Court cites constitutional principles as it decriminalises homosexuality

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New Delhi: Invoking Jawaharlal Nehru and the Constitution’s spirit of inclusiveness, Chief Justice AP Shah and Justice S Muralidhar held that Section 377 of the Indian Penal Code, “insofar [as] it criminalises consensual sexual acts of adults in private,” violated the principles of equality and non-discrimination contained in articles 14, 15 and 21 of the Indian Constitution.

Article 14 guarantees all people “equality before the law;” Article 15 prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21 guarantees “protection of life and personal liberty.”

Observing that “discrimination is antithesis of equality,” the court relied extensively on previous case law to hold that section 377 “discriminates [against] a section of people solely on the ground of their sexual orientation, which is analogous to [the] prohibited ground of sex.”

“A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15,” the court held.

In 1946, Nehru gave a famous speech to the Constituent Assembly on the values the soon-to-be-drafted Constitution must exemplify. The judgment relies on Nehru’s call for “inclusiveness and understanding;” for a society in which “those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.” The court also pointed out that “inclusiveness,” the “underlying theme” of the Indian Constitution, is based on traditional Indian values of “a role in society for everyone.”

The verdict marks the end of a colonial legacy. Section 377, drafted in 1860 in British-ruled India, reflected the social mores of Victorian England. Britain herself has long since decriminalised homosexuality. The current UPA government had initially moved to repeal Section 377, but later backtracked “to hold discussions with all sections of society,” including religious leaders.