377 steps

The Delhi high court was for just a few moments on Thursday awash with tearful celebrations. Liberty is an incremental accomplishment and a grand step has just been taken,the gathered masses within and outside the court premises appeared to agree,as a two-judge bench of the court struck down a remnant of the 19th-century social code still on India’s statute books. Chief Justice A.P. Shah and Justice S. Murlidhar brought to an end years of contentious argument in the court by declaring discrimination on the basis of sexual preference an “antithesis of the right to equality”. They held that those parts of Section 377 of the Indian Penal Code that criminalised consensual gay sex between adults were violative of fundamental rights.

By placing their judgment on the pivot of constitutionally guaranteed fundamental rights,the judges have righted the debate on Section 377 to its legal core. Can a modern democracy intrude upon the private domain of consenting adults on the grounds of “moral indignation”? By framing it this way,the judges have cased their judgment in the very constitutional framework from which every Indian derives individual freedoms. In their words: “In the present case,two Constitutional rights — right to personal liberty and right to equality — relied upon are fundamental human rights which belong to individuals simply by virtue of their humanity,independent of any utilitarian consideration.” There is a need to linger longer on the wording of the judgment because the possibilities of appeal are already being articulated. In any case,the territorial implications of the judgment — that is,whether it applies outside of the Delhi high court’s jurisdiction — are automatically raised,and so the exact status of the read-down parts of Section 377 in different parts of India will have to be determined.

This is why the court’s asides to the Central government are crucial. They cited the additional solicitor general’s submission that the courts refrain from encroaching on Parliament’s domain,and said that the judiciary is constituted as the “ultimate interpreter” of the Constitution. The judgment of the Delhi high court may not be the last word on the matter. But the government,whose ministers just last week retracted statements seen to be proactive on a re-look at Section 377,must read it for its enlightened constitutionalism.