The Indian Supreme Court against the British Misogynistic and Homophobic Colonial Legacy: A Model to Follow for Other Commonwealth Courts?

[Eugénie Mérieau is a legal consultant for the International Commission of Jurists.]

In September 2018, the Indian Supreme Court invalidated, in two landmark rulings, misogynistic and homophobic laws inherited from the British Empire. On September 27, it struck down Section 497 of the Penal Code (Shine v. Union of India) criminalizing adultery, three weeks after it had annulled Art. 377 of the Penal Code (Navtej Johar v. Union of India) criminalizing sodomy.

Art. 497 reads:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.”

While Art. 377 punishes

“[w]hoever voluntarily has carnal intercourse against the order of nature.”

Adultery, only applicable to men, carried jail sentences of up to five years, while sodomy carried a possible life-imprisonment sentence.

The Indian Supreme Court found both articles of the 1860 Penal Code to be in violation of Arts. 14 and 15 (Equality before the Law) as well as Art. 21 (Individual Freedom; Right to Privacy) of the Indian Constitution. In a literary style unique to India, Shine v. Union of India unfolds over 250 pages, while Navtej Johar v. Union of India falls a little short of the 500-page milestone. The court’s references span from philosophy (Schopenhauer, Mill, Bentham) to literature (Goethe, Shakespeare); from modern music (Leonard Cohen) to the Quran and the Old Testament.

Both decisions, issued in the context of a crisis of legitimacy involving the Chief Justice, Dipak Misra, are historic, not only because they overturned earlier Supreme Court rulings but also because they are part of a wider trend to “decolonize” penal laws in the former British colonies, a trend that seems to be increasingly led by the courts rather than by national parliaments.

During his last month in office before his retirement, Misra stressed the court’s commitment to the highly “transformative” character of the Indian Constitution in the context of an archaic society:

“[T]he Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy,” which needs to turn against “certain sections of our society [that] are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions.” Untainted by issues arising under the “counter-majoritarian difficulty,” the president envisions the court’s role as one of judicial activism against the majority, enforcing a progressive “constitutional moral” against a backward “social moral.”

Yet in issuing both rulings, the court not only adopted a “transformative” view of the Constitution but also adhered to a “postcolonial” or “decolonial” interpretation of law. Indeed, it is actively erasing the legacy of British colonialism when the Indian Parliament failed to do so.

The so-called sodomy and adultery laws are a legacy of British colonialism. Since 1860 and the adoption of the Indian Penal Code, the British Empire spread throughout its colonies a set of laws imbued with Victorian morality, prohibiting any form of nonreproductive sex (such as oral and anal sex) as “crimes against nature” and condemning any sex outside of marriage. In Great Britain, sodomy was only legalized in 1967 through an Act of Parliament.

Owing to the common law tradition, the supreme courts of former British colonies (and countries heavily influenced by the British, such as Nepal) have long refused to hold “their” sodomy laws as unconstitutional and have preferred to defer such matters to their respective parliaments.

The Indian Supreme Court itself chose this path in 2013, before reversing its stance in its landmark ruling on September 6, 2018, which decriminalized gay sex. Likewise, in 2014, the Appellate Court of Singapore also refused to annul its corresponding sodomy law, while in 2015, in Malaysia, higher courts upheld the sentence of former opposition leader Anwar Ibrahim to a heavy jail term for sodomy.

Notwithstanding these examples, many supreme courts have in recent years annulled their sodomy laws, referring to the precedent set by the South African Constitutional Court in 1998, such as Fiji (2005), Hong Kong (2005), Nepal (2007), Belize (2016), and Trinidad and Tobago (2018). In Singapore, a new campaign against Article 377A is currently gaining momentum. A case is currently pending in Kenya.

The Indian Supreme Court is, together with the Constitutional Court of South Africa (which had set the judicial invalidations of sodomy laws in motion), one of the most influential courts in the Commonwealth. This influence is illustrated in the diffusion of the so-called Basic Structure Doctrine, which has already spread to South Asia and the Caribbean. Therefore, the outreach of the anti-Victorian decisions of the Indian Supreme Court could be tremendous.

British Prime Minister Theresa May, in April 2018, urged the Commonwealth nations to remove these laws. Out of the fifty-three Commonwealth nations, although most have repealed adultery laws, around thirty still criminalize sodomy.

Following the ruling Navtej Johar v. Union of India, according to which “criminalizing carnal intercourse under Section 377 of the Indian Penal Code is irrational, indefensible and manifestly arbitrary,” the people of India took to the streets of Delhi, Mumbai, Kolkata, and other cities to celebrate. The next day, the Times of India ran a headline reading: “Independence Day.”