Privacy in public spaces: the transformative potential of Navtej Johar V. Union of India

On 6 September 2018, the Supreme Court of India decriminalized the intimate lives of LGBTQ individuals in the country by reading down Section 377 of the Indian Penal Code. One of the most significant elements of the decision is its articulation of the right to privacy. The Court lays out an understanding of the private domain that has expanded significantly since the litigation process began almost two decades ago. This chapter will argue that the expansion of the private sphere performed by the Court is a transformative notion that is reflected in several different strands of the decision: Whether it is by talking about how private acts might be performed in public spaces or reimagining the role of the Court in constitutional adjudication by way of enacting a public apology. This chapter further traces how this transformation may have happened, finding its paradoxical roots in the same Court’s prior decision upholding the constitutionality of Section 377. It explores how the public response to this decision set the stage for a jurisprudential reimagination of the public sphere that takes place in the final decision.