In 2013, the Supreme Court of India upheld Section 377 of the Indian Penal Code that criminalised homosexuality, arguing that since only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” it was therefore “legally unsustainable” to repeal the act.
The right to sexuality is now widely recognised as a human right. For the Supreme Court to hold that such a right was to be denied to Indian citizens on the grounds that people who are lesbian, gay, bisexual or transgenders are a minority was sharply criticised at the time. On Thursday, however, the court made amends and, in a landmark judgment, decriminalised homosexuality.
In its order, the court made sure to rectify the faulty reasoning making rights contingent upon number, calling it “perverse” and “violative of the equality principle enshrined under Article 14 of the Constitution”. India’s founding fathers had “never intended that the protection of fundamental rights was only for the majority population”, the Supreme Court argued. The Constitution will “protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated”.
The order goes on to argue that India’s Constitution endeavours to “protect diversity in all its facets: in the beliefs, ideas and ways of living of her citizens” and “does not demand conformity”.
The 377 judgment carries great significance not only for the lesbian, gay, bisexual and transgender community – its endorsement of diversity could be a beacon of hope for the human rights of all Indians. The difference between the 2013 and 2018 judgments embodies the tension present in all Constitutional democracies: of the pushes and pulls between popular morality and individual rights. Democracies are, by definition, ruled by the majority. But there are moments when this could descend to mob rule, unfairly targeting weaker minorities. This is when a mature nation should be able to check majoritarian excess by activating rights that protect individuals even if they oppose the will of the majority.
In this, India is fortunate to have a Constitution that is remarkably progressive, allowing for a range of individual liberties to be protected from majoritarian excess. However, in many instances, India has failed to draw upon these protections and has let majoritarian tendencies overrule the spirit of the Constitution. For instance, during the 1975 Emergency, the Supreme Court upheld the suspension of fundamental rights. In the current moment, some food habits have been criminalised given that majoritarian religious mores hold beef to be taboo. Personal laws in India often disadvantage women, with popular will holding politicians back from amending them. Hopefully, Thursday’s Supreme Court judgment, which so strongly favours rights over popular morality, will be invoked frequently to protect the rights of all Indians, be they in the majority or in a minority.