India’s Supreme Court Decision is a Victory for Global Equality

Soumen Nath, New Delhi, India: Delhi Queer Pride -2015

September 6, 2018 — The Supreme Court of India today issued a unanimous decision decriminalizing same-sex relationships across the country. The landmark case, which combines careful legal reasoning with inspiring philosophy and prose, stands to animate similar legal challenges to colonial-era sodomy laws in other former British colonies, including pending cases in Botswana, Jamaica and Kenya. After nearly two decades of local activism and legal struggle in India, the decision is a powerful affirmation of the democratic and constitutional rights of sexual minorities in India and beyond.

The carefully crafted judgment carries important moral authority, since article 377 of the Indian Penal Code was a colonial-era legal model that was eventually imposed on British colonies worldwide. As a result, the legal reasoning is reverberating across the British Commonwealth. Just as important, the decision’s political arguments, coming from the largest and most diverse democracy in the world, provide a guiding framework for democratic citizenship in any pluralistic society – and an important warning against the tribalism and nativism that are driving so much of the world’s politics today.

Five judges on India’s Supreme Court ruled that India’s “Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.” Indeed, the Court went on to find that “our ability to survive as a free society will depend on whether constitutional values prevail over the impulses of the time. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and the equal protection of law.”

Looking beyond its own constitution, the Supreme Court of India also analyzed comparative jurisprudence from courts around the world, including leading LGBT cases from the U.S. Supreme Court. One of the “guiding principles” that emerged from this exhaustive comparative review is that: “The right to love and to a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights.”

The breadth of the decriminalization decision is remarkable. Finding that “homosexuality is a natural variant of human sexuality,” the Court concluded that 377 violates the rights to life, liberty, privacy, equality, expression and health. But the Court was perhaps most eloquent in defending the rights to individual dignity and citizenship. With that voice, the India decision stands as an emotionally powerful legal argument that tracks U.S. Supreme Court jurisprudence, including the Obergefell decision in 2015 that found a Constitutional right to same-sex marriage in the United States.

In Obergefell, Justice Kennedy emphasized the fundamental human dignity of individuals and families seeking Constitutional protection before the Court, writing that “they ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The Supreme Court of India went a step further, noting that “history owes an apology to the members of this community and their families, . . . . LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”

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