Nussbaum's Op-Ed in Indian Express on India's Sodomy Law
In 1982, Michael Hardwick, a gay man, was having consensual sex with a male partner in his bedroom in Atlanta, Georgia. Police officer Keith Torick entered the apartment with a warrant (for public drinking) that had been invalid for three weeks. Admitted by Hardwick's housemate, he went straight to the bedroom. Seeing the men, he announced that they were under arrest. "I said, for what? What are you doing in my bedroom?" Torick showed the warrant; Hardwick pointed out that it was invalid. Torick said it didn't matter, and they had better get dressed and come with him. "I asked Officer Torick if he would leave the room so we could get dressed and he said, there's no reason for that, because I have already seen you in your most intimate aspect." Hardwick later challenged the Georgia sodomy law in court, unsuccessfully.
Sodomy laws are intrusive and violate human dignity. People need zones of freedom around them so that they can conduct their most intimate consensual activities unobserved and without interference. A society that protects these zones of liberty is both more just to individuals and stronger as a whole than a society that allows conventional norms to tyrannise over personal dignity. Torturers and concentration camp administrators have long known that the removal of simple bodily privacy is an effective way of insulting human dignity and marking some people as not fully human.
The recent Supreme Court decision overruling the Delhi high court and reinstating Section 377 of the Indian Penal Code is distressing on a number of grounds. As legal reasoning, it is slapdash and almost shocking in its cavalier way with fact and argument. For an appellate court to overrule a lower court on findings of fact (as opposed to issues of law) is highly unusual, occurring only when the lower court's factual errors have been egregious. And yet, the SC judgment simply asserts without argument that the factual record in the Delhi judgment, concerning the extreme burdens Section 377 places on the gay community and on medical workers in the HIV/AIDS sector, is insufficient — despite the fact that the case laid out in the Delhi judgment is extremely detailed and solid, and despite the fact that the SC itself extensively cites from an amicus brief by AIDS activist Anand Grover, a UN special rapporteur and one of the original plaintiffs in the case, in support of all the major factual findings of the Delhi judgment. Nor are the legal arguments solid: the key contention of the Delhi judgment, that majority preferences must not trump fundamental rights inherent in human dignity, is never given a careful reply.