The Supreme Court’s judgment in Navtej Johar v Union of India, reading down Section 377 of the Indian Penal Code to decriminalise consensual homosexual acts, is important and welcome, but is just the first step towards the creation of a more inclusive nation. In the cold light of day, for all its 493 pages of reasoning and findings, the Supreme Court has put India in no different a position than it was when the Delhi High Court first read down Section 377 in Naz Foundation v NCT of Delhi in 2009. All that the Supreme Court has done on Thursday really is to atone for its institutional error and restored to its lesbian and gay citizens, the right to a life of dignity and privacy that the Delhi High Court had first acknowledged and affirmed.
The seeds of this particular judgment were sown in the concurring opinions of Justice DY Chandrachud and Justice Sanjay Kishan Kaul in the Justice (Retd) K Puttaswamy v Union of India judgment recognising the right to privacy and defining its broad contours. In holding that one’s sexual orientation and right to choose a partner form inalienable parts of the right to privacy, and strongly disapproving of the callous and cruel language of Suresh Kumar Koushal v Naz Foundation, the Supreme Court effectively set the stage for Thursday’s judgment. With the challenge to Section 377, and the curative petition against Koushal pending, it was only a matter of listing the cases to do the needful.
What should we make of the four concurring opinions delivered in this case?
Chief Justice of India Dipak Misra’s opinion, which Justice AM Khanwilkar also signed on to, continues the contradictory trajectory of what may be called Misra’s body of work – of someone who alternates between celebrating civil liberties (Hadiya, the Meesha book ban) and finding new, injudicious ways of trampling upon them (the national anthem case, upholding the constitutionality of criminal defamation). In that sense, much of Misra’s opinion does not go much beyond the sparkling clarity of the opinions of Justices Shah and Muralidhar in the Delhi High Court.
If ever anyone sought an authoritative text on the history of the provision, and the legal developments around bans on homosexual acts in Britain and elsewhere, one needn’t look much beyond Justice Rohinton Nariman’s judgment. He too rests the basis of his opinion on the principles of the right to privacy, equal protection under the laws and the right to live with human dignity – essentially hewing to the Delhi High Court judgment in Naz Foundation.
Justice Malhotra’s short and concise opinion, apart from re-stating the principles earlier enunciated in the previous judgments, ends on a note of apology for the suffering inflicted on the LGBT community as a result of the law, and the ignorance and bigotry influenced by the law. Unstated perhaps is also an apology on behalf of the court for the atrocious judgment in Suresh Koushal.
The longest opinion is that of Justice DY Chandrachud but it is also qualitatively very different from the other three opinions. The best way to understand it is to see it as a continuation of his opinion in Puttaswamy where he clearly laid the foundations for the outcome of this judgment. It is necessary to focus on Chandrachud’s opinion not only because of this background but also for what it foregrounds on the issue. While the case concerns only Section 377, Justice Chandrachud’s opinion has its eye fixed firmly on the future, building the conceptual and jurisprudential foundations for a much greater expansion of gay rights in India than ever. He notes, perceptively, that Section 377 is not just about sex or sexual acts – sexual orientation is an identity and the basis for a relationship that sustains human life. He links this to not just the civil right to choose one’s partner, but also to the overall mental and physical well-being of a person. On can safely say that with Chandrachud’s relatively long term on the Supreme Court and his articulated approach to the matter, Navtej Johar could form the beginning of a body of path breaking jurisprudence in India concerning LGBT rights in the areas of personal laws, workplace discrimination and free speech, at the very least. Given the legislative lethargy on the topic (to put it mildly), perhaps it is inevitable that the judiciary will be at the vanguard of this necessary societal and legal change.
It stands to reason that Chandrachud’s opinion should (and will mostly likely) be the basis for a wide-ranging set of judgments that could break down barriers for the LGBT community. He has seized the opportunity to ensure that Navtej Johar is not remembered for simply setting the clock back to 2013 as far as gay rights in India are concerned, but also for setting a path to reform for the future. Where Puttaswamy set out what has become the definitive charter on privacy rights in India, Navtej Johar could do the same for a judiciary-driven exercise to break down barriers of prejudice and bigotry against the LGBT community in the law and legal institutions.
This is not the first time in the world that a top constitutional court has changed its mind on the decriminalisation of homosexuality. As referred to by Nariman, the US Supreme Court took 17 years to overturn its precedent in Bowers v Hardwick by holding criminalisation of sexual activity between two consenting adults of the same sex to be unconstitutional in Lawrence v Texas. That the Indian Supreme Court has taken only four years to overturn its judgment is not really a testament to the court – rather an acknowledgement of an institutional failing for having messed up its handling of the issue in the first place. Between Lawrence v Texas and Obergefell v Hodges where it declared that same-sex partners had a constitutional right to marriage equality, the US Supreme Court took 11 years. If the Supreme Court’s judgment in Navtej Johar is anything to go by, one expects that the gap for a similar exercise in India will be much, much shorter.