From Naz to Navtej: Constitutionalism and the Decriminalization of Homosexuality in India

[Siddharth Narrain is a lawyer and legal researcher based in Delhi.]

Earlier this year, a five-judge Constitutional Bench of the Indian Supreme Court, in a path-breaking judgment in Navtej Singh Johar declared the colonial sodomy statute (Section 377 of the Indian Penal Code) unconstitutional, and no longer applicable to consenting sexual acts between adults, effectively decriminalizing homosexuality, and legally recognizing LGBTI identities in the country.

Despite being unusually broad in their scope and exposition, the judges in this case have also laid down very concrete orders. One of these is found in Justice Rohinton Nariman’s opinion, where he has ordered the government to take measures to publicise the judgment on television, radio, print and online media at regular intervals and to initiate programs to eliminate the stigma related to LGBTI persons, and to conduct sensitisation programs on LGBTI issues for government and police officials.

Another example is from Justice Indu Malhotra, in her opinion, specifically states that this judgment can be relied upon in all pending prosecutions under Section 377, whether in the trial, appellate, or revisional stage. In both these judges’ orders, we see an acute sensitivity to the possible gaps between the Supreme Court laying down the law, and it percolating to each police station, government office, and institutional structures that are sites of discrimination.

This is not the first time that the courts have ruled on LGBTI issues in India. In 2009, the Delhi High Court in Naz Foundation for the first time read down Section 377, but a two-judge Bench of the Supreme Court overruled this decision in Suresh Kumar Koushal in 2013 In 2014, another two-judge Bench of the Supreme Court in the National Legal Services Authority (NALSA) case, recognized transgender identities, but did not address the question of the sodomy law directly.

In 2017, a nine-judge Bench of the Supreme Court, in Puttaswamy, explicitly recognizing the right to privacy as a fundamental right, remarked that LGBTI persons also enjoyed the right to privacy and that subjecting LGBTI persons to hostile treatment was impermissible. While the judges did not have the authority to overrule their earlier decision given that an appeal was still pending before the Supreme Court, five of the judges in this case made it clear that they did not agree with the reinstatement of the sodomy law.

The fact that the Indian Supreme Court overruled its earlier decision did not come as a surprise, the manner in which it did. The judgment, written as four separate concurring opinions, is extraordinarily expansive in its scope. Not only has it firmly cast aside its earlier decision in Suresh Kumar Koushal, making it appear as an aberration, it also laid a strong foundation for a wide range of future rights claims, not restricted to LGBTI issues.

The judges in Navtej Singh Johar have taken different approaches in arriving at their decision, but are more or less in broad agreement with each other. Central to their reasoning is an expansive and robust understanding of principles of constitutionalism.

The opinion authored by Chief Justice Dipak Misra and Justice A.M. Khanwilkar addresses this theme in great detail. The judges characterize the Indian Constitution as an organic, dynamic, living document, as a document that can respond to the times, and as not only recognizing rights but also setting social agendas.

The judges draw upon precedents from India, South Africa and the United States to emphasise the role that the Constitution has played and continues to play in these societies. The judges refer to a range of judgments from South Africa that refer to the transformative nature of the South African Constitution, where the Constitution becomes a repository of the hope and vision for the realization of socio-economic rights, a document that envisages a more equal society where individuals are able to lead their lives with dignity.

The second idea that the judges focus on is the aspect of constitutional morality. It is clear from the four opinions, that the judges view their decision, as not just being about LGBTI persons but as being part of a much larger debate in India around the fundamental rights of individuals versus the constraints of societal morality. The judges rely on recent precedents from the Indian Supreme Court, in which the judges have upheld individual rights in the face of social and majoritarian morality.

The judges envisage the role of the judiciary to be that of a counter-majoritarian one. They are emphatic in rejecting the reasoning in Suresh Kumar Koushal that LGBTI persons were a “miniscule minority” and therefore somehow less deserving of rights guaranteed under the Constitution. The judges are clear that it is the duty of courts to step in to protect the rights of “insular and discrete minorities” being trampled upon by the Executive or Legislature.

The emphasis of the judges on constitutional morality has to be read together with their reading of the value of fraternity along with that of dignity, equality and liberty. For the judges, the gap between judicial pronouncements and societal reality has to be bridged by inculcating the value of fraternity that is inscribed in the Preamble to the Indian Constitution, and in inculcating a culture of constitutionalism.

The onus is then on the majority to respect and recognize the rights of LGBTI persons. In that sense this judgment is as much about the majority of Indian citizens as it is about disadvantaged minorities. The value of fraternity when read with dignity, and their reading of ‘sex’ in the non-discrimination clause (Article 15) to include sexual orientation, allows the judges to move the focus from state and executive action to discrimination from sites within civil society – families, neighbours, citizenry in public spaces, private places of work etc.

In remarkable move, Justice D.Y. Chandrachud specifically states that the right to privacy recognized under the right to life and liberty (Article 21) would not just apply to privacy of spaces but to persons, and that the right to autonomy of individuals must capture the rights of persons to navigate public spaces on their own terms, free from state interference.

The judges’ emphasis on transformative constitutionalism, constitutional morality, and the culture of constitutionalism in Navtej Singh Johar lays down a solid foundation for future battles around LGBTI rights specifically, and for challenges to gender biased, hetero-normative laws and regulations, more broadly.