Love After The Time Of 377
India Today|September 24, 2018
Love After The Time Of 377

The unanimous verdict of the Supreme Court’s five-judge constitutional bench in Navtej Singh Johar & Ors., decriminalising homosexuality and recognising the constitutional rights of LGBTI persons, has led to a massive outpouring of emotion and celebrations across the country and around the world.

Siddharth Narrain

Reading the four opinions together, it is clear that at the heart of the verdict lies an overwhelming endorsement of the right to personal autonomy and choice. The judges have held that this right includes the right to choose one’s partner, the right to sexual autonomy and agency, the right to love, to live one’s life with dignity, not confined just to the privacy of the home but attaching to the body of the individual and extending to public spaces.

This expansive reading of personal autonomy—and the centrality of this right to the judges’ reasoning—can be seen as an extension of the Supreme Court’s own decisions after the 2013 Koushal decision, reinstating Section 377 of the Indian Penal Code (IPC) and re-criminalising homosexuality. This string of cases includes NALSA (2014), recognising citizenship rights of the transgender community; Puttaswamy (2017), upholding the fundamental right to privacy; Shafin Jahan (2018), upholding the right to be in a relationship of one’s choice; Shayara Bano (2017), declaring that a law could be struck down as unconstitutional if it is manifestly arbitrary; Common Cause, recognising the right to a dignified death of those who have slipped into a permanent vegetative state; Shakti Vahini (2018), recognising the right to choose a life partner as a facet of individual liberty, where the court has opposed the practice of honour killings as a threat to the constitutional right to individual liberty.

Central to the judges’ exposition of the right to personal autonomy is the right to dignity, linked to the right to privacy and the right to exercise choice without fear. What is significant, and connects to the line of cases preceding this judgment, is the court’s linking of the right to dignity to the idea of fraternity. According to the judges, just as the state is bound to protect individual rights, it is equally incumbent on society to respect individual rights. Navtej Johar thus opens up further possibilities for a diverse range of situations where personal autonomy and the right to choice of individuals have been curtailed.

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September 24, 2018