As India celebrates the 5th anniversary of the landmark Supreme Court ruling that read down Section 377, we look at emerging jurisprudence on the ‘right to love’ in India.
On 6th September, five years ago, a five-judge constitution bench of the Supreme Court of India decriminalized adult consensual same-sex conduct by reading down Section 377 of the Indian Penal Code. The historic judgment, in Navtej Singh Johar vs Union of India upheld the constitutional rights of LGBTI persons by reading down this archaic, colonial-era provision introduced in 1860, that criminalized “carnal intercourse against the order of nature.” The Court had reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, and that living under the constant fear of persecution deprived LGBTI individuals of their constitutional right to lead fulfilling lives and violated the constitutional guarantee of the right to life and to the equal protection of law.
In its operation, Section 377 targeted individuals based on their real or perceived sexual orientation and/or gender identity – thereby creating a class of presumptive criminals. The Court had rightly noted that the perception of criminality that is associated with LGBTI persons is very harmful and perpetuates discriminatory attitudes towards LGBTI individuals as “when everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity.” The Court was therefore instrumental in recognizing the historical and pervasive stigma experienced by LGBTI individuals and established a binding precedent on all courts across India.
One of the key aspects emerging from this historic judgment is the recognition of ‘the right to love’ with Justice Chandrachud noting that, “the right to love and to find a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under the constitutional order based on rights.” The Court relied on its previous judgment where it protected the rights of an interfaith couple in Shafin Jahan v Ashokan K.M. recognising the right to choose one’s partner – within or outside of marriage. Following the Navtej judgment, we have seen an emergence in ‘queer jurisprudence’ wherein several landmark judgments have provided protection to queer couples who have been forcibly separated by their families, and upheld their ‘right to love’ and the right of two adult persons to live together without state interference. These cases have marked a significant moment in Indian legal history when the legitimacy of queer love has been recognised and validated by a constitutional court.
The first of many such judgments was in 2018 in Sreeja S. v. The Commissioner of Police, Thiruvananthapuram where the Kerala High Court upheld the right of an adult woman to live with her “same-sex partner” without the fear of violence from her natal family or the police. Relying on Navtej, the court held that “constitutional morality cannot be martyred at the altar of social morality.” In 2020, the Uttarakhand High Court in Madhu Bala v. State of Uttarakhand noted that a consensual relationship between adult persons of the same sex is not illegal and that it is the “duty of the court to ensure that these constitutional liberties of individuals are not flouted” by the State or the society. Similarly, in Shampa Singh v The State of West Bengal, the Calcutta High Court held that “consensual cohabitation between two adults of the same sex cannot, in our understanding, be illegal, far less a crime. We are of the view that such self-determination in the matter of sexual preference or consensual intercourse, even if not procreative, is inherent for the enjoyment of life and liberty of every individual and is protected under our scheme of constitutional morality and cannot be whittled down on the concept of morality or religion of others.”
The ‘right to love’ – as noted by Justice Chandrachud in the judgment – has profound implications in a society where love across lines of caste and religion is considered deeply transgressive. Individuals are often subjected to the full force of the law when they (attempt to) assert their choice and love across lines of caste, faith, or gender. The legal respite provided to individuals traversing social moralities by constitutional courts in India has therefore acted as an antidote to the criminalisation of queer love – as well as love that transgresses boundaries of caste or faith. In this context, the ‘right to love’ – as the Court had rightly noted – is not just a separate battle for LGBT individuals but “a battle for us all.” The emerging jurisprudence on queer love has allowed us to resist social hierarchies, to challenge the carceral state and to find a language of love within the law.
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Read: LBGT+ Rights in India