The Navtej Singh Johar judgment pronounced on Thursday emphasizes the transformative potential of India’s Constitution. The court has seen lesbian, gay, bisexual and transgender Indians as individuals, and recognised their humanity, individuality, and autonomy. For the first time, LGBT people spoke directly to the court, demanding to be recognised as full and equal citizens. This is the power of India’s “transformative Constitution”, as the Constitution Bench calls it – and at its heart lies Article 32 of the Constitution.
Article 32 makes the right to approach the Supreme Court for protection of fundamental rights a fundamental right in itself. In the Constituent Assembly, BR Ambedkar called Article 32 “the very soul of the Constitution and the very heart of it”. As the Supreme Court recognised in the “In re Powers, Privileges and Immunities of State Legislatures” case of 1965, the right to constitutional remedies under Article 32 is a corollary to the Court’s duty to protect fundamental rights.
Prior to the Johar case, the threat of prosecution left LGBT persons fearful of challenging Section 377 in their own names. Instead, they relied upon their teachers, parents, mental health professionals and even a Member of Parliament to speak on their behalf. The Johar petitioners were the first LGBT people to challenge Section 377 themselves. Their courage cannot be overstated. They came forward in 2016, long before the Supreme Court had recognised the right to privacy in the Puttuswamy case. They faced the very real fear that an angry mob might turn up at their doorsteps. They were people who were well-known in their respective fields, but who had kept their personal lives very private.
Yet they found the courage to tell their court and their country how this colonial-era law had wronged them. Article 32 let them tell their stories: dancer Navtej Johar and journalist Sunil Mehra celebrate their silver anniversary this year. Chef Ritu Dalmia built a business empire while being tough and unapologetic about her sexuality. Hotelier and writer Aman Nath lost his committed partner of 23 years before the petition could even be filed. Business executive Ayesha Kapur nursed her mother through a terminal illness, coming out to her shortly before she died. Their courage in turn emboldened Keshav Suri, along with 20 young LGBT students and alumni of the IITs to share with the court how their own life decisions were being shaped by Section 377.
And the court has responded. Chief Justice Dipak Misra and Justice AM Khanwilkar, in their judgment, have emphasised that the Constitution protects the individual, and in particular, individual autonomy. They speak, rightly, of the Constitution’s revolutionary ability to transform a “medieval, hierarchical society into a modern, egalitarian democracy”, in which individual autonomy is paramount. Justice DY Chandrachud notes at length the IIT petitioners’ struggles with depression and mental health issues, despite the great heights they have achieved academically. He finds that the Constitution envisages a transformation in not just the relationship between the state and the individual, but also a transformation in the horizontal equation between individuals.
Justice Rohinton Nariman’s judgment direction to the government to widely publicise the judgment, particularly amongst the police, will transform the situation on the ground. And Justice Indu Malhotra has provided succour to LGBT people in India and across the world by finding that “history owes an apology to members of this community and their families”.
All five judges have agreed that the Constitution’s guarantees of equality, dignity and liberty apply with full force to LGBT persons. This judgment has far-reaching consequences, ensuring that LGBT people will enjoy the full gamut of rights and liberties guaranteed by the Constitution. This is a great foundation for the future – truly transforming the lives of LGBT people. Today, the promises of Ambedkar’s Constitution, with its potential for radical social transformation, have been made real for LGBT Indians. With Johar, the Supreme Court has reiterated its anti-majoritarian role and the Constitution’s commitment to the individual. This is a new dawn, not for LGBT rights alone, but for individual rights and liberties in India.
Arundhati Katju represented Navtej Singh Johar and other petitioners in the case against Section 377.