On September 6, 2018, exactly four years ago, in Navtej Singh Johar and Ors v Union of India, a five-judge constitution bench of the Supreme Court, in a beautifully elaborate decision, liberated LGBTQI Indians from the darkness of Section 377 of the Indian Penal Code, 1860. I say elaborate since the court was very clear that the decision was not only about decriminalisation of same-sex relations but recognised that the gamut of rights that accrue to all Indian citizens under the Constitution apply with equal force to LGBTQI citizens.
In Johar, Justice Dhananjaya Chandrachud held that members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights, including the liberties protected by the Constitution. He further declared 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. And finally, that members of the LGBTQI community are entitled to the benefits of an equal citizenship, without discrimination, to equal protection of the law and the decision in Koushal stands overruled.
A constitutional court needs to be elaborate when it is erasing the 150-year-old reign of bigotry emanating from Section 377 of a penal code adopted in 1860. In Johar, Justice Rohinton Nariman captures this long and dark history of oppression in his discussion of the history of the criminalisation of homosexuality. This bigotry was compounded by a two-judge bench of the Supreme Court in Suresh Kumar Koushal v Union of India (2013) which discussed the “so called rights” of the queer community. The music-loving judge knew that the notes of Indian constitutionalism, whose foundations are rooted in equality and liberty, have a tradition of expanding freedom, not contracting it for any section of Indian society. But even the most magical of orchestras will occasionally need an out-of-tune musician corrected.
Five of the nine judges in Puttaswamy took issue with Koushal. Justice Sanjay Kaul, while expressing disapproval of Koushal, writes that sexual orientation was an attribute of privacy. As Justice Chandrachud writes, Koushal along with ADM Jabalpur were “discordant notes” of Indian constitutionalism.
The journey of reclaiming constitutional rights of the millions of LGBT citizens in India has begun. The judicial change post-Johar was almost immediate, when a steady stream of high court decisions protecting same-sex couples came flowing down. Justice in full flow is like the heavens opening and the rains coming down after a particularly long and hot summer. These verdicts from our high courts include Madhu Bala v State of Uttarakhand (2020) making clear that the right of a same sex couple to live together is a constitutional and human right. Soon after, in Vanitaben Damjibhai Solanki v State of Gujarat (2020) the Gujarat High Court ordered police protection for two women police constables in a relationship. The couple were being threatened by their families who vehemently opposed their relationship.
Next, in Pramod Kumar Sharma v State of UP (2021), the Allahabad High Court directed the reinstatement to service of a Home Guard whose appointment had been cancelled due to a video documenting him displaying affection to his same-sex partner. Imagine a situation when holding your partner’s hand or giving her/him a peck on the cheek leads to termination of your employment. The Allahabad High Court, while ordering the reinstatement, relied on Navtej Singh Johar and held that the display of affection amongst members of the LGBTQI community cannot be bogged down by any apparent disapproval by the majority.
Finally, in S Sushma v Commissioner of Police (2021), that concerned two young women in a relationship, the Madras High Court displays judicial sensitivity by acknowledging the need to change a judge’s own assumptions. Justice N Anand Venkatesh writes that when confronted with this case, he first made sure he met with members of the LGBT community to understand the “ground realities, the emotions, social discrimination and exclusion… faced by the community.” After such meetings, the judge notes “that I must frankly confess that the petitioners… (and others) became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance).”
In this ongoing case, the judge protects the couple in question and makes sure that both sets of parents are taken along in this journey. The case has led to the National Medical Commission issuing directions that doctors practising conversion therapy to “cure” queer citizens will amount to professional misconduct under the Indian Medical Councils Rules. The court has also asked the state to provide training for teachers to consider the needs of queer students. This is a momentous decision not only in India but also globally.
In Johar, Justice Chandrachud perceptively wrote that the “Supreme Court cannot afford to denude itself of its leadership as an institution expounding constitutional values. Any loss of its authority will imperil democracy itself.” Such leadership is displayed when the Supreme Court, speaking through Justice Chandrachud in Deepika Singh v the Central Administrative Tribunal (2022), was confronted by an archaic notion of the family. A government employee who married her partner, a widower with two children, was denied maternity leave for their third child (her first biological child) since she took leave to care for her “step”-children. According to the rules, she was entitled to 730 days of leave to take care of “upto two children”.
In Deepika Singh, the Supreme Court manifested its leadership in recognising the realities of Indian families — that it is not a “single unchanging unit with a mother and a father (who remain constant over time) and their children”. As the court pointed out, “familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household or the guardians within the family may change with remarriage, adoption or fostering.” Justice Chandrachud further writes “these manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones.”
Deepika Singh is a momentous decision for it captures the realities of the many forms that comprise a family. Realities that have always been recognised by our communities, only not by the black letter of law that often lags far behind the lived realities of life. Johar elaborates the constitutional journey from the closet to the sunshine outside. In a country like ours where family is the fulcrum around which most of us organise our lives, the post Johar journey must be to legally recognise our unions, our children and protect the families we have made.
Justice Chandrachud, speaking on the fourth anniversary of Johar and the journey ahead, while quoting the Beatles classic “All you need is love”, notes that “simply love is not enough”. Rights are necessary. Hence, we look to our Court to display leadership again — to grant us our full rights as citizens. As Bob Dylan wrote “For the times they are a-changin’”.
The writer is a Senior Advocate at the Supreme Court
In its 2018 judgment, the Supreme Court was very clear that the decision was not only about decriminalisation of same-sex relations but recognised that the gamut of rights that accrue to all Indian citizens under the Constitution apply with equal force to LGBTQI citizens. (Express Photo: Partha Paul, File) 
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