The Emperor of All Actualities: S.377 Jurisprudence in Comparative Context

Abstract

Navtej Singh Johar v. Union of India revolutionized, contemporized, and revitalized our Equality jurisprudence. In this essay, I argue that Supreme Court’s jurisprudence culminating in Navtej is best understood as one in a long line of cases leading us to an expanded notion of equality (Articles 14 and 15) in the context of a gradual and ongoing judicial acceptance of academic scholarship on a global theory of sexual sovereignty. I address the history behind S. 377 including colonial history, early jurisprudence, attempts at repeal, the High Court decision in Naz Foundation, the reversal in Koushal, and the intermediary steps of NALSA and Puttaswamy leading to redemption in Navtej. I also examine the Indian Supreme Court’s changing attitudes towards comparative constitutionalism with a special emphasis on foreign law, examining the global theory and comparing Navtej with its parallel in Lawrence v. Texas with a focus on Spatial Privacy, Deliberative Autonomy, and Expressive Liberty. I further examine the constitutionality of S. 377 in a neutral manner while considering parallels with Lawrence, noticing how a utopian reading of Lawrence maps perfectly onto the singular approach in Naz and the various approaches in Navtej. I also note the most distinct contributions to our jurisprudence made by the bench in Navtej. In doing so, I examine the changes in our Article 14 and Article 15 jurisprudences, our Right to Privacy jurisprudence emanating from Article 21, and the varying judicial attitudes that lead to such changes. I conclude with a note on the importance of clear rule-making, clarity, consistency, and respect for the separation of powers in judicial analysis.