This going to be a very busy day for me and there are plenty of things I want to write about later, such as the fallout and backlash to the New York Times op-ed about the palace coup against Donald Trump in the White House and the hearings on the nomination of Brett Kavanaugh to the US Supreme Court. But I want to first flag a really important news item and that is that the Supreme Court of India has, in a unanimous ruling, decriminalized homosexual acts, thus nullifying anti-gay laws that were in section 377 of the penal code, a relic from the days of British colonialism.
A five-judge bench of the country’s highest court ruled on Thursday that a 160-year old law banning sex “against the order of nature” amounted to discrimination on the basis of sexual orientation and was unconstitutional.
“Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” said the chief justice, Dipak Misra, in his ruling, part of a series of judgments that quoted from Oscar Wilde (“The love that dare not speak its name”), Leonard Cohen (“From the ashes of the gay / democracy is coming”), William Shakespeare (“What’s in a name? That which we call a rose by any other name would smell as sweet”), and the German philosopher Johann Wolfgang von Goethe (“I am what I am, so take me as I am”).
“Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today,” Misra said, “and it is only when each and every individual is liberated from the shackles of such bondage … that we can call ourselves a truly free society.”
“History owes an apology to members of the community for the delay in ensuring their rights,” stated another judge on the bench, Indu Malhotra.
This is huge. India is the second most populous nation in the world with about 1.3 billion people and so the number of people suddenly released from the fear of prosecution as criminals just for being gay is massive. If the percentage of LGBT people in India is 5% (I don’t think anyone knows the exact figure), that would mean 65 million people freed from the threat of punishment.
Although India is a diverse nation, it is also one with a strong puritanical attitude towards sex and the current government has a strong Hindu nationalist strain. The country has seen vigilante acts by Hindu mobs against people who are seen as violating religious and cultural taboos. So we should not expect that things will change overnight for the LGBT community but this is an excellent start.
Sri Lanka, being a former British colony too, also has similar abominable legal prohibitions against homosexuality, but as far as I am aware the laws are never enforced and it is often an open secret about who is gay. But I hope this move by India will produce a similar result in Sri Lanka.
Very good news.
Mano,
Is there a distinction here between “decriminalized” and “legalized?”
Jeff
Jeff @2,
There is a technical difference between the two terms but in this particular case, I think that the two terms are equivalent.
It is a remarkable day for the Indian LGBT community. Most of us expected it to be legalised but also were a bit apprehensive. But the statements in the verdict especially those acknowledging the importance of diverse sexual orientations and their role in shaping our experience as well as the apology was completely unexpected and especially emotional for many of us!
thanks much for this, Mano.
Here’s some Times of India coverage as well, which gives much more historical perspective of the case than the Guardian coverage. There are also a couple videos linked there. I’ve only seen one so far.
Most importantly, here is the SCI decision itself. I only know a tiny, tiny bit about the SCI, but I’m reading the decision today and will attempt to find sources on exactly how much this decision does and does not follow in the traditions of SCI constitutional scholarship. So far I can say that at first glance, from a non-expert this appears to be spending quite a great deal of time in its introduction on issues that are technically social arguments, not legal ones. From someone who has studied constitutional decision making in the United States and Canada, I can tell you that this is decidedly unusual in both those nations but decidedly common in certain situations with decisions about the de/criminalization of queer sex and the un/equal protection of law afforded to queer persons being prominent among those Canadian and US decisions that do include social argument. My guess that this is unusual for India, then, is based on the fact that constitutional jurisprudence in other nations rarely operates in the manner of the SCI in Singh Johar v Union of India (THR Secretary, Ministry of Law & Justice), but does do so in cases similar to this one. This experience with other supreme courts of common law tradition tells us that we should not assume the approach taken here to be typical of SCI decision making. And indeed, Kumar v Union of India, decided the same day as Singh Johar, skips any such section and begins with a single-sentence paragraph on procedural posture before moving directly into articulating material facts.
I hope to have much more soon, but for now I must say that the legal effect as well as the structure and wording of the decision itself are quite interesting.
@hyphenman:
Mano has already correctly answered your question: yes there is a distinction. However, Mano’s link does a bad job of describing what the difference actually is.
In short, lots and lots of things are illegal without being a criminal offense. Criminal offenses are decided in criminal courts and have at least the theoretical possibility of jail time attached.
On the other hand, operating a business without a license is illegal, but your legal penalty does not include even the remote possibility of jail time and determination of punishment is not determined in a criminal court and the government does not have to prove your violation beyond a reasonable doubt.
Moreover, accidentally crashing into someone else’s car is not in any way criminal. However, it’s illegal in the sense that it violates tort law. The remedy for that isn’t even a government action: the owner of the other car takes you to civil court and asks you to pay damages. Violating a judge’s order can also be illegal, but is rarely criminal. For instance if during the process of a divorce the judge orders you not to sell the family home because although proceeds from the sale could still be divided equitably, if one of you wanted to continue living in the home the court wants to preserve that option. Should you go ahead and sell the home anyway, the sale was illegal, but there was no crime. The remedy is going to be included in the judgement of divorce.
In short, anything that breaks any law or lawful command is “illegal”, but only certain laws are criminal laws, and only breaking those laws amount to a crime.
So making something “legal” -- in the earlier language “legalizing” something -- means removing all barriers of law or lawful command. “Decriminalizing” means removing all penalties otherwise authorized by criminal law.
In this reporting, “decriminalizing” is the appropriate language because that’s the subject addressed by the court, whether or not queer sex can be criminalized by the state. Most reporters (including yours truly) don’t have the knowledge of law to be confident that there are no other laws that constrain queer sex (or sex in general) in India. To assert that queer sex was legalized would be to assert that that there are no (still in force) references to queer sex in administrative law or the law of business organizations or the law of trusts, etc. etc. We know about criminal law because it was just specifically called out by the SCI, and the SCI determined the state of the law. Without a similar statement about other areas of law, it would simply be overconfident to assert that all barriers of law have been removed.
It’s probably the case that queer sex is now legal, not just decriminalized, in as many or nearly as many circumstances as heterosex. But we can’t know for sure. We do know “decriminalized” for sure. So people with the knowledge of the distinction will use the word in which they have more confidence.