While clearly a watershed decision for the queer community, the Indian court's recent reading-down of Section 377 will likely benefit other minorities as well.
After agitating for many years against the existence of Section 377 of the Indian Penal Code, which criminalised homosexuality, it is understandable that the Delhi High Court's 2 July decision in the Naz Foundation case, decriminalising homosexuality, has been welcomed and celebrated by the LGBT (lesbian, gay, bisexual and transgender) community. But to see this decision as a victory of the LGBT community alone would be to do injustice to the Delhi High Court's remarkably progressive and well-reasoned decision, and the immense potential this judgement has for changing the course of equality jurisprudence in India. It would also display a very narrow understanding of the relationship between constitutional change and social movements striving for a more just and democratic society.
Like Roe v Wade and Brown v Board of Education, which legalised abortion in the United States and ended racial segregation in public educational institutions, the Naz Foundation decision has the potential to be a case whose name conjures up the history of a particular struggle, celebrates the victory of a moment and inaugurates new hopes for the future. The victory is also highly significant because it introduces a radical politics of impossibility: by overturning what would have been impossible to imagine, the decision does not merely change the conditions of the group whose rights and demands are in question, but changes the horizon of possibility for the law and for constitutional interpretation itself. Let us look at two crucial dimensions of the High Court decision: first, what it means within the realm of constitutional imagination; and second, what its immediate impact on the everyday life of the queer community has been.
Constitutions are not merely charters of governance; they are also ethical documents that lay down a collective commitment that members of a community make to a set of principles as well as to each other about the kind of life they wish to pursue. Thus, the political form that we choose to govern our societies is not separable from the way in which we choose to govern ourselves as individuals and in our relation to others. Who or how I choose to love is, then, both an individual choice and a question of political form and expression. Following Jawaharlal Nehru's quote included in the court's judgement of words being "magic things", one way of reading the Constitution is to see it as a city of words built on the foundational promise made in its preamble – towards securing for its citizens justice, liberty, equality and fraternity. It is important to recall that these are virtues that justify why we give unto ourselves a constitution or why we agree to be 'constituted' within a collective.