INTRODUCTION
When the Supreme Court of India read down Section 377 of the Indian Penal Code in Navtej Singh Johar v. Union of India[1], it was hailed across the country as a milestone moment—a rainbow breaking through centuries of colonial darkness. But since then, in the years that have passed, this great judgment has itself come to be regarded not as the culmination of queer liberation, but as the threshold to a deeper and more nuanced struggle: the struggle for acknowledgement, for rights, and representation beyond decriminalisation.
The Indian queer movement, on both streets and courts, has never been just about law. It is about dignity, autonomy, and the right to live and love without fear. But legal advance has often been uneven, reactive, and tentative, nervously marking time between constitutional morality and social conservatism. This blog is critical of the legal history of the LGBTQ+ movement in India, writing not only of the victories but the silences and defeats that are present in the very words of the law.
NAVTEJ SINGH JOHAR: A LANDMARK WITH LIMITATIONS
Following the Navtej Singh Johar judgment by a Constitution Bench of five judges, which struck down sections of Section 377 IPC criminalising consensual sex between adults of the same sex, though the judgment was one in spirit, each of the five judges wrote a separate opinion, which was replete with constitutional philosophy, literature, and emotion. Justice Chandrachud’s point about “our Constitution is a living document” struck a chord, and Justice Indu Malhotra’s now-famous statement that “history owes an apology to members of the LGBT community” became a rallying call.
But a closer look at the Navtej case uncovers a caution that undercuts its seeming radicalism. The judgment conclusively limits itself to decriminalisation, scrupulously eschewing controversial issues such as same-sex marriage, adoption, or anti-discrimination obligations. The Court does not impose any affirmative obligations on the State to safeguard queer individuals from violence, stigma, or discrimination. It was a moral pronouncement and not a directive. This, perhaps, is the most profound criticism of Navtej: its triumph hides its shortfall. In asserting to defend “constitutional morality,” the Court avoids structural problems such as caste, class, religion, and gender identity that overlap with queer marginalisation. In addition, the judgment is glaringly quiet on the State’s active role in promoting queerphobia through institutions such as the police, medical facilities, and educational institutions.
CONSTITUTIONAL MORALITY V. SOCIAL MORALITY: A PROGRESSIVE SHIELD?
The Court in Navtej relied heavily on the aspect of constitutional morality, as previously explained in Government of NCT of Delhi v. Union of India[2] and Shafin Jahan v. Asokan K.M.[3]. Justice Chandrachud separated the fleeting morality of society from the abiding morality in the Constitution. This was employed as a defence against majoritarian values—an extremely useful instrument in a democracy where “the tyranny of the majority” can so frequently overwhelm marginalised groups.
Yet, constitutional morality is a fluid and imprecise notion in Indian law. Who determines this morality? Can it be applied uniformly to cases? In Suresh Kumar Koushal v. Naz Foundation[4], the Supreme Court relied on social morality to affirm Section 377, noting that the “LGBT population forms a tiny percentage. “Barely five years later, in Navtej, the same Court overrules itself on behalf of constitutional morality. Such inconsistency highlights the subjective malleability of judicial reasoning and raises the disquieting possibility of backsliding.
FROM DECRIMINALISATION TO RECOGNITION: THE MISSING RIGHTS
Though Navtej secured decriminalisation, it had not accorded positive rights to LGBTQ+ persons. In National Legal Services Authority (NALSA) v. Union of India[5], the Supreme Court declared the right to self-identify as male, female, or transgender, proclaiming that gender identity is inherent to one’s dignity. Such a momentous judgment preceded Navtej and established the groundwork for a more expansive reading of Articles 14, 15, 19, and 21.
However, the effect of NALSA was undermined by the Transgender Persons (Protection of Rights) Act, 2019, which, while pretending to be progressive, has been severely criticised by the queer community. The Act asks a trans individual to approach a District Magistrate to obtain certification, essentially placing their identity in the hands of a bureaucrat. Additionally, the Act does not provide for self-determination of gender identity to males who wish to transition to females or vice versa in the absence of a medical procedure. This goes against the very essence of NALSA. The Indian State’s engagement with queer rights is both tokenistic and paternalistic. The rights are provided, not as rights, but as concessions. It is visibility without power and inclusion without change. The queer subject is only visible when it aligns itself with middle-class respectability politics—monogamous, urban, cisgender.
THE REALITY ON THE GROUND
Legal triumphs such as Navtej and NALSA mean very little when police brutality, domestic violence, conversion therapy, and social ostracism continue to be widespread. India does not have a single overarching anti-discrimination law that covers people based on sexual orientation or gender identity at school, in the workplace, in housing, and healthcare.
Even in the wake of Navtej, there have been reports of LGBTQ+ persons being harassed under other laws, such as Section 294 (obscenity), or of consenting couples being broken up by families with the police’s active collusion. Legal recognition and cultural acceptance do not go hand in hand, particularly in rural and semi-urban areas. The legal framework works within and not above society. The idea that laws can liberate queer individuals is utopian. It requires structural change, starting with universal sexuality education, police reform, health training, and housing policy that addresses queer vulnerabilities.
SAME-SEX MARRIAGE: THE DEFERRED DREAM
In Supriyo v. Union of India[6], a Constitution Bench of the Supreme Court considered a batch of petitions to recognise same-sex marriage under different civil marriage laws such as the Special Marriage Act, 1954. The ruling protected the dignity of queer people and their freedom to live together, but it did not provide them with any marriage rights. The Court referred to parliamentary sovereignty and separation of powers, asserting that such recognition has to be through legislation and not judicial interpretation.
The Supriyo judgment constitutes a retreat by the judiciary from its previous activist approach. The Court agreed with “queer companionship,” but it didn’t want to change the way the law works now or urge the State to make changes to the law. This is a considerable deviation from previous constitutional judgments such as Vishaka v. State of Rajasthan[7] or Joseph Shine v. Union of India[8], where the judiciary intervened in order to plug legislative gaps. By declining to legalise same-sex marriage, the Court de facto upheld the heteronormative purity of marriage. It regarded queer affection as acceptable in the domestic sphere but not deserving of legal approval in the public sphere of rights and entitlements—inheritance, adoption, pension, etc.
A COMPARATIVE PERSPECTIVE
South Africa, Canada, and the United States have transitioned from decriminalisation to complete legal equality for LGBTQ+ citizens, to include marriage and adoption rights. South Africa’s Constitutional Court, in National Coalition for Gay and Lesbian Equality v. Minister of Justice[9], not only invalidated sodomy laws but also demanded full anti-discrimination protection. India’s courts have been hesitant to be so bold. The claim that India is “not ready” for this advancement is paternalistic as well as empirically unfounded. Public opinion in favour of queer rights is increasing, particularly among young people. Most importantly, constitutional rights cannot be decided by popular referendum.
THE POLITICS OF QUEER LIBERATION
It would also be misguided to consider queer justice strictly in the context of courtrooms and legislation. In the words of queer scholar Arvind Narrain, “Legal victories have to be translated into lived realities. “This entails a complete revision in how we conceptualise families, love, intimacy, and citizenship. The home remains the most violent space for too many queer people in India, where “honour” is called upon to defend conversion therapy, violence, or marital rape. Schools still enable silence on sexuality. Workplaces are insensitive. The police too often act above the law. The law, then, can be only one tool among many in a wider, intersectional battle.
If queer rights in India are to be really revolutionary, the agenda has to shift away from legal recognition and towards substantive justice. This would involve anti-discrimination legislation that specifically addresses sexual orientation and gender identity in all sectors, marriage equality not only as a symbolic victory, but as an entry point for material advantages—adoption, surrogacy, shared property, etc, the banishment of conversion therapy, honour-based violence, and police harassment through legal and bureaucratic reforms, queer insights integrated in school curricula, public health policy, and media representation, and affirmative action and reservation of transgender individuals in education and employment.
In Navtej, the Supreme Court vowed a “new era of inclusion.” But inclusion without change is assimilation. What queer people in India are calling for is not a seat at the table but the agency to remake the table itself. The Constitution is not a fixed text; it is a field of struggle. And queer rights in India will continue to be battled not only in the courts, but in classrooms, homes, streets, and workplaces. The rainbow has broken out—but justice, like the horizon, is an elusive target.
Author(s) Name: Ritisha Roychaudhuri (National Law University, Tripura)
References:
[1] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[2] Government of NCT of Delhi v Union of India (2018) 8 SCC 501 (SC)
[3] Shafin Jahan v Asokan KM (2018) 16 SCC 368 (SC)
[4] Suresh Kumar Koushal v Naz Foundation (2013) 1 SCC 1 (SC)
[5] National Legal Services Authority v Union of India (2014) 5 SCC 438 (SC)
[6] Supriyo v Union of India (2023) SCC OnLine SC 1275
[7] Vishaka v State of Rajasthan (1997) 6 SCC 241 (SC)
[8] Joseph Shine v Union of India (2018) 2 SCC 189 (SC)
[9] National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) 12 BCLR 1517 (CC) (South Africa)
