Description

On September 06, 2018, a five judge Constitution bench of the Supreme Court of India read down Section 377 of the Indian Penal Code to decriminalize sex between consenting adults in private. The Court was unanimous in its conclusion that the provision violated the rights to equality, free expression, and life guaranteed by the Fundamental Rights chapter enshrined in the Indian Constitution. However, in doing so, it delivered four separate judgments which despite having provided genuine relief to India’s LGBT+ communities, also display some weaknesses and limitations of the ruling. The nearly 500 page decision of the Court is being hailed as historic, but its implications are still being worked out.

My brief talk will aim at providing a broad sense of the decision by introducing its case history and the nearly two decade long struggle for decriminalization before the courts. I will focus on the doctrinal details of the case, while also exploring its significance at this particular juncture in the history of the Supreme Court and of Indian constitutionalism. Apart from other issues, I will also focus on the way comparative trends and rulings have had an impact on the case, and how it, in turn, may spur further litigation in retentionist jurisdictions.

About The Commentator

Dr Ronojoy Sen is Senior Research Fellow (and Research Lead, Politics and Governance) at the Institute of South Asian Studies and the South Asian Studies Programme, National University of Singapore. He has worked for over a decade with leading Indian newspapers, most recently as an editor for The Times of India. His latest book is Nation at Play: A History of Sport in India (Columbia University Press/Penguin, 2015). He is also the author of Articles of Faith: Religion, Secularism, and the Indian Supreme Court (Oxford University Press, 2010) and has edited several books, the latest being Media at Work in China and India (Sage, 2015). He has contributed to edited volumes and has published in several leading journals. He also writes regularly for newspapers. He has a Ph.D. in political science from the University of Chicago and read history at Presidency College, Calcutta. He has held visiting fellowships at the National Endowment for Democracy, Washington, D.C., the East-West Center Washington and the International Olympic Museum, Lausanne, Switzerland

About The Speaker

Arun K. Thiruvengadam is a Professor of Law at the School of Policy and Governance, Azim Premji University, Bengaluru, India, where he has been based since July 2015. He holds degrees in law from the National Law School, Bangalore and the New York University School of Law. Between 1995-97, he served as a Law-clerk-cum-research-assistant to the Chief Justice of India, Justice A.M. Ahmadi. He practiced law for approximately two years before the High Courts of Madras and Delhi and the Supreme Court of India, before commencing graduate studies in 1999. He has held research positions at the National Law School (1999-2001) and New York University School of Law (2003-05). He was successively a Visiting Fellow (2005-07) and an Assistant Professor of Law (2007-15) at the Faculty of Law, National University of Singapore.

His most recent book is the ‘Constitution of India: A contextual analysis’ (Hart Publishing/Bloomsbury UK, 2017; Bloomsbury India 2018). He teaches and writes in the areas of comparative constitutional law, Indian public law, and Law and Development.