Observing that “discrimination is antithesis of equality,” the court relied extensively on previous case law to hold that Section 377 “discriminates (against) a section of people solely on the ground of their sexual orientation, which is analogous to (the) prohibited ground of sex.”

“A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15,” the court held. “Sexual orientation is a ground analogous to sex and that discrimination is not permitted by Article 15...Article 15 must be read expansively to include a prohibition of discrimination on the ground of sexual orientation as the prohibited ground of sex discrimination cannot be read as applying to gender simpliciter.”

The judgment quoted extensively from Nehru. In 1946, Nehru gave a speech to the Constituent Assembly on the values the soon-to-be-drafted Constitution must exemplify. The judgment relies on Nehru’s call for “inclusiveness and understanding;” for a society in which “those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.” The court also pointed out that “inclusiveness,” the “underlying theme” of the Indian Constitution, is based on traditional Indian values of “a role in society for everyone.”

Section 377 would, however, continue to apply to non-consensual non-adult sexual acts such as child abuse.

The verdict assumes significance as India is the only major liberal democracy to still have laws that criminalise gay sex. The verdict also marks the end of a colonial legacy. Section 377, drafted in 1860 in British-ruled India, reflected the social mores of Victorian England. Britain herself has long since decriminalised homosexuality. However, international advocacy group Human Rights Watch estimates that of the 80-odd countries with laws that still criminalise gay sex, “more than half those countries have these laws because they once were British colonies.”

... contd.