Research work of several law universities, international judgements and psychological institutes came in handy to the Supreme Court in delivering the historic verdict that decriminalised consensual gay sex.
Research work of several law universities, international judgements and psychological institutes came in handy to the Supreme Court in delivering the historic verdict that decriminalised consensual gay sex. Some of the universities whose research papers found mention in the apex court’s verdict include National University of Juridical Sciences (NUJS) and O P Jindal Global University (JGU). While striking down part of a British-era law that criminalised consensual gay sex earlier this month, the five-judge constitution bench, headed by Chief Justice Dipak Misra, took note of various international judgements, quoting from similar verdicts passed by the constitutional courts of the United States, Canada, South Africa, Republic of Philippines and European court of Human Rights.
CJI Misra noted that the Supreme Court of the United States in Obergefell v Hodges, Director, Ohio Department of Health had highlighted the plight of homosexuals and held that the Constitution allows homosexual persons the right to make this choice. The homosexuality verdict, written by CJI, also referred to a 2008 study by the American Psychological Association which had stated that research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. “Sexual orientation refers to an enduring pattern of emotional, romantic and/or sexual attractions to men, women or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviours, and membership in a community of others who share those attractions,” said the study, ‘Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality’. The research work of four faculty members of JGU’s Jindal Global Law School (JGLS), have also been cited by the apex court in its judgement.
Citing a report of Zaid Al Baset, ‘Section 377 and the Myth of Heterosexuality’, published in Jindal Global Law Review, the bench said that “the ‘naturalness’ and omnipresence of heterosexuality is manufactured by an elimination of historical specificities about the organisation, regulation and deployment of sexuality across time and space”. Citing from another report by JGLS professor Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique'”, published in NUJS Law Review, the bench said it is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are “vulnerable in public spaces on account of their sexuality and appearance”.
Applauding the apex court’s decision, JGU Vice Chancellor C Raj Kumar said the fact that the apex court has cited research work of the faculty members is a testament to the institutional commitment and research contribution of JGLS and JGU. “It is a matter of great honour and pride. I would like to congratulate all the faculty members of JGLS for their contribution to legal scholarship and jurisprudence. This is a reflection of the intensive and rigourous research we promote at the university,” he said. The Court also drew on a report co-written by another JGLS professor Danish Sheikh in his capacity as a consultant at the International Commission of Jurists, to understand how LGBT persons are deprived access to justice.
“This judgment is infused with the promise of transformative potential. It is now up to us as activists, lawyers, academics and members of civil society to ensure that the letter of the law seeps into the daily fabric of our lives,” Sheikh said. The apex court’s judgement cited another international publication by Ryan Goodman, ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics’, published in the California Law Review, and said that the public is sensitive to the visibility of lesbians and gays and private individuals also perform roles of policing.
“The state’s relationship to lesbian and gay individuals under a regime of sodomy laws constructs a similar, yet dispersed, structure of observation and surveillance. The public is sensitive to the visibility of lesbians and gays as socially and legally constructed miscreants. “Admittedly certain individuals, namely those who are certified with various levels of state authority, are more directly linked to the extension of law’s power. “Yet the social effects of sodomy laws are not tied to these specialized agents alone. On the ground level, private individuals also perform roles of policing and controlling lesbian and gay lives in a mimetic relation to the modes of justice itself,” the bench quoted from the study.
The judgement of Justices R F Nariman and Indu Malhotra quoted from the statement of the Indian Psychiatric Society, in line with the American Psychiatric Association, that homosexuality is not a psychiatric disorder. “There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person,” Justice Malhotra quoted from the statement in her judgment.
Justice D Y Chandrachud, who was part of the constitution bench, took note of the adverse impact of sodomy laws on the lives of homosexual adults considered by the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality vs Minister of Justice, saying it violated their right to equality.