India’s landmark ruling on gay sex has ties to US civil rights

India’s landmark ruling on gay sex has ties to US civil rights
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As Americans are riveted by a judicial nomination to the Supreme Court and the role of the court in the culture wars, 8,500 miles away in India a quiet revolution is taking place and the Supreme Court is at the heart of it. India's top judges are using constitutional adjudication to drive social change in a deeply conservative country. Given the polarizing divisions in America, the Indian process of social evolution via technocratic means offers comparative lessons.

Unlike in the United States, judges are not appointed by the executive branch, and the legislative branch has no role in their vetting or confirmation. Instead, the judges appoint themselves — a collegium of the senior-most judges of the Supreme Court selects and sends the nomination to the government, which has little choice but to nod yes. The process is opaque and bedeviled by accusations of nepotism in recent years; judicial talent is found to be concentrated in a small number of families in a land of 1.2 billion people.

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Despite these criticisms, the Indian Supreme Court enjoys widespread support and issued a landmark judgment on Sept. 6 decriminalizing homosexuality. The five-judge Constitution Bench ruled that Section 377 of the Indian Penal Code, the first codified transplant of criminal law in the British Empire, was unconstitutional. Section 377 criminalized “carnal inter­course against the order of nature with any man, woman or animal” and imposed a punishment of up to 10 years imprisonment.

In the case of Navtej Singh Johar v. Union of India, the court held that consensual sexual relations between adults were not criminal; the prohibition was held to violate an array of rights including equality, life, liberty, dignity, expression, autonomy, identity and privacy.  

The court’s decision rests primarily on two prior activist judgments — these cases do the hard work. The first is National Legal Services Authority vs Union of India (NALSA), in which the court recognized transgender persons as the “third gender” in 2014. It held that “no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”

Crucially, the court referred to numerous precedents from foreign jurisdictions — including the United States — and incorporated international law: “If the Indian law is not in conflict with the international covenants, particularly pertaining to human rights, to which India is a party, the domestic court can apply those principles in the Indian conditions.” This is markedly different to the American hostility to foreign judgments — some states even have sought to introduce legislation to ban judges from consulting foreign sources.

The second judgment is Puttaswamy v. Union of India, issued in 2017, in which the court recognized a fundamental right to privacy.

In the latest case of Navtej, the court unanimously concluded that the fundamental rights of gay Indians deserved protection from the state. The judges issued four opinions; as the chief justice wrote, the Constitution “is a living and organic document capable of expansion with the changing needs and demands of the society. The courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance and they must robe themselves with the armory of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society.”

This progressive approach puts the court at the forefront of social change when Parliament has clearly indicated an intention to not legislate. Justice Chandrachud, whose opinion was most noteworthy, confronts this problem by quoting Martin Luther King Jr. (who quoted Theodore Parker): “The arc of the moral universe is long, but it bends towards justice.”

The justice rejects the idea that gays must wait for society to evolve, quoting from Dr King’s “Letter from a Birmingham Jail”: “We have waited for more than three hundred and forty years for our God-given and constitutional rights . . . when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of ‘nobodyness’ — then you will understand why we find it difficult to wait.”

The justice proclaims that the court cannot absolve itself of responsibility to protect minorities from state oppression, and calls on constitutional morality to triumph over social morality. He writes, “The overwhelming weight of international opinion and the dramatic increase in the pace of recognition of fundamental rights for same-sex couples reflects a growing consensus towards sexual orientation equality.”

While the intention is admirable, Justice Chandrachud is silent about the fact that social change in America was not achieved primarily through the courts. King had to mobilize society, and it took the civil rights movement to drive legislation and achieve change. Even before that, slavery was not ended by the judicial branch but by Americans engaging in a war of bullets and ideas. And the present-day battles about transgender bathrooms, same-sex marriage, abortion and more are being waged through the voting booth and legislation.

In contrast, the transgender and gay community in India has not mobilized the country to its cause, aside from a few activists, and there is no democratic debate. The government specifically declined to articulate a position, instead leaving the decision to the “wisdom of the court.” The lack of public awareness and sympathy for the rights of minority groups is tragic.

The court is seeking to redress it and drive necessary social change through its activist judgments. The problem is that judicially-driven change goes only so far. The court proclaims new rights and entitlements, but they remain on paper. The executive branch ignores these judgments; for example, the position of transgenders has not changed much since NALSA.

Similarly, the Navtej case can be only a first step. The real source of power in the hands of corrupt policemen to blackmail and extort sexual minorities is owed to social stigma and ostracism by family, employers and social networks. Unless social change comes through public education, awareness and persuasion, judicial proclamations will not achieve much: gays will remain vulnerable at the hands of law enforcement.

Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.