By RightsViews Staff Writer Sydney Smith
On March 10 2022, SOGI rights researcher and activist Ajita Banerjie (she/they) spoke about the legacy of the landmark Supreme Court of India decision, Navtej Singh Johar v. Union of India. On September 6, 2018, in a unanimous decision by the court, Section 377 of the Indian Penal Code (1860), which criminalized unnatural sex between two individuals, was considered unconstitutional on the grounds that it violated the rights to expression, equality, privacy, and human dignity.
Banerjie details three reasons why this judgment is unique. First, the judgement not only decriminalized same sex acts, but went above and beyond to recognize LGBTQIA+ members as equal rights-holding citizens who deserve a life free of persecution. Second, the judgment offered an expansive interpretation of the right to privacy. The court recognized Section 377’s unreasonable restriction on privacy and freedom of choice. Additionally, privacy was no longer only relevant in the private sphere; rather, the court recognized social privacy and decisional privacy in the public sphere (e.g., displays of affection). Third, this judgment for the first time emphasized the right to love. Uniquely in this case, the right to love was seen as an integral aspect of human dignity. As Banerjie noted,“denying humans the right to love would be profoundly cruel and inhuman.” The judgment highlighted Vikran Seth’s poem, “Through Love’s Great Power”,to further address the right to love and label Section 377 as the “true unnatural crime.”
This case relied heavily on testimonies and affidavits from LGBTQIA+ people from all walks of life, rather than LGBTQIA+ organizations and their representatives more broadly. The compelling stories, which were expansively covered in the media, allowed individuals to demand their rights publicly and likely influenced the judges decision. Banerjie outlined three avenues that judges could have taken when this case was brought before the court. First, judges could have maintained the status quo by rejecting the claims that Section 377 violated rights to expression, equality, privacy, and dignity by arguing that these sodomy laws were rarely used to arrest people. Second, they could have affirmed the status quo by refusing to look at sodomy laws through a human rights lens and as a human rights violation. Third, they could have acknowledged that the law needed to be abolished on the basis that it was unconstitutional. With the support of incredibly compelling testimonies and affidavits, the court issued a historic judgment along with a judicial apology which acknowledged historical wrongs by the community and provided avenues for claiming civil rights.
The legacy of this case permeates on the ground across India. Banerjie emphasized the overwhelming support from not just urban queers, but also communities within smaller cities. Although these smaller communities often have less access to information, Banerjie stressed the role of local news sources in amplifying the judgment and translating it into many languages. However, even with this support, there are still sectors of society which do not recognize this judgment, most notably within police stations that continue to detain and harass LGBTQIA+ individuals.
Long term societal change is a process. Advocacy has played a pivotal role in progressing the rights of LGBTQIA+ individuals in India, with the Navtej Singh Johar decision serving as a significant step in amplifying the voices of LGBTQIA+ persons. However, LGBTQIA+ individuals still experience discrimination on a daily basis, not just in India, but across the globe. Affirming the rights of LGBTQIA+ individuals in the courts is only effective when our communities also accept these decisions and push back against long-standing, deeply ingrained ideas about sexuality and gender identity.
Ajita Banerjie (she/they) is a SOGI rights researcher and activist from India. She holds a Masters in Human Rights Law from SOAS and has worked with leading human rights organizations such as the International Commission of Jurists and Kaleidoscope Trust. Her work is focused on questions around access to justice for LGBTQI+ individuals.
Sydney is a current Human Rights Studies M.A. student at the Institute for the Study of Human Rights at Columbia University. Previously, she worked for the Peace Research Institute Oslo (PRIO), the Global Feminisms Project (GFP), and centers her research on coding mechanisms of state-perpetrated abuses, and advocates for invisible perpetrators and victims of conflict-related sexual violence.