Rainbow victory
2018
IN a historic judgment in 2018, a five-judge Supreme Court bench struck down Section 377 of the Indian Penal Code in Navtej Johar vs Union of India, 2018.
In the long-drawn battle for decriminalisation of homosexuality, the Indian courts usually took one step forward and two steps backward. The Delhi High Court had decriminalised homosexuality for the first time in 2009 in Naz Foundation vs Government of NCT Delhi, only for the Supreme Court to recriminalise it in Suresh Kumar Koushal vs Union of India, 2013. The Supreme Court bench that heard the case in 2018 read down the section to the extent that it decriminalised consensual sex among adults of the same sex. The bench comprised the outgoing Chief Justice of India Dipak Misra, Justice A.M.
Khanwilkar, Justice D.Y. Chandrachud, Justice Rohinton Fali Nariman and Justice Indu Malhotra. While the decision of the bench was unanimous, four concurring judgments were delivered, each laying out its own philosophy, logic, historical context, constitutional theory and practice.
CJI Dipak Misra and Justice A.M. Khanwilkar’s judgment quoted the German poet Arthur Schopenhauer: “I am what I am, so take me as I am.”
Justice Chandrachud began his judgment with a Leonard Cohen song and said: “Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time.”
In each of the judgments, the judges placed emphasis on the dignity and choice of individuals. Taken together, they read like a charter for the rights of the LGBTQ+ community. However, four years after the momentous judgment, the situation on the ground is far from rosy. But attitudes do not change in a day and it is perhaps too much to expect a judgment to transform homophobic societal attitudes cemented over centuries into empathy overnight. But the increasing visibility of the gay community will hopefully change minds and perspectives in due course.