There come moments in the life of a nation when it has to confront its deepest prejudices and fears in the mirror of its constitutional morality. The Delhi high court’s judgment in Naz Foundation vs Union of India, decriminalising private, adult, consensual homosexual acts, does just that. The judgment is a powerful example of judicial craftsmanship. It is, unusually amongst recent judgments that are constitutionally significant, clear and precise. It embodies the right combination of technical rigour in thinking about the law, with a persuasive vision of the deepest values those laws embody.

There will be an appropriate time for a detailed legal analysis of the judgment. Many will, doubtless, latch on to the judgment as offending something called our tradition or our values. But to interpret it this way would be a mistake. What the court says is this. Under our constitutional scheme, no person ought to be targeted or discriminated against for simply being who they are. If we give up this value, we give up everything all of us cherish: both our liberty and our right to be treated equally. This judgment is defending our values. Simply put, the judgment says that the state has no presumptive right to regulate private acts between consenting adults. It protects privacy. That is our value. The judgment says that individuals should not feel so stigmatised that they are unable to seek medical help. That is our value.

The judgment is first and foremost a defence of liberty, equality, privacy and a presumptive check on state power. It is a feature of these values that they are secure only when they are enjoyed by all. Privacy cannot be genuinely protected if the state is given arbitrary power over some groups; equality cannot be realised if invidious distinctions between citizens persist; rights of liberty cannot be genuine if they apply only to all those who are alike. The essence of toleration is that each one of us can be safe from the fear of stigma, discrimination, persecution, only when all of us are safe; otherwise what we get is a counterfeit toleration. So let it be clear: this judgment is not about a minority, not about valorising a lifestyle, it is about the values that made us who we are as a nation. Neither the detractors of this judgment, nor its defenders for that matter, should forget the fact that it is in the name of a genuine common morality that this decision can be defended.

... contd.