Anthony Kennedy: “…the right to define one's own concept of existence, of meaning, of the universe…” via Wikimedia

With an introduction that cites the Western authors Goethe, Schopenhauer, John Stuart Mill, and William Shakespeare (in Romeo and Juliet), and with the portentous pronouncement that the “denial of self-expression is inviting death,” the Supreme Court of India has overturned an Indian penal statute criminalizing sodomy.  In concurring opinions, various justices cite Oscar Wilde, Shakespeare’s Julius Caesar, and a Leonard Cohen song. 

The specific statute dated from the British occupancy of India in the 1860’s, and it had not been changed by the Indian Parliament since independence in 1948.   In recent years, homosexual activist groups have been suing to have the Indian Supreme Court overturn the statute.

In a 2013 ruling, the Court had said that it was up to the Parliament to change laws and that the law did not “suffer … from the vice of arbitrariness and irrational classification.”  The Court criticized the lower court for having “extensively relied upon the judgments” of courts of other countries and said that those other decisions “cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.” The Court ruled that “the competent legislature shall be free to consider the desirability and propriety” of changing the law. 

Now, in the case of Navtej Singh Johar & Ors  v. Union of India handed down last month, the Indian Supreme Court has completely reversed itself.  During the proceedings and prior to the decision, the national government had abdicated its role and refused to defend the statute (like the Obama administration in the first homosexual-marriage case, Windsor) and announced that it would rely on “the wisdom of the Court.” 

The Indian Supreme Court’s inspiration and principal referenced sources are the United States Supreme Court’s decisions on sodomy and homosexual marriage and their philosophic foundation in the famous invent-the-universe passage co-authored by Justice Anthony Kennedy in the 1992 abortion case, Planned Parenthood v. Casey: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”  

In its own version of this passage in Casey, the Indian Supreme Court paraphrases: “One defines oneself. That is the glorious form of individuality. . . It is equivalent to authoring one’s own life script where freedom broadens every day.” Each person may “determine and follow his/her pattern of life,” the Court says. And, indeed, the Court has now expanded the proposition beyond mere jurisprudence and philosophy.  “Identity,” the Court holds, is “sacred” and “is equivalent to divinity.”

In the sodomy case, Lawrence, the United States Supreme Court said that “persons in a homosexual relationship may seek autonomy” for the “defining” purposes of the Casey passage.  In the first homosexual-marriage case, Windsor, Justice Kennedy approved of those states that had already changed marriage for the sake of “those same-sex couples who wish to define themselves by their commitment to each other.” And in Obergefell, the second homosexual-marriage case, the Court elevated to constitutional status “intimate choices that define personal identity and belief.”

According to India’s highest Court, the choice to engage in certain sexual acts “defines the individualism of a person.” And those sexual acts are “owning to some inherent characteristics defined by [a person’s] identity and individuality.”  The Indian Court cited with approval Justice Blackmun’s dissent in Bowers v. Hardwick, the first Supreme Court sodomy case, in which Blackmun had spoken of “the fact that individuals define themselves in a significant way through their intimate sexual relationships with others.”

Kennedy said in Casey that the case involved “choices central to personal dignity and autonomy.”  The Supreme Court elaborated on that in Lawrence when it asserted that “liberty presumes an autonomy of self.”  And in Obergefell, the Court held that the Bill of Rights contains more liberties than those stated, namely, “certain personal choices central to individual dignity and autonomy.”  In its own restatements of those American cases, the Indian Supreme Court has now agreed: “Sexual orientation” is “intrinsic to their dignity, inseparable from their autonomy” of “members of the LGBT community.” The “heart of the discrimination in this case” is, the Indian Court holds, a “breach of the rights of privacy and dignity,” for “autonomy is individualistic” and “under the autonomy principle, the individual has sovereignty over his/her body.”

In the overturning of its prior 2013 decision, the Indian Supreme Court now concludes that its new-found “constitutional morality” rather than “majoritarian governments” must control. The “liberty with dignity” that is “guaranteed” by the Indian Constitution means that “one is entitled to determine and follow his/her pattern of life.”

Besides its foundational reliance upon and direct paraphrasing, as described above, of the United States Supreme Court, the Indian Supreme Court likewise quoted and relied upon cases and jurisprudential writings of other members of the British Commonwealth, United Kingdom (Britain), Canada, South Africa, and Australia, as well as the European Court of Human Rights.

The old colonial morality is repudiated. “Victorian morality must give way to constitutional morality,” the Indian Supreme Court has decided. But the new morality, based on the modern jurisprudence and courts of the British Commonwealth, including of the United States, is still British, if not Victorian.  Nowhere in the decision is there any consideration of any morality, culture, customs, or law of pre- or extra-colonial India.

American attorney Thomas R. Ascik has written on a wide variety of legal and constitutional issues.

Correction: The original headline of this article referred to “same-sex marriage”. This has been corrected to “sodomy”.

Carolyn Moynihan

Carolyn Moynihan

Carolyn Moynihan is a New Zealand journalist with a special interest in family issues. She began her working life as a secondary school teacher but always fancied the life of the scribe. Too late, she...