Justice Misra held that sexual minorities should live without fear or shame when expressing their intimacies in public. The justices’ poetic flourishes clear the path for future courts to recognise LGBT (and possibly intersex) rights in areas like employment, education, and family. Justice Indu Malhotra added that LGBT people deserved an apology for the delay in redressing their suffering. In a concurring opinion, Justice Dhananjaya Yeshwant Chandrachud combined critical theory with legal analysis to hold that the Indian Constitution obliged the court to end the “anguish of closeted identities”. For him, decriminalising gay sex should be part of a broader public awareness campaign to “eliminate stigma” against LGBT people. Justice Rohinton Fali Nariman, meanwhile, explored the transnational/colonial legal histories relating to the criminalisation of homosexuality and concluded the law was “capricious and irrational”. Citing one of the court’s prior decisions about privacy, he noted: “The rights of the LGBT community inhere in the right to life, dwell in privacy and dignity and they constitute the essence of liberty and freedom.” In his view, the constitution is a way to nourish individuals – “the painting of humanity” – a document that could not only protect their affective and intimate capacities, but actually help cultivate them. 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.Ĭhief Justice Dipak Misra observed that punitive laws eroded the “right to choose without fear” a partner and realise “a basic right to companionship”. Spanning almost 500 pages, the court’s jurisprudence is a valentine to India’s LGBT community.
And it did so with an endearing emotional depth. 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. However, the Supreme Court overruled this decision in 2013, holding that only parliament could change the law.
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. 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. Thursday’s decision means that gay sex is now excluded from its reach. 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. 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. Section 377 criminalises “carnal intercourse against the order of nature”.
Gay bestiality code#
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.
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.