In 2009, the High Court of Delhi handed down a landmark judgment in Naz Foundation v NCT of Delhi. It read down Section 377 of the Indian Penal Code, which criminalized “carnal intercourse against the order of nature”, to exclude same-sex relations between adults in private – effectively decriminalizing homosexuality. Four years later, however, the Supreme Court reversed this decision (Koushal v Naz Foundation), and in a major setback to civil rights in general, and to LGBT rights specifically, recriminalised same-sex relations.
Under the rules of the Indian Supreme Court, even a final judgment can be reviewed under exceptional circumstances (“the curative process”). While this review was in progress, however, something entirely unexpected happened. In an unrelated judgment delivered in August 2017, while deciding the question of whether the Indian Constitution recognised a fundamental right to privacy, a nine-judge bench of the Supreme Court singled out Koushal v Naz Foundation as one of the two grave mistakes of its history (the other was an Emergency-era judgment denying the right of habeas corpus), and stated in clear terms that the Constitution protected the rights of the LGBT community.
A year before the right to privacy judgment, a group of individuals had filed petitions before the Supreme Court arguing that S. 377 violated their rights under the Constitution (Navtej Johar v Union of India). The crucial difference between Naz Foundation and Navtej Johar was that the former had been argued as a “public interest litigation” (Naz Foundation is itself an NGO, and brought the case in a representative capacity, under the relaxed rules of standing that are part of India’s PIL jurisprudence), while the latter was a petition filed by affected individuals in their personal capacity. Navtej Johar and his companions argued, therefore, that their case was on a different footing from Naz Foundation, and ought to be considered on its own terms.
The Supreme Court’s right to privacy judgment brought the Navtej Johar petition – which had been put into cold storage by the Court when it was filed – to the forefront. In January 2018, the case was listed for hearing before a five-judge bench of the Court, and it finally came to be argued in July 2018. Importantly, because Navtej Johar was a fresh petition, the entire issue about the constitutional validity of Section 377 could be argued afresh, no longer bound by the narrow scope of the Court’s review procedure.
The Navtej Johar proceedings were very different from the previous round before the Supreme Court. Early on, the Union of India informed the Court that it would not defend Section 377, and would leave the decision to “the wisdom of the Court.” The opposition came from an assortment of Christian religious groups, and some of the individuals who had appealed the Delhi High Court’s judgment and won in the Supreme Court in the previous round. The major difference, however, was the Court’s clear statement in the right to privacy judgment, which provided strong – and virtually irrefutable support – to the Petitioners’ case against Section 377.
For this reason, while the Petitioners did argue that Section 377 violated Article 14 (equal protection of laws), 15(1)(non-discrimination on grounds of sex), 19(1)(a) (freedom of speech and expression), and 21 (right to life and persona liberty), the focus of the case soon moved elsewhere. Counsel for the Petitioners argued, in addition, that this was a case where mere decriminalization would not be enough. The stigma and the deprivation caused by a century-and-a-half of being treated as “unconvicted felons” (first by the colonial British, and then by the independent Indian state) could not be wiped out simply by ruling that same-sex relations were no longer a crime. The Court, therefore, was urged to go further: to author not just a decriminalisation judgment, but a civil rights judgment. The Court was asked to declare that the LGBT community must be treated with equality, both by the State, and by non-State actors, and that no individual could be denied access to healthcare, education, or any other service on grounds of their sexual orientation.
When the judgment of the Supreme Court comes out, therefore, there are two things to watch out for. The first is the constitutional bases upon which the Court will rest its judgment: whether the Court chooses to decriminalize same-sex relations on the ground of privacy, or on a strong reading of the equal protection clause that prohibits disadvantaging individuals on the basis of their personal characteristics, or by reading “sexual orientation” into the word “sex” in the non-discrimination clause, or in a combination of all of these, it will be important for the direction of civil rights law in the future. And the second is how far the Court will choose to go: will it content itself with decriminalisation, and leave the rest to a future day and a future dispute? Or will it issue a broader declaration that affirms and protects the civil rights of the LGBT community? Time will tell.