Four Years Of Navtej Singh Johar Judgment : The Road Ahead After De-criminalization Of Consensual Homosexuality

Justice DY Chandrachud, who was one of the authors in Navtej Johar Case (Supra) began his opinion by the following lines:

"A hundred and fifty-eight years ago, a colonial legislature made it criminal, even for consenting adults of the same gender, to find fulfilment in love. The law deprived them of the simple right as human beings to live, love and partner as nature made them. The human instinct to love was caged by constraining the physical manifestation of their sexuality."

The significance of the judgment

It was in 2014 when third gender was officially recognized after the National Legal Services Act judgment by the Supreme Court. It was after the NALSA judgment that the transgender community finally felt included and seen. In 2018, when the Navtej Johar judgment came, it was a welcoming step not only for sexual minorities but for every other individual who wanted to opt any gender of his/her/their choice.

A) Section 377 was partially struck down: The court declared that Section 377 of the Indian Penal Code, in so far as it criminalizes consensual sexual conduct between adults of the same sex, is unconstitutional

B) Rights of the LGBT community to be protected: Apart from de-criminalizing the provision which barred consensual intercourse between adults, the court also directed the members of the LGBTQ community are entitled to every protection which is granted under the Indian Constitution. It is pertinent to highlight that in his concurring opinion, Justice RF Nariman also called upon the government to take measures to "eliminate the stigma associated with sexual minorities; the relevant paragraph is reproduced here:

"We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons."

C) Right to choose: One of the most important observations was regarding the ambit of sexual orientation. The court said that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.

D) Suresh Koushal overruled: The Supreme Court overruled the decision in Suresh Kumar Koushal and another v. NAZ Foundation and others, in which a division bench of Supreme Court overturned the Delhi High Court case, Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. In this regard, Justice RF Nariman particularly observed that "the fact that only a minuscule fraction of the country's population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal (supra), it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision."

It is also important to note that now when we look back to Navtej Johar judgment along with KS Puttaswamy judgment in privacy case, it is needlessly to say that autonomy and privacy are inextricably linked and both of them requires the other for its full realization. In this regard, it is important to recall what the court said in KS Puttaswamy:

"Privacy postulates the reservation of a private space for the individual, described as the right to be left alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy."

What is the situation post Navtej Johar Case?

After the judgment in Navtej Johar, there have been instances where the issues faced by the LGBTQ community has been acknowledged by the judiciary. For instance, Justice N. Anand Venkatesh of the Madras High Court said that he was trying to break his own preconceived notions about same sex relationships and was in the process of evolving and sincerely attempting to "understand the feelings of people involved in such relationships and also that of their parents to whom such relationships involving their children come as a rude shock."

Interestingly, the Madras High Court expressed its concern over the rising queerphobia and said that medical courses in India reaffirm queerphobia and discrimination against LGBTQIA+ communities and called for necessary reforms in the medical curriculum. The court was hearing a plea filed by a lesbian couple seeking protection from their relatives.

In a significant decision the Madras High Court had directed the Union and the State Government to take steps to prohibit attempts by physical and health professionals to medical professionals to medically "cure" or change the sexual orientation of people belonging to LGBTQIA+ community. The Court has also directed that action should be initiated against those who try to profess or promote the said practice. It is pertinent to note that the National Medical Commission (on August 25, 2022) also directed and, in this regard, notified that Conversion therapy will be regarded as "professional misconduct."

The Madras High Court had also directed the police department to refrain from harassing activists and those belonging to NGOs working for the LGBTQ+ individuals, and not just the people who belong to the community.

With regard to the reservation to Transgender persons the Karnataka Government had decided to provide 1% of vacancies to be filled in any services or post by the State government from among the transgender candidates in each category of General merit, SC,ST and in each of the OBC categories. On a similar footing, the Madras High Court on June 7, 2021 issued guidelines for creating a safe environment for LGBTQIA+ persons and to ensure that they are not harassed by the police during the investigations into missing complaints filed by their parents.

Is it only for the courts to protect sexual minorities from being harassed?

Although the question of choice, sexual orientation and gender has been a topic of debate on many occasions but it is not only for the court to protect sexual minorities from the stigma which they have been facing since decades. It is also for the society, along with the authorities to make the world a better place. There were series of directions given by the Supreme Court in Navtej Johar Case, NALSA judgment but it is needlessly to say that only some measures were taken to remove the stigma.

The question is more about inclusion and not separation because in most of the scenarios, people treat them differently and that deviates the point. Sexual orientation, sexual preference should not a hurdle for someone on the basis of which one should be discriminated or segregated. Though, there have been instances where Transgender persons have been appointed as officers, teachers etc, but more inclusion is needed to create a safe and diverse space.

In this regard, it is pertinent to recall what Delhi High Court observed in Naz Foundation case, regarding constitutional morality and said that it must prevail over majoritarian view:

"Thus, popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of "morality" that can pass the test of compelling state interest, it must be "constitutional" morality and not public morality… In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view."

The stand of the government and reaction to the judgment

As it has been pointed out that the Central Government has not been giving "wide publicity" to the judgment at "regular intervals" through mass communication media and it has also not given any information through official medium regarding programs initiated by it to reduce and eliminate stigma associated with sexual minorities over the past years.

On the issue of same-sex marriages the central government has taken a confined view before the Delhi High Court. The government opposed any changes to the existing laws on marriage to recognise same-sex marriage and said that such interference would cause "a complete havoc with the delicate balance of personal laws in the country".

"Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a 'husband', a biological woman as a 'wife' and the children born out of the union between the two," the Central government argued before the Delhi High Court

The road ahead

A law which is unjust, arbitrary and discriminatory in nature should fade away, no matter what or how many years it has been into the statute books. In this regard, Justice RF Nariman rightly noted in Navtej Johar case that the rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with—as Justice Holmes said in the lines quoted above in this judgment—a law merely for the sake of continuing with the law "when the rationale of such law has long since disappeared."

In an article titled, "A mother and judge speaks out on section 377" Justice Leila Seth beautifully wrote:

"What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization, or worse, to recriminalize it, is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial pusillanimity, for there is no doubt, that in the constitutional scheme, it is the judiciary that is the ultimate interpreter."

The judgment in Navtej Johar was a team effort, from activists to lawyers who fought the case from day one. In an interview with CNN's Fareed Zakaria, Senior Advocate Menaka Guruswamy and Arundhati Katju opened up that they were indeed a couple and that the victory was not just a professional triumph but also personal. "The loss in 2013 was a loss as lawyers, a loss as citizens. It was a personal loss," said Guruswamy, referring to the December 2013 judgment of the SC which restored Section 377 IPC to the book by overturning the 2009 verdict of Delhi High Court striking down the colonial provision.

Although, de-criminalization of 377 was just another hurdle for sexual minorities and hence there are many more. From preventing sexual harassment to creation of safe space of sexual minorities, we need to cover a long way ahead.

(Areeb Uddin Ahmed is an advocate based in Delhi, he writes on various legal issues and tweets at @Areebuddin14)