India: You’re Criminal If Gay

The following article appeared in The Times of India on January 26. It had the title “A Mother and a Judge Speaks Out on Section 377.”

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Magnum Photos
Varanasi, India; photograph by Raghu Rai

My name is Leila Seth. I am eighty-three years old. I have been in a long and happy marriage of more than sixty years with my husband Premo, and am the mother of three children. The eldest, Vikram, is a writer. The second, Shantum, is a Buddhist teacher. The third, Aradhana, is an artist and filmmaker. I love them all. My husband and I have brought them up with the values we were brought up with—honesty, courage, and sympathy for others. We know that they are hardworking and affectionate people who are trying to do some good in the world.

But our eldest, Vikram, is now a criminal, an unapprehended felon. This is because, like many millions of other Indians, he is gay; and last month, two judges of the Supreme Court overturned the judgment of two judges of the Delhi High Court that, four years ago, decriminalized homosexuality. Now, once again, if Vikram falls in love with another man, he will be committing a crime punishable by imprisonment for life if he expresses his love physically. The Supreme Court judgment means that he would have to be celibate for the rest of his life or else leave the country where he was born, to which he belongs, and which he loves more than any other.

I myself have been a judge for more than fourteen years—first as a judge on the Delhi High Court, then as Chief Justice of the Himachal Pradesh High Court. Later, I served as a member of the Law Commission, as well as the Justice J.S. Verma Committee, which resulted in the Criminal Law Amendment Act 2013 being passed. I have great respect for legal proprieties in general, and would not normally comment on a judgment, but I am making an exception in this case.

I read the judgment of the Delhi High Court when it came out four years ago. It was a model of learning, humanity, and application of Indian constitutional principles. It was well crafted, and its reasoning clearly set out. It decided that Section 377 of the Indian Penal Code infringed Article 14 of the Constitution, which deals with the fundamental right to equality. It infringed Article 15, which deals with the fundamental right to nondiscrimination. And it infringed Article 21, which covers the fundamental right to life and liberty, including privacy and dignity. The judgment of the High Court “read down” Section 377 in order to decriminalize private, adult, consensual sexual acts.

The government found no fault with the judgment and did not appeal. However, a number of people who had no real standing in the matter did challenge it. Two judges of the Supreme Court heard the appeal in early 2012. Then, twenty-one months later, and on the very morning of the retirement of one of them, the judgment was…


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