Reforming Macaulay

The Asian Age
Delhi, Mumbai, Kolkata, London
Monday, 6 July 2009

Link to original story.

By Kajal Bhardwaj

“Madam, card dikhaye…”  (“Madam, let me see your id..”) This was the fourth time I was stopped for “checking” on my way into the Delhi high court the morning of July 2. Not that one can blame the security personnel. There was a media circus outside the court compound. Satellite-topped OB vans took up the better part of Sher Shah Road and reporters with cameras and microphones in hand were starting to flood the footpath.

Clearly they too had got the previous night’s exciting news — the judgment on Indian Penal Code’s (IPC) Section 377 was to be delivered.

It is a case that, like so many others, my colleagues and I have followed with great interest. The 377 case, filed way back in 2001, was about gay rights, yes, but also about the broader notions of equality, dignity, “minority” rights and of womens’ rights in challenging legal and social norms that impose a single understanding of sexuality. So July 2 was indeed judgment day.

I sighed and showed my Bar Council card yet again and pushed the door into Court No.1. It was 10.30 am and the room was packed. Gay rights activists, lawyers, several petitioners of the case, reporters and spectators packed the room waiting for the judgment that could change many lives. As judgments in other cases were read out, the rising nervousness was palpable.

The group looked up expectedly as the Bench that had heard the case — Chief Justice A.P. Shah and Justice S. Muralidhar — walked in. In keeping with court tradition, the room rose and bowed to the judges in respect and sat down, this time on the edge of their seats. The judges, perhaps keenly aware of the path-breaking judgment they were about to deliver, kept a studiously straight face.

Chief Justice Shah looked out at the packed courtroom and said, almost grimly, that he would read out the conclusion. The front row comprising the lawyers for both sides — Naz Foundation, Voices Against 377, the Government of India, Joint Action Committee, Kunnur (Jack) and B.P. Singhal, the Bharatiya Janata Party’s former Rajya Sabha MP,stood at attention to hear the verdict. Three sentences into the Chief Justice’s reading and, like a wave sweeping a football stadium, one row after the other rose in attention —holding hands, straining to catch every word.

It was expected. Yet when these words were read out, “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”, an audible gasp went around the room. By the time the Chief Justice had finished reading the conclusion of the judgment,people were openly weeping and there were handshakes and hugs all around.

Watching the spectators collapse on each other, overcome by emotion, the guards charged with maintaining decorum in the court room quickly ushered the group out. Out of the court room and down three floors, most walked in a daze, looking around at their friends and colleagues wondering if they had actually heard what they had been waiting to hear for so long. Other lawyers in the Delhi high court gaped at the big troop descending the stairs, one wondering out aloud with unintentional accuracy, “Kahan se release hoke aayen hain ye sab? (Where have all these people been released from?)”

There was little time for the news to really sink in, to truly appreciate the enormity of the moment. As they all stepped out into a beautiful Delhi day, the activists and lawyers were mobbed by the television media asking their favourite and most inane question — “How do you feel?” As one activist put it later in the day, “How can you explain what freedom feels like?”

One-hundred-and-five pages long, the judgment was almost immediately available on the Delhi high court website. The conclusion, having been read out in court, was being quoted in all the news reports. But as a lawyer I couldn’t wait to read the “meat” of the judgment — the reasoning, the leap in our understanding of the law and the Indian Constitution, of the rights of privacy, equality, dignity that the judgment no doubt held.

The judges had a difficult job with this case. Not only were they being asked to determine if the gay community enjoyed the rights of privacy, liberty, health, equality and whether Section 377 in its disproportionate impact on the gay community violated these constitutional principles, they were also confronted with a provision that they could not repeal completely. Something even the petitions did not ask for.

Section 377 is a colonial relic. A provision of the IPC authored by Lord Macaulay, it reflected the most conservative in Victorian values by prohibiting all sexual acts, consensual or not, that did not lead to procreation and punishing “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. This included consensual oral and anal sex, making straight people criminals under this law as much as gay people but the force of the law weighed squarely against the latter. What complicates matters is the emphasis in the IPC on male to female penile-vaginal rape as the primary form of sexual assault; so other forms of non-consensual sexual acts including child sexual abuse against boys that are not covered by a specific provision in the IPC are covered by Section 377.

The judgment grapples with these diverse and complex issues with finesse and inspirational legal acumen. It is first and foremost an equality judgment articulating in unambiguous terms the impact of criminalisation and discrimination — from the inability to access government HIV programmes to extreme harassment and violence. It recognises that discrimination based on sexual orientation is prohibited by the Indian Constitution. It asserts a “constitutional morality” rather than a popular morality as the basis for law and government policy. And on all these counts, the judgment finds that Section 377 fails, insofar as it applies to adult, consensual, private sex.

As requested by the organisations that filed the case, Section 377 continues to be in force for cases of non-consensual sex and sexual abuse of children. In doing so it still requires the attention of Parliament to reform this centuries-old law which, with its limited understanding of sexual violence, denies many full protection of the law.

The 377 judgment has given voice to the ultimate vision of India — a society based on inclusiveness. To quote from the judgment, “Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination”. Captured in this one statement is the idea of a country that accords dignity and equal rights to all — regardless of religion, race, caste, sex, place of birth and, now, sexual orientation; indeed of any status or identity that becomes a basis for exclusion or ostracisation. It is a call, finally, for an anti-discrimination law that will ensure that government and private actors alike are bound by constitutional morality.

And it is, ultimately, a judgment that has served as a great reminder of why, sometimes, we do in fact, love the law.

Kajal Bhardwaj is a Delhi-based lawyer. She works on issues related to HIV, health and human rights.