The petitioner’s appointment to the post of Home Guard was cancelled after a video of him was made ‘viral’ by someone. From the rudimentary facts that appear in the final judgment, it seems that the petitioner was engaged in public displays of affection with a person of the same sex. When this video was seen by his employer, the District Commandant of the Home Guard, his appointment was cancelled. This cancellation was challenged in the Allahabad High Court and was duly reversed.
This case marks the first recorded instance in which the limits of public displays of affection could be tested with respect to a queer couple, after the Supreme Court decriminalized the sexual lives of LGBT persons in 2018 (Navtej).
A majority in the Navtej Johar case had found that the fundamental right to expression included within itself the right to express oneself sexually, with a partner of one’s choice. In saying this, the court clarified that decency and morality, two of the several grounds available to the State to restrict expression, could not justify Section 377 because ‘decency and morality’ were not constitutional permissions for majoritarianism. Justices Misra and Khanwilkar had also stated that even public displays of affection between members of the queer community also cannot bogged down by majoritarian perception, so long as they do not amount to indecency or violate the public order. Neither of these conditions was fulfilled in the case at hand, and the judge noted that cancellation order was ‘vindictive’ in nature. Accordingly, the court directed the Commandant General of the Home Guard to reinstate the petitioner in post with immediate effect.
However, the case facts do not tell us anything about the nature of public display. The facts of this case, had we known them, could have produced an interesting analysis to see whether the doctrinal limits of public decency are altered in any way when the couple in question belongs to the LGBT community.
Cases involving public displays of affection also offer up other important opportunities for analysis. Over time, it would be important to observe, from the point of view of discrimination law, who is being charged with acts of public indecency. Does the inclusion of the LGBT community within the ambit of these laws result in members of this community being disproportionately charged? On the one hand, the community was always liable to be charged under public indecency laws, and this judgment did not ‘include’ the community within the ambit of these laws. At the same time Section 377 was the main site of legal action against LGBT persons. Now, with Section 377 gone, it becomes important to observe not only any potential disproportionality noted above, but also whether the old harassment of LGBT persons by police officials returns under the new garb of public indecency and violation of public order.