In the present case, the Bombay High Court has correctly settled the proposition that an extramarital consensual gay relationship is not a criminal offence; just like how it is no more a criminal offence in case of a heterosexual spouses. However, such a relationship comes under the purview of “adultery” as a ground for divorce (civil wrong). The Bombay HC judgment signifies the social acceptance of homosexuality as human nature, and it is a step closer to recognising gender equality and different sexual orientations.
Now that the Section 377, IPC has been read down, the conservative communal elements are targeting sexual minorities by resorting to cunning ways to reinforce regressive social morality over constitutional morality. The Navtej judgment might be a positive and much required step forward, however there are laws like the Beggary Acts of different States, Section 36A of Karnataka Police Act, 1963, which still has the potential to victimise trans-women, and Karnataka Dramatic Performances Act, 1964, which gives immense power to State machineries.
The Union Government has not yet implemented the directions issued by the Supreme Court of India that required the Central Government to give wide-scale publicity to the Supreme Court judgment in Navtej Singh Johar v. Union of India.
Sridhar Rangayan’s Breaking Free (2015) is a 90-minute documentary on the LGBTQI movement in India until the great heartbreak of the 2013 Supreme Court judgment. Much like the four-part SC judgments, it explores the link between sexuality and love, questions of identity that the LGBTQI peoples have faced, the systemic abuses from family members, society as well as law enforcement agencies, while celebrating the collective will of the people who kept the faith.
Throughout the judgement, the Indian Supreme Court makes a distinction between ‘social’ or ‘majoritarian’ morality and ‘constitutional’ morality. Applying this distinction to the case at hand, the court rejects homophobia and popular sentiments that marginalise and discriminate against those who go against heteronormativity. This judgment has great resonance in Sri Lanka, where at present LGBTQI activists are agitating to strike Section 365 and 365a from the Penal Code, which is akin to Section 377 of IPC.
One of the most fierce and vociferous opposition to LGBTQ+ rights has come from religious lobbies — be it the evangelical Christians in the USA running gay conversion therapy camps, or Baba Ramdev claiming that he can “cure” homosexuality through yoga, or the All India Muslim Personal Law Board. But the premise of human rights and liberty cannot be somebody else’s right to religion.
In a judgment running into 493 pages, with four concurrent opinions from Chief Justice Dipak Mishra (who also wrote on behalf of Justice AM Khanwilkar) as well as Justices Rohinton Nariman, DY Chandrachud, and Indu Malhotra, the Supreme Court unequivocally upheld the constitutional rights of equality, non-discrimination, freedom of expression, privacy, autonomy, dignity, and health of LGBT persons guaranteed under Articles 14, 15, 19, and 21 of the Constitution. The arc of justice and freedom has finally come home, into the lives of LGBT persons, into the law, and hopefully will soon penetrate to their families, work spaces, public places, and in private domains.
The judgment holds that Section 377, to the extent it criminalises sexual acts between consenting adults in private is in violation of Articles 14 and 15 (equality and discrimination); Article 19 (Fundamnetal Freedoms) and Article 21 (privacy and dignity). Very importantly, the judgment notes that it is not the popular morality but constitutional morality which will would prevail. And constitutional morality includes the values enshrined in the Preamble.
Section 377, as observed by the Supreme Court in its judgment on September 6, 2018, is, “irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.” While the outcome of this was a somewhat foregone conclusion, this forward-looking development, is bound to raise other significant issues.
As Section 377 is read down today, we must not forget that ABVA filed the first writ petition to challenge the constitutional validity of Section 377 before Delhi High Court. The petition was dismissed in 1999 for non-prosecution just before Naz Foundation filed its petition in 2001.. On July 2, 2009 the Delhi High Court pronounced its historic judgment by declaring Section 377 unconstitutional, but it was overturned on December 11, 2013 by the Supreme Court on appeals filed by religious and cultural organisations. Today, the Supreme Court course-corrected again.