India’s highest court has struck down the nation’s sodomy laws after the country’s legislature declined to do so.
The court cited among other sources retired Justice Anthony Kennedy’s dictum that “our obligation is to define the liberty of all, not to mandate our own moral code.” The dictum was used in Planned Parenthood v. Casey which upheld judicially imposed abortion-on-demand and Lawrence v. Texas which struck down Texas’ sodomy laws.
In the wide-ranging 500-page eclectic collection of ideologically diverse legal opinions, the 5-judge panel unanimously held that the country’s sodomy laws violated India’s constitution. But four of the five judges went further, saying sodomy laws violated international law, citing the non-binding opinions of UN bodies.
“There is a contradiction between India’s international obligations and Section 377 of the Indian Penal Code, insofar as it criminalizes consensual sexual acts between same-sex adults in private,” wrote Judge Dhananjaya Y. Chandrachud in his opinion.
The four judges acknowledged that there is no explicit protection for sodomy in international human rights law, but that it was implied in the non-discrimination provisions of UN human rights treaties as interpreted by UN experts. They also cited the LGBT activist manifesto called the Yogyakarta Principles as a valid source of authority for international law.
The case was the final resolution of multi-year litigation initiated by LGBT activists. In 2013 the court declined to strike down India’s sodomy laws asking the legislature to handle the matter instead. Despite a well-funded and influential LGBT lobby, the national parliament could not be brought to repeal the LGBT laws. The Indian high court gave indications that it would be willing to strike down the sodomy laws over the last two years.
Judge Chandrachud cited a long list of U.S. Supreme Court precedents of judicial activism authored by Justice Anthony Kennedy, including the most recent Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission, both cases involving homosexual marriage.
The resolution of the case was praised by newly installed UN High Commissioner for Human Rights Michelle Bachelet.
“This is a great day for India and for all those who believe in the universality of human rights,” Bachelet said in a press release from her office, which promotes homosexual marriage as a way to end discrimination against individuals who identify as LGBT.
Bachelet urged judges in the 70 countries around the world which still criminalize sodomy to impose LGBT rights by judicial activism.
“I hope that other courts elsewhere in the world will look to India’s example and be encouraged to move in the same direction,” she said. India is the largest of many former British colonies that share a common legal heritage.
Also, UN Secretary General Antonio Guterres expressed his congratulations to India.
“I welcome today’s decision by India’s highest court #LoveWins,” he tweeted.
Discrimination and prejudice are always "irrational, indefensible and manifestly arbitrary", as Chief Justice Misra says. I welcome today's decision by India's highest court #LoveWins— António Guterres (@antonioguterres) September 6, 2018
Guterres tweeted, "Discrimination and prejudice are always “irrational, indefensible and manifestly arbitrary”, as Chief Justice Misra says. I welcome today’s decision by India’s highest court #LoveWins."
Both Bachelet and Guterres will feature at a high-level event at UN headquarters organized by the “LGBT Core Group” of UN member states committed to promoting homosexual rights at the United Nations even though it is a highly controversial issue that divides the UN General Assembly. The United States is one of 24 members of the group.
Stefano Gennarini writes for the Friday Fax of C-FAM.