The Delhi High Court has read down s. 377 to exclude consensual sex between adults in private in its judgment in Naz Foundation v. Union of India (2009). Aspects of the case will surely be discussed in detail. Here, I just want to highlight one aspect with far-reaching constitutional implications.
The Court has given a new lease of life to Article 15: it read sexual orientation as an analogous ground in Article 15(1), insisted that Article 15 pohibits horizontal discimination between citizens as well, and applied strict scrutiny! (paras 105-115) On the latter, it harmoniously read Anuj Garg and Ashoka Thakur to suggest that strict scrutiny will be applied to Article 15 violations, except for affimative action provisions (paras 109-111). This is exactly what I had argued in my article ‘Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement’ in JILI in 2008.
On horizontality, para 104 says:
Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.
This is groundbreaking. Pesumably, the horizontal protection extends not just to sexual orientation but also to other grounds like sex, religion and caste. Prohibiting discrimination in the private sector is now a constitutional imperative. Para 93 of the judgment cites nuanced concepts such as ‘direct discrimination’, ‘indirect discimination’ and ‘harassment’: concepts that this Open Letter to the Minority Affairs Minister on the Equal Oppotunity Bill insisted upon. For all their opposition to the judgment, religious groups should not miss this crucial constitutional interpretation which will probably benefit them the most.
On the question of justification of a restriction of Article 21, the Court draws this crucial distinction between popular morality and constitutional morality in para 79:
Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly.
See also: Nivedita Menon’s moving post on the verdict on Kafila.