Articles

In Navtej Singh Johar v. Union of India the Court read down Section 377, which criminalises “carnal inter­course against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict’s significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the aftermath. As an attempt to answer some of these questions, supplement the growing body of literature on this matter and carry forward the legacy of previous editorial boards, we have put together the present Special Issue on the Navtej Singh Johar verdict. This consolidated Special Issue of the NUJS Law Review, is a humble addition to this growing body of literature, a celebration and criticism of the judgment through its various articles, and a tribute to those who have silently but arduously undertaken the grassroots movement which brought about the decision in Navtej. Through this Issue, the NUJS Law Review and the authors hope to respond to the Courts in a manner not possible within the Courtroom.

The Supreme Court in 2018 issued a landmark judgment, wherein section 377 of the Indian Penal Code, which criminalized unnatural sex against the order of nature, was read down to the extent it criminalised sexual actions between consenting adults. The judgment marked a victory for queer politics and rights of queer persons in India, especially given the long and continued struggle leading up to it. However, more than a year since the judgement, a critical analysis of the principles upheld and the manner in which these principles have been transposed (or rather, ignored) in public policy merits equal discussion. Of importance here, is the ‘innateness’ approach to sexual orientation, which formed the foundation for the unanimous judgment passed by the bench, as this construct seeks to stabilise and essentialise queer identities. The translation of this construct into gender identity legislations such as the Transgender Persons (Protection of Rights) Act, 2019 and bills such as the Personal Data Protection Bill, 2018 is also worrying. The effect, of an ‘innateness’ approach to identity being codified into legislations, is to silo identities into neatly segregated and essentialised categories that can be easily ‘watched’ and protected as ‘data’, as opposed to individuals proclaiming and performing these identities being granted equal recognition before the law.

Public spaces are often constructed around particular notions of “appropriate” codes of conduct which exclude those who do not conform to heteronormative ideals. In India, queer persons, especially those belonging to socio-economically disadvantaged backgrounds, experience hostility in public spaces and often start avoiding those spaces altogether. Further, there are certain laws that interact with other forms of societal censure to produce a climate of oppression where safe areas, in contrast, are marked off by lack of detection and relative freedom from the law. By making queer identities invisible, it is understood that the sexual ‘others’ have no claims or lesser claims to citizenship alongside the ‘good’, law abiding, heterosexual subjects. In this sense, questions of gender and sexual identity can be seen to intertwine with those of citizenship in a number of profound ways for queer persons are often reduced to being ‘partial citizens’. This paper will look at how certain laws in India intersect with informal methods of social censure to produce a regime that has a disenfranchising impact on queer persons’ access to public spaces, and largely, their citizenship.

Prof. Robert Wintemute, first authored an article for the NUJS Law Review, back in 2011. The article titled ‘Same-sex Love and Indian Penal Code §377: An Important Human Rights Issue for India’ was published in Volume 4, No. 1 (p. 31-65), focusing on the human rights issue concerning the criminalisation of same-sex marriage under §377, was written in the aftermath of the Delhi High Court reading down the provision and advocated the affirmation by the Indian Supreme Court of the Delhi High Court’s position. The article went on to become one of the academic articles to be cited by the Supreme Court of India when it finally read down §377 in 2018. In this article, Prof. Wintemute revisits the journey of §377, outlining the key takeaways from the discussions in Navtej Singh Johar v. Union of India, the decision of the Supreme Court of India which ultimately decriminalised same-sex intercourse under §377. A version of this article has also been published as a chapter in the book titled Human Rights in India, (Satvinder S. Juss (Satvinder Singh) ed., 1st ed.) published by Routledge (2019).

The Supreme Court in recent years has evolved a vocabulary of privacy, autonomy, and constitutional morality. This has culminated in the recognition of the right to privacy and the right to choose a life partner, among several. However, in Navtej Singh Johar v. Union of India, which confirmed the decriminalisation of same-sex relations, the Supreme Court outlined the contours of the right to intimate relations in a broad manner. The article argues that the next logical step is marriage equality, or the recognition of same-sex marriage on the same footing as traditional opposite-sex marriage, and that all the jurisprudential ingredients are already present for such recognition. The article argues that the restriction of the definition of marriage to ‘one man, one woman’ constitutes impermissible sex discrimination under Articles 14 and 15 and is also manifestly arbitrary. The article also recognises that the evolving concept of constitutional morality, which trumps social or popular morality as a means to interpret public morality as a restriction on fundamental rights, may be invoked to dispel arguments that same-sex marriage intrudes on the so-called sanctity of traditional opposite-sex marriage. It further argues that ‘one man, one woman’ violates the right to privacy and autonomy, and life with dignity under Article 21, along with the freedom of expression, which includes the expression of sexual orientation and self-identified gender. The article also argues that though the personal law that applies to a person depends on their religion, personal laws are religious neither in origin nor in character; though in any case, marriage equality should not be held to violate religious freedom based on the application of the significantly eroded ‘essential religious practices’ test. Lastly, the article argues that the Hindu Marriage Act and the Special Marriage Act are capable of being interpreted as is to permit same-sex marriage.

This paper explores the extent to which Navtej advanced the equality and non-discrimination jurisprudence in India. To do so, it places Navtej besides Naz and traces the parallels and divergences between the two decisions in their interpretation of the equality and non-discrimination provisions. The paper looks at the following themes in Navtej: higher standard of review; indirect discrimination; constitutional morality; intelligibility of differentia; and, transformative constitutionalism. It is argued that while Navtej did not entirely follow Naz, it brought into the Indian jurisprudence certain crucial, independent advancements in the understanding of equality and non-discrimination

A struggle against any form of margins is a feminist struggle, and it is incontrovertible that reading down §377 of the Indian Penal Code, 1860 (‘IPC’) was an important feminist struggle. However, I argue here that §377 must be located as just one among various other struggles towards queer liberation in the history of India, and must be viewed as harmful without such a location. In this article, I lay out the hierarchies and exclusions within queer communities in the country along the lines of gender, caste, class, and religion. This is to show that the often opposing politics of these identities prevent us from constituting the ‘LGBT community’ as a singular subject of legal analysis, which the judgment of the Supreme Court in Navtej Singh Johar v. Union of India (2018) attempted to do but failed at. I argue that the judgment materially benefitted primarily gay men, while not applying to female sexuality (except symbolically), and having limited impact on the trans communities especially in the aftermath of National Legal Services Authority v. Union of India (2014). In a paradigm of limited funding and prioritised campaigning, acknowledging that funding and public discourse are among the primary ways in which many identities and lives have been made visible, I also point to possible focus areas that activist, legal and academic energies can be extended to going forward to benefit queer and trans women under the law. In keeping with the intersectional feminist understanding that if our freedoms are not interlinked, they are not freedoms at all, this paper highlights the urgent need to strengthen queer solidarities after the Navtej Singh Johar judgement.

The Supreme Court of India in Navtej Singh Johar v. Union of India (2018), read down §377 of the Indian Penal Code, 1860. I argue that in reaching this verdict, the Court furthered the use of ‘love’ in legal reasoning. It did so, first, by reaffirming its position that an adult has the autonomy to choose whom to have sexual relations with. However, this individual autonomy-centric view, I argue, cannot become the foundation for the wider recognition of LGBTQ+ rights because it views autonomy as liberty, and demands only non-interference in the individual’s private sphere. I argue that the second, and more profound, understanding of love acknowledges its transformative potential, its power to break down oppressive structures, and its role as an anchor of individual identity. This paves the way for the legal recognition of queer relationships on the one hand, and the reform of orthodox opposite- sex relationships, on the other.

NUJS Law Review, as a journal exclusively edited and managed by students, continues to be one of the leading law journals of the country. We are one of the only leading law journals in the country that publishes regularly on a quarterly basis. Further, since the inception of the SCC monthly rankings of Indian law journals, we have occupied the top spot in two monthly rankings and the second spot in two other monthly rankings published so far. Till 2018, when prestigious international law journal index Washington-Lee covered in Indian journals, we occupied the top spot in the student-edited category and the third spot in the over-all category in India. In the past two years alone, institutions like the Supreme Court of India, the Law Commission of India and judicial academies among others have relied on the scholarship produced and published by us. We have also left our imprint in the constitutional jurisprudence of our country, with multiple articles of the NUJS Law Review being cited in the historic judicial opinions in the Aadhaar and Navtej Singh Johar cases. We are deeply grateful to our contributors in helping us achieve such milestones. At the same time, we also attribute a significant share of the credit to the dedicated teams of students who have worked throughout the years to ensure that only the best quality and the most accurate legal scholarship passes the muster of our publication.

The Indian tax system suffers from an excessive incidence and pendency of tax disputes before civil courts. A certain degree of disputes is unavoidable since the tax code and policy of any jurisdiction (being the outcome of various competing factors) inevitably contains a certain degree of ambiguity. However, a significant amount of unnecessary tax litigation is caused by the development of inconsistent tax jurisprudence. The author details the permissible scope of litigation expected in a tax system that truly complies with the rule of law. Following this, the author surveys two major areas of disputes – namely, the distinction between a “tax” and “fees”, and the interpretation of exemption notifications. This demonstrates the significant likelihood of judicial activism by appellate courts in tax disputes, which contributes to a tax policy that is doctrinally incoherent. It is submitted that inconsistent tax jurisprudence contributes to a larger number of disputes since both the taxpayers and the revenue department are uncertain of the outcomes in a tax system where the judiciary enjoys extraordinary jurisdiction in tax disputes. The solution proposed is to identify and enforce a broad set of principles concerning an efficient and fair tax system at the level of the judiciary, in line with international best practices.