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. He 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
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 non- discrimination. 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 anti-thesis 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….
Of course, this will not end discrimination against LGBT people or suddenly make life easier for them; we have a habit of passing laws and then doing nothing about implementing them, be it traffic, caste or dowry. But still, decriminalizing homosexuality and getting rid of an old colonial-era law is a big step in the right direction – towards ending harassment by cops, allowing more gay people to seek medical help for HIV/AIDS, and most importantly, towards a more genuine sense of the “inclusiveness” the judgment refers to, in families and the public sphere alike.
Not surprisingly, there is opposition from conservative groups. Hysteria about “Indian culture in danger” is no doubt about to reach shrill levels. The newsmedia is predictably playing to all kinds of stereotypes, but it is nevertheless heartening to see the vox pops from around the country that support the ruling.
Congratulations to the Naz Foundation and all the civil rights activists who have worked tirelessly for years to make this happen!
And, it is finally raining in Pune – sweet, sweet rain. Here’s hoping it will stick around for a good three more months!
EDIT: Mel points out below that this Delhi High Court judgment is currently applicable only within this particular court’s jurisdiction. The wider applicability of the judgment has generated much debate in today’s newspapers. This opinion piece suggests that a previous Supreme Court ruling will give legal teeth to the all-India applicability of the judgment.
Also, for a useful discussion of the ruling, see here, especially the comments.