• H. Oberoi (law student)

Decriminalizing Gay Sex- Globalization & Indian Criminal Law: A Possible Connection? (a student

A recent judgment by the Supreme Court of India, read down section 377 of the Indian Penal Code, decriminalizing gay sex and establishing LGBT rights, starts with three quotes. The first one is from Goethe and reads: “ I am what I am, so take me as I am.”1 The other two are from Schopeanhauer and John Stuart Mill.2

While the judgment has been well received by the Indian public and widely discussed in the media3, it is intriguing to examine why the Indian judiciary would seek inspiration from a German man of letters, a German philosopher and an English political economist and philosopher. As one reads the four concurring judgments beyond the three opening quotes, one is stuck by how the justices partake in a wide-ranging and well-documented global conversation.

One can take a pulse of this global conversation by listing a brief inventory of the international case law cited in the judgment. Some of the key cases in support of the judgment, from courts around the world include the following (as cited): Obergefell et al v Hodges, Price Waterhouse v Hopkins (1989), Kimberly Hively v Ivy Tech Community College of Indiana (2016), Lawrence v Texas (2003), Delwin Vriend and Others v Her Majesty the Queen in Right of Alberta and Others (1998), The Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v The Minstry of Home Affairs (1999), Euan Sutherland v United Kingdom (2001), Ang Ladland LGBT Party v Commission of Elections (Supreme Court of the Republic of Philippines, 2010) and Jason Jones v. Attorney General of Trinidad and Tobago.

Having listed global case law, the five judges involved in the case also list the following treaties in support of the judgment: Universal Declaration of Human Rights, International Covenant of Civil and Political Rights, and European Convention of Human Rights. Outside case law and international treaties the justices interestingly also cite the writings of Shakespeare, Edmund Burke, Alexis de Tocqueville, Richard Posner, John Rawls, Martin Luther King Jr, Nelson Mandela and Leonard Cohen.

One additional global connection also ought to be noted here. In 2013 the organizing committee for the Tagore Lectures invited the distinguished Australian jurist and retired judge of the Australian High Court, Michael D. Kirby to visit India and deliver the annual lectures. Kirby choose to address his audience on the topic of “Sexual Orientation & Gender Identity –A New Province of Law for India.”4 One of the key themes addressed in the Kirby lectures was how to conceptually define what precisely constitutes LGBTIQ identity. These important definitions of Kirby, based on the lectures, are cited extensively, in the case under discussion, by the Chief Justice of India, and his colleague, Mr. Khanwilkar.5

While critical reviews of the judgment and the constitutional reasoning behind it are still in an early stage,6 none of the commentators so far have examined why this judgment is so deeply engaged in an international conversation. I would like to put forward the hypothesis that the reason behind this international colouring is that since the liberalization of the Indian economy started in 1991, the subcontinent has moved over the last twenty-seven years from an insular culture and highly protected economy to a major stakeholder in the liberal global order.

For instance, where once it was very difficult for the Indian elites and students to travel overseas, largely because of low foreign exchange reserves, today we find Indian elites mingling with major power brokers at Davos and Indian students enrolling in large numbers at all of the major universities around the globe. The recent cycle of globalization has considerably transformed the nation and the deeply conservative outlook of its society.

In fact, Justices Misra and Khanwilkar in the first part of the judgment tellingly acknowledge: “In this context, we may travel a little abroad.”7 This comment is followed by a long quote from the Supreme Court of Canada on human dignity. “Travel a little abroad” here is only a figure of speech; the virtual travel in form of citations, the nod to international treaties, extensive quotes from writers and jurists around the globe demonstrates extensive engagement with the world outside the subcontinent. The Indian judiciary of today is certainly deeply entrenched in the global commons.

Based on the literary, philosophical, and legal influences discussed here it is easy to detect a connection between the powerful forces of globalization and the overturning of section 377 of the Indian Penal Code, particularly in the Indian context. Perhaps further research might find scholars suggesting similar connections between the flows of globalization and criminal law in other jurisdictions.

*Picture retrieved from Wikimedia Commons.

Endnotes

1 Navtej Singh Johar v Union of India, WP (Crl) No 76 of 2016 at para 1 (India) [Navtej Singh Johar v Union of India].

2 Ibid.

3 https://indianexpress.com/article/india/section-377-to-be-revisited-timeline-of-the-case-5016095; https://www.boell.de/en/2018/10/05/section-377-scrapped-sexual-minorities-become-full-citizens-india; and https://caravanmagazine.in/gender-sexuality/menaka-guruswamy-discusses-section-377-judgment.

4 Justice Kirby delivered a total of six lectures from 16 December to 18 December, 2013 in Calcutta. The lectures were originally established in 1870 in honour of Prasana Coomar Tagore and are annually hosted by the University of Calcutta. My understanding of the background to the lectures, the connections to Indian judiciary and access to the first lecture is based on: https://antigaylaws.files.wordpress.com/2014/03/tagore-lecture-introduction.pdf; The lecture series is also explicitly acknowledged and noted in Navtej Singh Johar v Union of India, at para 139.

5 Navtej Singh Johar v Union of India at para 139

6 For instance see Gautam Bhatia, https://indconlawphil.wordpress.com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-the-supreme-courts-moment-of-atonement. Gautam Bhatia is particularly good at exploring how the Fundamental Rights embedded in the Indian constitution influenced this judgment.

7 Navtej Singh Johar v Union of India at para 133