ABSTRACT
This chapter describes the sequence of judgments that preceded Johar, analyse the Supreme Court of India (SCI) reasoning in Johar, and consider the potential impact of Johar, both on the criminal law beyond India, and in India beyond the criminal law. The SCI’s Johar bench rejected with impatience Koushal’s exclusion of “minuscule minorities” from the protection of the Constitution of India. The Naz Foundation’s writ petition in 2001 stressed the harmful effects of s. 377 on public health, i.e., on the non-governmental organisation’s work to teach “men who have sex with men” how to protect themselves against HIV infection. The most striking features of the Koushal judgment were its insistence: that a “miniscule fraction of the country’s population” did not deserve protection under the Constitution of India. With regard to the size of the transgender population, Justice Sikri wrote: “Rule of law demands protection of individual human rights.
