Section 377 verdict: Navtej Johar vs Union of India opens doors for broader rights for the LGBTQ community

After a prolonged battle marked by ups and downs, the LGBTQ community welcomed the Supreme Court’s judgment in Navtej Johar vs Union of India, where it declared Section 377 violative of the Constitution to the extent that it criminalised consensual sex between adults of the same gender. While Section 377 continues to remain on our statute book, it now applies only in cases of bestiality and rape, thus being stripped of its original draconian nature.

And while one can legitimately argue that this judgment was long due and the court simply performed its function as the protector of rights, one can’t take away from the fact that Navtej Johar is more than just a judgment on Section 377. For the LGBTQ community, it is narrative seeped in empathy and an opportunity to push for the realisation of a broader range of rights.

A narrative of empathy

At the end of Navtej Johar, the court profoundly declared that “history owes an apology to the members of the [LGBTQ] community”. It repeatedly acknowledged the shame, persecution, and systemic exclusion that LGBTQ community members have had to face, an oppression legally legitimised by Section 377. Further, beyond the constitutional right to equality, liberty, dignity, health and privacy, it recognised and affirmed the human right to love without shame or fear.

Representational image. AP

At no point did the court’s tryst with technicalities of the law override its recognition that at the end of the day, the LGBTQ story is a deeply human one. An illustration of this is the court’s analysis of the constitutional shortcomings of its 2014 judgment in Suresh Koushal, where it re-criminalised the LGBTQ identity.

One of the biggest flaws of Koushal lay in its application of the “reasonable classification” test of Article 14. While Article 14 guarantees equality before the law and prohibits discrimination, it permits reasonable classification by the law. However, one must demonstrate that such classification is made on the basis of intelligible differentia, and the differentia has a rational nexus with the objective of the law.

In Koushal, the court viewed those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the “ordinary course of nature” as different classes of people, with the latter falling within the purview of Section 377. It declared that such classification does not violate Article 14 and, as opposed to what is being argued, Section 377 being gender neutral criminalises an activity and not an identity.

However, it failed to explain the difference between the classes and reason for treating the two classes differently. It further added insult to injury by observing that the LGBTQ persons constitute a minuscule fraction of the country, and mere 200 prosecutions under Section 377 is not sufficient reason to declare it unconstitutional. This cut and dry, and deeply flawed application of the test of reasonable classification is enabled by the invisibilisation of the the stories of persecution of LGBTQ persons at the hands of Section 377.

In stark contrast, Navtej Johar, while criticising Koushal for its flawed analysis, called out its formalistic and de-humaninsing approach in carrying out the reasonable classification test. In this context, it noted the limitations of legal formalism which often values form over substance and warns against its ability to overshadow the powerful statement of values the Constitution imbibes. The undertone of these observations comes from the recognition that one of the primary functions of the Constitution is the protection of individual rights, and technical application of legal tests can’t come at the cost of the humanity of people.

Beyond Section 377

While there are four concurring opinions in the Navtej Johar judgment, one opinion stands out in particular. Justice Chandrachud, in his opinion, while recognising that the matter in reference is to rule on the correctness of Koushal,  went beyond merely declaring Section 377 partly unconstitutional. He remarked on how countries around the world have gone beyond decriminalising sodomy laws and ensure that LGBTQ persons have a right to full citizenship, the right to form unions and a right to family life.

He went on to note that the right to sexual orientation imposes both negative and positive obligations on the state, ie, not to discriminate as well as to recognise rights that bring true fulfillment to same-sex relationships. In the context of India, he spoke extensively of the role of constitutional morality, ie, morality dictated by the values of the Constitution as opposed to majoritarian social norms, in ensuring justice. He declared that constitutional morality is intrinsic to ensuring equality for LGBTQ persons, triumphs over tradition and culture, and is the pillar against which all laws that deprive LGBTQ persons of their entitlement to a full and equal citizenship will be judged.

In light of this, one may argue that marriage and other civil laws which continue to be heteronormative in nature may not withstand constitutional scrutiny. These laws continue to indirectly discriminate against LGBTQ persons by denying them access to civil institutions, thereby depriving them equal moral citizenship. The judgment further attempts to address structural issues by recognising the obligation of the State and the medical fraternity to sensitise the government and police, and ensure medical and counselling practices keep up with changing social norms, respectively. It is only a matter of time before we witness the judgment being deployed for making a claim for access to civil rights and equal moral citizenship.

The future post Navtej Johar

While the fight for equality is still a long-drawn and difficult one, and needs to go beyond the realm of the law to tackle larger structural issues such as the widespread patriarchal norms that continue to govern our lives, Navtej Johar, by affirming our identity, has deep symbolic significance. It has opened doors for the LGBTQ community to push for further legal reform and is the basis on which we can make claims of the State and society.  However, before we are back on the streets and in courts, I think we deserve a moment to breathe and embrace what it finally means to be seen as people.

Namrata Mukherjee is a Research Fellow at the Vidhi Centre for Legal Policy. Views expressed are personal.