Probing into the Freedoms of Queer Liberation in India

There was much celebration that followed the judgment of the Supreme Court in the case of Navtej Singh Johar and Others v Union of India (2018), which read down the infamous Section 377 of the Indian Penal Code (IPC). The decision, which held that consensual sexual relations between two members of the same sex could not be considered criminal, was hailed as a step forward for LGBTIQ+(lesbian, gay, bisexual, transgender, intersex, and queer/questioning individuals) rights. It also garnered high praise for its reliance on the concept of constitutional morality, rather than social morality, and for offering a ray of hope to minoritised groups at a time when the health of the Indian democracy, almost never in the best of strength, has been severely under threat from a majoritarian government that seems to be actively undermining the rule of law in the state.

This article suggests that as much as the reading down of Section 377 should be celebrated, the reception of this decision should have been more circumspect, since there is much in the decision that offers reasons for concern. Rather than making a rupture with the contemporary majoritarian political climate, the decision is, in fact, a continuation of a longer nationalist project aimed at consolidating the ideal citizen subject of the Indian nation state. While the recourse to constitutional morality in the judgment is laudable, the way in which it is used suggests that the Court has not fully appreciated what this might mean, and the decision in fact engaged in nation-building, rather than buttressing the rights of citizens. Further, rather than attending to the various kinds of citizens in the polity, what the Court did was to privilege the rights of upper-caste, upper-class citizens, even as both the petitioners and the Court rode on, and appropriated, the violence suffered by lower-class and lower-caste queer citizens.