How the SC judgement on Section 377 ties constitutional values with emotion

Supreme Court's decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people.

What does it mean to love in law? On Thursday 6th September, my social media feeds lit up with heart emojis, #lovewins hashtags, and status updates expressing love in response to the Supreme Court of India’s unanimous decision to decriminalise gay sex. There was a collective sigh of relief as the court lifted the weight of criminality from those who lived in the shadow of India’s law criminalising homosexuality, specifically section 377 of the Indian Penal Code 1860 – a vestige of British colonialism.

Section 377 criminalises “carnal intercourse against the order of nature”. Broadly drafted, the law codifies Victorian morality to criminalise a range of consensual and non-consensual (“unnatural”) sexual behaviours, including homosexuality, bestiality, paedophilia, and rape. While very few people were prosecuted for same-sex sexual activity under the criminal law, it left sexual minorities vulnerable to extortion, harassment, and abuse. Thursday’s decision means that gay sex is now excluded from its reach.

In 2001, the Naz Foundation, an organisation working to end HIV/AIDS, petitioned the courts to “read down” the law to exclude consensual sexual activity between adults. The Delhi High Court agreed and held that criminalising gay sex violated rights to equality (Article 14) and privacy/liberty (Article 21) guaranteed by the Indian Constitution. However, the Supreme Court overruled this decision in 2013, holding that only parliament could change the law.

ALSO READ: Section 377 read down: When lovers of liberty rose to the occasion

This protracted litigation history culminated last Thursday when a newly constituted bench of the Indian Supreme Court repudiated their previous decision and decriminalised gay sex. And it did so with an endearing emotional depth.

Loving jurisprudence

Spanning almost 500 pages, the court’s jurisprudence is a valentine to India’s LGBT community. The court’s four judgments (from five justices) tie expansive constitutional values of inclusion, democracy, and dignity to emotional claims about compassion, respect, empathy, hope, and love.

Chief Justice Dipak Misra observed that punitive laws eroded the “right to choose without fear” a partner and realise “a basic right to companionship”. Citing one of the court’s prior decisions about privacy, he noted: …Read More

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