With the passing of the landmark judgment Navtej Johar vs Union of India in the year 2018, a landmark change happened in the Indian society when an archaic provision of section 377 of the Indian penal Code, which criminalized same-sex as unnatural, was decriminalized by the law books. The law may appear to be facially neutral, as it appears to criminalize certain sexual acts, irrespective of the perpetrator, but past judgments have betrayed disapproval for specific communities, particularly those who identify as lesbian, gay, transsexual, bisexual, intersex, queer, or any other non-normative sexual identity. The judicial expansion of the scope of the provision and an increasing inclination towards criminalization of the ‘unnatural’ which targeted specific communities led to the emergence of a counter-movement. This movement championed the cause of the LGBTIQ+ community, through publications, activism, marches, discursive accounts from the community, legal literature, as well as legal and political reform.
There is unanimity that the Navtej decision is historical, but quite importantly, several strides have been made by this decision for the possibility of advocating for further rights of marginalized sexual identities. Provisions criminalizing sexual intercourse ‘against the order of nature’ occur repeatedly as such in the statutes of seventy-odd countries, of which thirty-eight are erstwhile British colonies. They claimed that the law was intended to reflect public Indian morality which did not recognize the multiplicity of sexualities, alleged to be alien to this sub-continent prior to its colonization. However, the decision in Navtej judicially recognizes the truth in the Indian historicization of queer people, particularly Justice Chandrachud’s judgment, and further moves towards constitutional morality.
However, despite the passing of the landmark judgment, the marginalized community still has not achieved the kind of equality and acceptance that was being demanded in the first place. They continue to be seen as some kind of out-of-this-world creatures and become a part of ridicule. The judgment ordered the government to publish the judgment as much as possible but nothing concrete has been done in that regard. The community continued to be harassed. For a revolutionary change, we have to educate our society about this new concept and teach them that morality cannot be always gauged on past facts. It changes with time.