights by by grounding them as part of the fundamental inclusiveness of socio-cultural participation enshrined in the Indian constitution:
"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.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".
I don't think this will be the last we'll hear of this judgement as it moves around judicial review, but it nonetheless sends a clear message that LGBT rights are best conceived as constitutionally founded in a nation which will need to take a lead in social justice as it continues to become more globally prominent and economically prosperous.
