Kafila, 2 July 2009
So – here we are folks, in a historic judgement this morning, Delhi High Court has read down Section 377 of the Indian Penal Code to exclude consensual sex among adults. Congratulations to the group of tireless activists who have helped to bring this about, and congratulations to all of us who count ourselves as part of the queer community.
So many difficult and lonely journeys have meandered to this point, so many kinds of love that had not “dared to speak its name”… and still such a long way to go…
But right now – CELEBRATE!
And do you know what Justice Muralidharan anchored his judgment to? Jawaharlal Nehru’s words moving the Objectives Resolution in 1946. Here is the concluding part of this amazing judgement:
“CONCLUSION 129. 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.
Nehru 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.”
130. 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. 131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. 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 antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms.”
Ah, the magic lurking in the dry legalese:
We declare that Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
You can download here (.pdf) the full text of the judgement – 105 pages long.