JOIN USTwo significant decisions by the judiciary in February of 2021 indicated the continuing shift in the judicial perception of LGBT rights ever since the Supreme Court decriminalisation in 2018 in the Navtej Singh Johar decision. On February 2, the Allahabad High Court ordered the reinstatement of an officer with the Home Guards who was dismissed because as the court puts it, ‘some video of the petitioner was made viral by someone.’
The court concludes that the reasons for the action by the superior officer were the ‘perception of the officer’ that ‘sexual orientation of the petitioner is indulgence in untoward activity’. This according to the court is in violation of the observations of the Apex Court in Navtej Singh Johar vs Union of India. The Allahabad High Court went on to note that the Supreme Court had held that ‘any display of affection amongst the members of the LGBT community towards their partners in public, so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception.’
On February 4, 2021, the Delhi High Court in a petition asking for the protection of two young girls in a relationship with each other from the threats of the family members of one of them, ensured that the state gave the ‘mobile numbers of the Beat Staff, Division Staff as also the SHO’ to the two girls so that they could ‘contact them in case of any problem’. Both these decisions follow similar decisions by the Orissa and Kerala High Court indicating the effect of Navtej Singh Johar as precedent. Navtej is not just a decision that expresses fine sentiments but is actually changing attitudes and behaviours at the lower court level. The reason for the success of Navtej is that the decision was widely amplified by the media and this has a vital role to play in ensuring that there was no ignorance of the law.
In Navtej Singh Johar, J Nariman recognised the role of the media, when he ordered that, the ‘Union of India’ should ‘ensure that this judgement is given wide publicity’ using television, radio, print and online media at regular intervals,’ as well as ‘initiate programmes with ‘police officials, and other officers’ to ‘reduce stigma’. While the judiciary has begun to play its role in fighting homophobia and transphobia, unfortunately, the Union of India has not implemented the directives of Navtej Singh Johar and chosen to remain silent in the face of fundamental rights’ violations of LBGTI persons.
(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)