Navtej Singh Johar v Union of India: decriminalising India’s sodomy law

Abstract

ABSTRACT This article gives the readers a brief description of the strides the Supreme Court of India has taken in terms of gender justice, and particularly queer justice. It provides an account of the recent decision of the Court in Navtej Singh Johar v. Union of India (‘Navtej’). In Navtej, the Court read down section 377 of the Indian Penal Code, 1860 which criminalised ‘carnal intercourse against the order of nature’. This article will shed light on how the Court is now keen to analyse the substantive effects a law has on the people affected rather than merely following a formalistic approach. Furthermore, it argues that in Navtej, the Court has recognised the right to sexual orientation in dignity rather privacy. By doing so, the Court has completely side-stepped the criticism that the Supreme Court of the United States had to face in the aftermath of Lawrence v. Texas. This article further examines the nature of decriminalisation of section 377 undertaken in Navtej. It argues that in the absence of a gender-neutral rape legislation in India, the Navtej court deemed it fit to let section 377 govern non-consensual sexual acts of carnal intercourse.