In the ruling on September 6 the court declared that part of section 377 of the Victoria-era Indian Penal Code (enacted by the colonial state in 1870) which criminalised consensual adult sex was unconstitutional. Among the reasons for which it made this ruling was that section 377 violated the guarantee of non-discrimination under Article 15 of the Indian Constitution.
In explaining its interpretation of Article 15, two (of five) judges on the bench that delivered a unanimous judgment drew extensively from research on discrimination law by Dr Khaitan. This new interpretation of Article 15 opens up avenues for challenging multiple forms of discrimination in India.
In this opinion, Justice Chandrachud quoted Dr Khaitan as writing:
“But the salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy is at a crossroads…Inclusiveness and pluralism lie at the heart of Article 15, which can be our surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.” [para 46]
Justice Malhotra, in her concurring opinion, relied on Dr Khaitan’s work to find that Article 15 prohibited discrimination on any ground that undermines an individual’s personal autonomy [para 15.2].
The citation of Dr Khaitan’s work in this landmark case follows his being awarded the prestigious Letten Prize for highlighting unjust inequalities in present day society.