Asian Window

In The Indian Express, Pratap Bhanu Mehta applauds a brave new Delhi High Court judgment for upholding our Constitutional values of  liberty, equality, privacy and a check on state power.

The white and the red rose: Currier & Ives, 1860s, from the Library of Congress

There come moments in the life of a nation when it has to confront its deepest prejudices and fears in the mirror of its constitutional morality. The Delhi high court’s judgment in Naz Foundation vs Union of India, decriminalising private, adult, consensual homosexual acts, does just that. The judgment is a powerful example of judicial craftsmanship. It is, unusually amongst recent judgments that are constitutionally significant, clear and precise. It embodies the right combination of technical rigour in thinking about the law, with a persuasive vision of the deepest values those laws embody.

There will be an appropriate time for a detailed legal analysis of the judgment. Many will, doubtless, latch on to the judgment as offending something called our tradition or our values. But to interpret it this way would be a mistake. What the court says is this. Under our constitutional scheme, no person ought to be targeted or discriminated against for simply being who they are. If we give up this value, we give up everything all of us cherish: both our liberty and our right to be treated equally. This judgment is defending our values. Simply put, the judgment says that the state has no presumptive right to regulate private acts between consenting adults. It protects privacy. That is our value. The judgment says that individuals should not feel so stigmatised that they are unable to seek medical help. That is our value. more

[pic: cc, Bobster]

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