The landmark Delhi High Court verdict calling for revision of Section 377 IPC is not only a significant victory for the struggles of sexual minorities for their rights, it also enriches and broadens the understanding of equality, freedom and dignity in India.

The verdict has been greeted with a chorus of conservative voices condemnation in the name of defending ‘Indian culture’ and morality. The latter include political parties as diverse as the BJP, RJD and Samajwadi Party, as well as astrologers and religious leaders Some such forces have petitioned the Supreme Court against the Delhi HC verdict. The Supreme Court, while refusing to stay the Delhi HC verdict, has asked the Centre to file its response before forming its opinion. It appears that the Centre would like the ball to lie with the Courts rather than take a firm stance in favour of the verdict.

During the hearing in the Delhi HC on the writ petition filed by an NGO challenging the constitutional validity of Section 377, the Government of India spoke, awkwardly, in two voices. The Ministry of Home Affairs, which was against decriminalising homosexuality, took a position, as the verdict itself noted, “founded on the argument of public morality.” The other – that of the National Aids Control Organisation (NACO), under the Ministry of Health and Family Welfare, called for decriminalisation of homosexuality, on the grounds that criminalisation pushed gays, whom NACO brands as a HIV ‘High-Risk-Group’, underground, thereby impeding the control of AIDS. However, the responses of both Ministries had some things in common. Both evaded the question of the inalienable rights of gay people as human beings and Indian citizens and both took recourse to patriarchal notions of “traditional Indian moral values.”

The verdict held that Section 377 IPC is antithetical to the right to life, dignity and privacy affirmed by Article 21of the Constitution as well as the right to equality as guaranteed by Article 14. Noting that Article 15 prohibits discrimination on grounds of “religion, race, caste, sex, place of birth,” it held that “sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.” The manner in which the verdict is grounded in the Constitutional provisions for right to life, equality, opens up possibilities for forging broad based coalitions of different kinds of minoities and oppressed sections for justice, dignity and democracy.

Most significantly, the verdict’s stand that “popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights” has broader implications for the women’s movement. In this light, the verdict quotes Dr Ambedkar’s powerful words: “Constitutional morality is not a natural sentiment... We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”

Struggles against organized violence that targets inter-caste and inter-community couples and attacks women for refusal to conform to dress and morality codes will also take strength from the verdict’s argument that morality cannot be invoked to penalize consensual sexual relations or assault individual privacy.

The verdict on the whole avoids replicating the NACO’s obnoxious stigmatization of the gay community as an HIV/AIDS ‘High-Risk-Group,’ instead framing the issue in terms of the equal rights of gay people to the right to health, defined as “the right to control one's health and body” including sexual and reproductive freedom, as well as the right against discrimination in medical care.

Following the verdict many self-appointed custodians of morality like Baba Ramdev have declared that homosexuality is a ‘disease’ and can be cured. The verdict, dealing with same ‘disease’ argument voiced by the Additional Solicitor General, has commented that such notions reflect ignorance, and are “at odds with” the current medical and psychiatric understanding which is “almost unanimous” in its opinion that “homosexuality is not a disease or a disorder and is just another expression of human sexuality.”

The verdict in itself has not much to say about the more marginalised and vulnerable sections among the sexual minorities like the hijras, though these have been at the receiving end of the worst instances of social and custodial violence and discrimination. However, if Section 377 goes, it will open the avenues for such groups to demand greater protection and rights, and for issues of class to come into sharper focus within the struggle for rights for sexual minorities. The Left-led women’s movement in particular can play a very significant role in forging broader unity between the struggles of women, sexual minorities, the working class, oppressed castes and religious minorities.

The verdict retains Section 377 in so far as it applies to child rape and other kinds of rape not covered by the existing rape laws. It is time now to demand that the UPA Government amend the rape law, as long demanded by the women’s movement, to cover all the various kinds of rape, and scrap Section 377 entirely.

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Nepal Shows the Way

The Nepalese Supreme Court struck down the laws criminalising homosexuality in 2008. And in 2008 Nepal’s first openly homosexual representative, Sunil Babu Pant, was elected to the Constituent Assembly from the the CPN (United). The first Maoist government reportedly included in the budget a support programme for sexual minorities.