Judicial Recalibration of LGBTQ+ Rights in India: Interpreting Originalism, Textualism & Transformative Constitutionalism

Abstract

This Paper appraises the two views of interpreting the constitution i.e. the Originalist view & the textualist view. Paper focuses on the Supreme Court’s engagement with homosexuality from an originalist perspective, culminating in the decriminalisation of consensual same sex act between consenting adults. Paper briefly outlines the significance of constitutional theory in legitimizing judicial action on issues like Homosexuality in India. It further delves into the liberty limiting principles highlighting their relevance in criminalizing this conduct. Further the paper traces the history of ‘sodomy’ laws and how these colonial-era laws were imposed without significant resistance reflecting colonial imposition.
Paper analyses the key Indian Legal cases such as Naz Foundation case where Delhi High Court adopted an originalist view and held section 377 of IPC as unconstitutional. Court emphasized on Constitutional Morality, interpreting constitutional broadly to account for dynamic conditions. Conversely in Suresh Kumar Kaushal Case Supreme Court revert to strict textualist interpretation. The paper argues that this decision ignored the constitutional value of diversity. Paper then discusses the Navtej Johar case as a corrective measure embracing both intentionalism and textualist originalism. This case restored egalitarian values & promoted transformative constitutionalism by recognizing sexual autonomy and dignity.
Finally, paper also addresses the recent Supriyo case relating to legal recognition of same-sex marriage. Here Supreme Court again adopted the textualist approach, rejecting transformative constitutionalism & ruled that right to marry is not a fundamental right & deferring the matter to the legislature. This approach is being compared with more progressive international precedents from USA, UK, France, Canada, Nepal & Taiwan which have leveraged the judicial action & combined with legislative reform have advanced LGBTQ+ rights. Paper also highlights the potential concerns regarding the absence of provisions for non-consensual homosexual acts.