THE ARC OF JUSTICE: - ONGOING JUDICIAL ADVOCACY FOR LGBTQIA+ RIGHTS IN INDIA BY - ANU THOMAS
AUTHORED BY
- ANU THOMAS
LLM, GOVT. LAW COLLEGE TRIVANDRUM
“The meaning of liberty is – at its core – the ability to do what one
wishes to do and be who one wishes to be, in accordance with law.”
(The SC in Suprio Case)
INTRODUCTION
The pursuit of justice for LGBTQIA+ individuals in India is an ongoing
and dynamic process, reflecting broader societal shifts and the evolving
understanding of human rights. For many years, the LGBTQIA+ community faced
severe marginalization and discrimination, both legally and socially. However,
the landscape of LGBTQIA+ rights in India has undergone significant
transformation over the past few decades, marked by a series of landmark legal
and judicial interventions. The journey towards equality and acceptance has
been long and fraught with challenges, but persistent advocacy and a
progressive judiciary have been pivotal in driving change. At the heart of this
transformation is the growing recognition of the inherent dignity and equality
of LGBTQIA+ persons. Legal advocacy has played a crucial role in challenging
discriminatory laws and practices, fostering a more inclusive legal framework
that respects the rights of all individuals, regardless of their sexual
orientation or gender identity. This advocacy has encompassed a wide range of
issues, from decriminalization and anti-discrimination protections to the
recognition of diverse gender identities and the right to privacy. Judicial
advocacy, on the other hand, has been instrumental in interpreting and
expanding constitutional protections to include LGBTQIA+ rights. Courts have
increasingly acknowledged the importance of protecting the fundamental rights
of LGBTQIA+ individuals, contributing to a more progressive and inclusive legal
landscape.
JUDICIAL INTERPRETATIONS: -
The case was brought before the Delhi High Court by Naz Foundation, an
NGO working on HIV/AIDS and sexual health, challenging the constitutional
validity of Section 377 of the Indian Penal Code. Section 377
criminalized "carnal intercourse against the order of nature," which
was interpreted to include consensual homosexual acts.
Key Issue:
Ø The primary issue was whether Section
377 violated the fundamental rights guaranteed under the Constitution of
India.
The Delhi High Court, in a landmark decision on July 2, 2009, held that Section
377, to the extent it criminalized consensual sexual acts between adults in
private, violated Articles 14, 15, and 21 of the Constitution.
The Court held that Section 377 arbitrarily targeted a specific section
of society (the LGBTQ+ community), thus violating the right to equality. The
Court found that sexual orientation is a ground analogous to sex and that
discrimination based on sexual orientation is not permissible under Article
15. The Court emphasized that the right to privacy and dignity are integral
to Article 21, and criminalizing consensual homosexual acts violated
these rights. The Court distinguished between public morality, which can often
be influenced by majoritarian views, and constitutional morality, which upholds
the principles enshrined in the Constitution, including individual rights and
freedoms. The judgment emphasized that constitutional morality should prevail
over public morality.
The judgment set a significant legal precedent by recognizing the rights
of LGBTQ+ individuals and decriminalizing consensual homosexual acts. It was
the first major judicial acknowledgment of LGBTQ+ rights in India. The decision
was a crucial step towards achieving equality and non-discrimination for the
LGBTQ+ community. It provided legal recognition and protection for consensual
same-sex relationships.
It was a landmark judgment in the fight for LGBTQ+ rights in India. By
decriminalizing consensual homosexual acts and upholding the fundamental rights
to equality, non-discrimination, privacy, and dignity, the judgment
significantly advanced the legal and social recognition of LGBTQ+ individuals.
Although it faced a temporary setback with the Supreme Court's 2013 reversal,
the principles and arguments laid out in this case were instrumental in the
eventual decriminalization of homosexuality in India in 2018.
Following the 2009 decision by the Delhi High Court in Naz Foundation
v. Government of NCT of Delhi, which decriminalized consensual homosexual
acts between adults, several appeals were filed against this decision. The
Supreme Court of India heard these appeals, leading to the Suresh Kumar Koushal
v. Naz Foundation case.
Key Issue:
Ø The primary issue was whether the
Delhi High Court's decision to decriminalize consensual homosexual acts under Section
377 of the Indian Penal Code was constitutionally valid.
On December 11, 2013, the Supreme Court of India overturned the Delhi High
Court's 2009 judgment, effectively reinstating Section 377 and
recriminalizing consensual homosexual acts between adults. The Supreme Court
argued that it was not within the judiciary's purview to amend or strike down a
law passed by the legislature unless it was clearly unconstitutional. The Court
suggested that Parliament, and not the judiciary, was the appropriate forum to
decide on the issue. The judgment noted that there had been relatively few
prosecutions under Section 377, suggesting that this indicated the law
was not being misused or enforced arbitrarily against LGBTQ+ individuals. The
Court held that Section 377 did not violate Articles 14, 15, or 21
of the Constitution. It stated that Section 377 applied equally
to all individuals, regardless of their sexual orientation, and thus did not
constitute discrimination.
The Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation
(2013) had significant and far-reaching implications for LGBTQIA+ rights in
India. Below are the key ways in which this decision affected the community.
The decision reinstated Section 377 of the Indian Penal Code, which
criminalized "carnal intercourse against the order of nature." This
effectively made consensual homosexual acts between adults illegal once again.
The reinstatement of Section 377 created an atmosphere of fear among
LGBTQIA+ individuals. Many feared arrest, blackmail, and harassment by law
enforcement officials. The judgment emboldened those who opposed LGBTQIA+
rights, leading to increased stigmatization and discrimination. The decision
was seen as a violation of the right to privacy, which is part of the
fundamental right to life and personal liberty under Article 21 of the
Indian Constitution. By criminalizing consensual sexual acts between adults,
the judgment infringed upon the private lives of LGBTQIA+ individuals. The
decision contradicted the principles of equality and non-discrimination
enshrined in Articles 14 and 15 of the Constitution. It
failed to recognize that Section 377 disproportionately targeted
LGBTQIA+ individuals, leading to their unequal treatment under the law. The
decision reinforced negative stereotypes and social stigmas associated with
homosexuality. It contributed to the marginalization of LGBTQIA+ individuals,
affecting their mental health and well-being.
The criminalization of consensual homosexual acts exacerbated mental
health issues among LGBTQIA+ individuals, including anxiety, depression, and a
sense of isolation. The fear of legal repercussions and societal rejection led
to significant psychological distress. The decision was a major setback for
LGBTQIA+ advocacy groups and human rights organizations. Its undermined years
of legal battles and efforts to secure recognition and protection for LGBTQIA+
rights. The judgment hindered policy reforms aimed at protecting LGBTQIA+
rights. It discouraged progressive legislative changes and social initiatives that
could have improved the lives of LGBTQIA+ individuals. Despite its negative
impact, the Suresh Kumar Koushal decision also galvanized the LGBTQIA+ rights
movement in India. Activists, legal experts, and human rights organizations
intensified their efforts to challenge the judgment and advocate for the
decriminalization of homosexuality.
The case was filed by the National Legal Services Authority (NALSA)
seeking legal recognition for transgender individuals as a third gender and
protection of their rights under the Constitution of India. The petition aimed
to address the discrimination faced by the transgender community in various
aspects of life.
Key Issues:
Ø Whether transgender individuals
should be legally recognized as a third gender?
Ø Whether the fundamental rights
guaranteed under the Constitution of India apply equally to transgender individuals?
Addressing the issues of discrimination, social exclusion, and lack of
access to basic rights and services faced by the transgender community.
On April 15, 2014, the Supreme Court of India delivered a landmark
judgment recognizing the rights of transgender individuals and affirming their
legal status as a third gender. The Court recognized transgender individuals as
a third gender, distinct from the binary categories of male and female. This
legal recognition allows them to identify as transgender in all official
documents, including passports, voter ID cards, and educational certificates.
The Court held that transgender persons have the right to self-identify their
gender as male, female, or third gender. This decision respects the
individual's autonomy over their gender identity. The Court affirmed that
transgender individuals are entitled to the full range of fundamental rights
guaranteed under the Indian Constitution. These include: Article 14,
15, 16, 19 & 21. The judgment provided legal recognition and
social validation to transgender individuals, acknowledging their existence and
rights as equal citizens. This has paved the way for greater social acceptance
and inclusion. With legal recognition, transgender individuals now have better
access to various services and opportunities, including education, employment,
and healthcare. The provision of reservations in educational institutions and
public employment aims to address historical disadvantages faced by the
community.
The judgment strengthens legal protections against discrimination for
transgender individuals. It ensures that they cannot be discriminated against
on the basis of their gender identity in various spheres of life, including
employment, healthcare, and public services. The directives to the government
to implement social welfare schemes and provide healthcare services are crucial
for addressing the specific needs of transgender individuals. These measures
aim to improve their overall well-being and quality of life. The judgment has
empowered transgender individuals to assert their rights and has contributed to
raising public awareness about transgender issues. It has encouraged advocacy
and activism within the community and among allies.
While the NALSA judgment primarily addresses the rights of
transgender individuals, its principles and directives have broader
implications for the LGBTQIA+ community. The judgment's recognition of the
right to self-identify one's gender extends the concept of gender identity and
expression beyond the binary framework. This recognition supports the rights of
all individuals within the LGBTQIA+ spectrum to express their gender identity
freely. By interpreting Article 15 to include discrimination based on
gender identity, the judgment sets a precedent for challenging discrimination
against other LGBTQIA+ individuals. It reinforces the idea that discrimination
on the basis of sexual orientation and gender identity is unconstitutional. The
judgment's emphasis on the right to live with dignity and autonomy over one's
body and identity is a significant affirmation of the rights of LGBTQIA+
individuals. It supports the broader principle that every person has the right
to live according to their true identity without fear of stigma or
discrimination.
The case of Justice K.S. Puttaswamy v. Union of India arose from a
challenge to the constitutional validity of the Aadhaar scheme, which involved
the collection and use of biometric data by the government. The petitioners
argued that the scheme violated the right to privacy, which was not explicitly
mentioned in the Indian Constitution.
Key Issue:
Ø Whether the right to privacy is a
fundamental right under the Indian Constitution?
On August 24, 2017, a nine-judge bench of the Supreme Court unanimously
delivered a historic judgment affirming that the right to privacy is a
fundamental right under the Indian Constitution. The judgment overruled earlier
decisions that did not recognize privacy as a fundamental right. The Court held
that the right to privacy is intrinsic to the right to life and personal liberty
under Article 21 and is part of the freedoms guaranteed by Part III
of the Constitution. This encompasses Articles 14 (right to
equality) and 19 (freedoms of speech, expression, etc.). Privacy was
defined broadly to include various aspects such as personal autonomy, bodily
integrity, confidentiality, and the right to make personal decisions. It
extends to personal data, intimate relationships, and individual choices about
one’s lifestyle, behavior, and identity.
The Court acknowledged that the right to privacy is not absolute and can
be subject to reasonable restrictions. Any invasion of privacy by the state
must meet the three-fold requirement:
v There must be a law in place
justifying the encroachment.
v The law must seek to achieve a
legitimate state aim.
v There must be a rational connection
between the objective and the means adopted, ensuring the least restrictive
measure is used.
The recognition of privacy as a fundamental right underpins the right of
LGBTQIA+ individuals to personal autonomy and dignity. It supports their right
to make decisions about their lives, including their sexual orientation and
gender identity, free from unwarranted state interference.
“Discrete and insular minorities face grave dangers of discrimination for
the simple reason that their views, beliefs or way of life does not accord with
the “mainstream”. Yet in a democratic Constitution founded on the Rule of Law,
their rights are as sacred as those conferred on other citizens to protect
their freedoms and liberties. … Discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and self-worth
of the individual. Equality demands that the sexual orientation of each
individual in society must be protected on an even platform. The right to
privacy and the protection of sexual orientation lies at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of
the Constitution.”
The broad interpretation of privacy includes protection against
discrimination based on sexual orientation and gender identity. This provides a
constitutional basis for challenging laws and practices that discriminate against
LGBTQIA+ individuals. The judgment’s recognition of informational privacy is
significant for LGBTQIA+ individuals, ensuring their personal information,
including health and identity details, is protected from unauthorized
disclosure and misuse. The privacy judgment sets a precedent for enhancing
legal protections for LGBTQIA+ individuals in various aspects of life,
including health, employment, and education. It mandates that any state action
affecting privacy must be justified by a compelling state interest and must be
proportionate.
The case involved a woman named Hadiya (Akhila Ashokan), who converted to
Islam and married Shafin Jahan, a Muslim man. Her father, Asokan K. M.,
challenged the marriage, claiming that his daughter had been brainwashed and
forcefully converted to Islam. The Kerala High Court annulled the marriage,
declaring it a case of "love jihad."
Key Issue:
Ø Whether an adult has the right to
marry a person of their choice without interference from family or the state.
Ø Whether the High Court was correct in
annulling the marriage of Hadiya and Shafin Jahan on the grounds of "love
jihad."
In Shafin Jahan v. Asokan K. M, the Court observed that absolute
faith of an individual to choose a life partner is not in the least affected by
matters of faith. The Constitution guarantees to each individual the right
freely to practice, profess and propagate religion. Choices of faith and belief
as indeed choices in matters of marriage lie within an area where individual
autonomy is supreme. The law prescribes conditions for a valid marriage. It
provides remedies when relationships run aground. Neither the State not the law
can dictate a choice of partners or limit the free ability of every person to
decide on these matters.
“The right to marry a person of one's choice is integral to Article 21
of the Constitution. The Constitution guarantees the right to life. This
right cannot be taken away except through a law which is substantively and
procedurally fair, just and reasonable. Intrinsic to the liberty which the
Constitution guarantees as a fundamental right is the ability of each
individual to take decisions on matters central to the pursuit of happiness.
Matters of belief and faith, including whether to believe are at the core of
constitutional liberty. Society has no role to play in determining our choice
of partners. Intimacies of marriage, including the choices which individuals
make on whether or not to marry and on whom to marry, lie outside the control
of the State. Courts as upholders of constitutional freedoms must safeguard
these freedoms.”
The choice of a partner is indeed considered a fundamental right under
Article 21 of the Indian Constitution, which guarantees the right to life
and personal liberty. This right is integral to personal autonomy and dignity.
It allows individuals to make decisions about their intimate relationships and
family life without undue interference from the state or society. For LGBTQIA+
individuals, this right is crucial for ensuring equality and freedom in
intimate relationships. While judicial rulings have affirmed the importance of
this right, ensuring that the right to choose a partner extends to all
individuals, regardless of sexual orientation or gender identity, requires
ongoing legal reform and societal acceptance.
The case was brought before the Supreme Court by an NGO called Shakti
Vahini, which sought to address the issue of
honor-based violence and the right of individuals, particularly women, to
marry of their choice. The petition aimed to address the growing incidents of
violence and threats faced by individuals from their families and communities
when they chose to marry against societal norms or family expectations.
Key Issue:
Ø The issue of honor-based violence
Ø The prevalence of honor killings in
India and the role of Khap Panchayats or similar community groups in
perpetuating such violence.
The Supreme Court emphasized the need for protecting individuals from
honor-based violence and coercion. The Court directed that the police should
ensure the safety and protection of individuals facing threats or violence due
to their choice of marriage. The Court reaffirmed the right of individuals to
choose their own partners and marry without fear of violence or coercion. It
underscored that this right is protected under the Constitution as part of
personal liberty and autonomy. The Court directed law enforcement agencies to
take preventive measures and provide protection to individuals facing threats
of violence due to their choice of marriage. This included registering
complaints and take action to ensure the safety of the individuals involved.
The Court emphasized the need for both preventive and remedial measures to
address honor-based violence, including sensitization of law enforcement
agencies and ensuring prompt action in cases of reported violence or threats.
The judgment underscored the need for legal and institutional mechanisms
to protect individuals from honor-based violence. It reinforced the obligation
of law enforcement agencies to ensure the safety of individuals exercising
their right to marry. The Court’s ruling affirmed the constitutional right of
individuals to marry a partner of their choice. This decision supported the
broader principle of personal autonomy and liberty, reinforcing that societal
or familial norms cannot override individual rights. The judgment highlighted
the need for reforms within law enforcement agencies to better handle cases of
honor-based violence. It called for training and sensitization to ensure
effective protection and support for victims. The ruling has contributed to the
broader dialogue on individual rights and honor-based violence, promoting
awareness and encouraging societal changes to support the right to marry
without facing violence or coercion.
The Supreme Court’s decision in Shakti Vahini v. Union of India
(2018) primarily addressed honor-based violence and the right to marry a person
of one's choice, reaffirming personal autonomy and safety. While the judgment
did not specifically address LGBTQIA+ rights, its principles have significant
implications for the LGBTQIA+ community in the context of individual rights and
protection against violence. The judgment affirmed the fundamental right to
choose one's partner, free from coercion and violence. This principle
inherently supports the right of LGBTQIA+ individuals to choose their partners
without fear of retribution, aligning with the broader recognition of personal
autonomy and liberty under the Constitution. By addressing honor-based
violence, the Court underscored that familial and societal pressures cannot
override individual rights. LGBTQIA+ individuals often face significant
pressure and violence from their families and communities for their choices in
partners and relationships. This ruling provides a legal precedent for
protecting LGBTQIA+ individuals from such coercion and violence.
The case of Navtej Singh Johar v. Union of India challenged the
constitutionality of Section 377 of the Indian Penal Code, a
colonial-era law that criminalized "carnal intercourse against the order
of nature," which was interpreted to include consensual homosexual acts.
The petitioners included dancer Navtej Singh Johar, journalist Sunil Mehra,
chef Ritu Dalmia, and business executive Aman Nath, among others. They argued
that Section 377 violated their fundamental rights under the Indian
Constitution.
Key Issue:
Ø Whether Section 377 violates
the right to privacy, as established in the Justice K.S. Puttaswamy
v. Union of India (2017) judgment?
Ø Whether Section 377 violates Article
14 of the Constitution, which guarantees equality before the law and equal
protection of the laws?
Ø Whether Section 377 violates Article
19(1)(a), which guarantees the freedom of speech and expression?
Ø Whether Section 377 violates Article
21, which guarantees the right to life and personal liberty, including the
right to dignity and autonomy?
1) The Court held that Section 377,
insofar as it criminalizes consensual sexual conduct between adults in private,
is unconstitutional. The Court clarified that Section 377 would continue
to apply to non-consensual acts, acts involving minors, and bestiality. The
judgment extensively cited the Puttaswamy case, affirming that the right
to privacy is a fundamental right. It held that sexual orientation is an
essential attribute of privacy, and Section 377’s criminalization of
consensual same-sex acts violates the right to privacy.
2) There can be no doubt that an individual also
has a right to a union under Article 21 of the Constitution. When we say
union, we do not mean the union of marriage, though marriage is a union. As a
concept, union also means companionship in every sense of the word, be it
physical, mental, sexual or emotional. The LGBT community is seeking
realization of its basic right to companionship, so long as such a
companionship is consensual, free from the vice of deceit, force, coercion and
does not result in violation of the fundamental rights of others.
3) The Court held that Section 377
discriminates against LGBTQIA+ individuals based on their sexual orientation,
violating Article 14. It emphasized that the law unfairly targets a
segment of society, thereby failing the test of equality and
non-discrimination. The Court recognized that Section 377 impairs the
freedom of expression by penalizing consensual sexual acts between same-sex
adults, thus infringing on their right to express their identity and sexuality
freely.
4) The Court underscored that Section
377 violates Article 21 by infringing on the right to life and
personal liberty, which includes the right to live with dignity and the right
to autonomy over one’s body and sexual choices.
5) Section 377 IPC, so far as it penalizes any consensual sexual relationship between two
adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or
lesbians (woman and a woman), cannot be regarded as constitutional. However, if
anyone, by which we mean both a man and a woman, engages in any kind of sexual
activity with an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence under Section 377 IPC.
Any act of the description covered under Section 377 IPC done between two
individuals without the consent of any one of them would invite penal liability
under Section 377 IPC.
The judgment acknowledged the historical injustice faced by LGBTQIA+
individuals, including discrimination, stigma, and violence. It emphasized the
need for societal change and acceptance of diverse sexual orientations. The
Court recognized the adverse mental health impacts of criminalizing consensual
homosexual acts, including depression, anxiety, and suicidal tendencies. It
highlighted the need to combat social stigma and promote mental well-being. The
Court acknowledged the importance of affirming one’s identity and the need for
the law to respect and protect the dignity and choices of LGBTQIA+ individuals.
v The decriminalization of consensual homosexual
acts is a landmark step towards legal recognition and protection of LGBTQIA+
rights in India. It removes the fear of criminal prosecution for consensual
same-sex relationships.
v The judgment affirms the fundamental
rights of LGBTQIA+ individuals, including privacy, equality, freedom of
expression, and the right to life and personal liberty. It sets a legal
precedent for future cases and advocacy efforts.
v The judgment has significantly
contributed to increasing social acceptance and visibility of LGBTQIA+
individuals. It has sparked public discourse and awareness about LGBTQIA+
issues and rights.
v The principles established in the
judgment provide a strong foundation for further legal reforms, including
anti-discrimination laws, recognition of same-sex marriages, and other legal
protections for LGBTQIA+ individuals.
v By decriminalizing consensual
same-sex acts, the judgment helps reduce the social stigma and mental health
challenges faced by LGBTQIA+ individuals. It promotes their right to live with
dignity and self-respect.
v The judgment lays the groundwork for
further legal reforms aimed at ensuring comprehensive protection and
recognition of LGBTQIA+ rights. This includes areas such as marriage equality,
anti-discrimination laws, and access to healthcare and social services.
The Supreme Court’s decision in Navtej Singh Johar v. Union of India
(2018) is a monumental step forward in the protection and advancement of
LGBTQIA+ rights in India. By decriminalizing consensual homosexual acts and
affirming the fundamental rights to equality, non-discrimination, privacy, and
dignity, the judgment provides a strong legal foundation for the recognition
and protection of LGBTQIA+ individuals. It marks a significant shift towards
greater acceptance and inclusion, while also setting the stage for continued
advocacy and legal reforms to achieve full equality for the LGBTQIA+ community
in India.
The case of Arunkumar v. Inspector General of Registration (2019) is a
significant decision by the Madras High Court in India concerning the
recognition of transgender rights. Arunkumar, a cisgender man, and Sreeja, a
transgender woman, married according to Hindu rites and ceremonies. When they
sought to register their marriage under the Hindu Marriage Act, the registrar
refused, prompting them to file a writ petition.
Key Issue:
Ø The central issue was whether a
marriage between a cisgender man and a transgender woman could be registered
under the Hindu Marriage Act, 1955?
The Madras High Court held that the marriage between Arunkumar and Sreeja
was valid under the Hindu Marriage Act. The court ruled that the term
"bride" under Section 5 of the Act includes transgender women.
The court interpreted the term "bride" in a broader sense to include
transgender women, stating that the term should be understood in the context of
evolving societal norms and the rights of transgender individuals. The court
relied on the Supreme Court’s landmark decision in National Legal Services
Authority v. Union of India (NALSA), 2014, which recognized transgender
persons as the third gender and affirmed their rights, including the right to
self-identify their gender. The court emphasized principles of equality,
non-discrimination, and dignity under the Indian Constitution. It asserted that
denying recognition to the marriage would violate the fundamental rights of the
individuals involved.
v Recognizes the right of transgender
persons to marry under the Hindu Marriage Act.
v Affirms the broader interpretation of
gender in legal contexts.
v Reinforces the constitutional
principles of equality and non-discrimination.
The decision in Arunkumar v. Inspector General of Registration is a
progressive step towards the legal recognition and protection of transgender
rights in India.
In November 2022, the petitioners, Supriyo aka Supriya Chakraborty and
Abhay Dang on behalf of 21 same-sex couples approached the Apex Court seeking
the recognition of same-sex marriages under Special Marriage Act, 1954, Foreign
Marriage Act, 1969 and Hindu Marriage Act, 1955. They approached the
court in exercise of its power of judicial review seeking enforcement of their
own fundamental rights as well as in the public interest on behalf of lakhs of
crores of other LGBTQIA+ citizens of India. Earlier this year, the Supreme
Court bench led by the Chief Justice debated the same-sex marriage extensively
over a ten-day hearing reserving it for May 2023 and referred the case to a
constitutional bench. The verdict was finally delivered on 17th October 2023.
While India has made notable strides in recognizing the rights of its LGBTQIA+
citizens, the institution of same-sex marriage remains a contested frontier.
The petitioners contended that non- recognition of same-sex marriage amounts to
violation of their fundamental rights under Article 14, 15, 19(1)(a) and
21 of the Constitution of India which the petitioners seek to enforce
through their petition.
Key issues:
Ø Are same-sex couples treated fairly
under the law? Do they have the same rights as other couples when it comes to
aspects like inheritance, owning property together, adoption, taxation, moving
to another country and healthcare?
Ø Are LGBTQ+ people and their
relationships accepted and respected by society? Especially in places where
traditions or religions might not approve of same-sex relationships due to their
beliefs?
Ø How do same-sex relationships affect,
how people see gender roles, what is considered normal when it comes to love
and sex, and the values people perceive of family and marriage?
Ø Who gets to decide if same-sex
marriage must be allowed-should the state make the rules, or the individuals
have the freedom to choose? And what role do the courts play in deciding if
same-sex marriage should be legal?
The Court ruled that there is no fundamental right to marry a person of
the same sex under the Indian Constitution and maintained that the Special
Marriage Act, 1954, applies only to heterosexual couples. While affirming
the rights of LGBTQIA+ individuals to form unions and live with dignity, the
Court emphasized the need for legislative action to address the recognition of
same-sex marriages and directed against discrimination towards same-sex
couples.
The Union Government, State Governments, and Governments of Union
Territories are directed to:
v Ensure that the queer community is
not discriminated against because of their gender identity or sexual
orientation;
v Ensure that there is no
discrimination in access to goods and services to the queer community, which
are available to the public;
v Take steps to sensitize the public
about queer identity, including that it is natural and not a mental disorder;
v Establish hotline numbers that the
queer community can contact when they face harassment and violence in any form;
v Establish and publicize the
availability of ‘safe houses’ or Garima Grehs in all districts to provide
shelter to members of the queer community who are facing violence or
discrimination;
v Ensure that “treatments” offered by
doctors or other persons, which aim to change gender identity or sexual
orientation are ceased with immediate effect;
v Ensure that inter-sex children are
not forced to undergo operations with regard only to their sex, especially at
an age at which they are unable to fully comprehend and consent to such
operations;
v Ensure that inter-sex children are
not forced to undergo operations with regard only to their sex, especially at
an age at which they are unable to fully comprehend and consent to such
operations;
v Recognize the self-identified gender
of all persons including transgender persons, hijras, and others with
sociocultural identities in India, as male, female, or third gender. No person
shall be forced to undergo hormonal therapy or sterilization or any other
medical procedure either as a condition or prerequisite to grant legal
recognition to their gender identity or otherwise;
v The appropriate Government under the
Mental Healthcare Act must formulate modules covering the mental health of
queer persons in their programs under Section 29(1). Programs to reduce
suicides and attempted suicides (envisaged by Section 29(2) must include
provisions which tackle queer identity;
The following directions are issued to the police machinery:
v There shall be no harassment of queer
couples by summoning them to the police station or visiting their places of
residence solely to interrogate them about their gender identity or sexual
orientation;
v They shall not force queer persons to
return to their natal families if they do not wish to return to them;
v When a police complaint is filed by
queer persons alleging that their family is restraining their freedom of
movement, they shall on verifying the genuineness of the complaint ensure that
their freedom is not curtailed;
v When a police complaint is filed
apprehending violence from the family for the reason that the complainant is
queer or is in a queer relationship, they shall on verifying the genuineness of
the complaint ensure due protection; and
v Before registering an FIR against a
queer couple or one of the parties in a queer relationship (where the FIR is
sought to be registered in relation to their relationship), they shall conduct
a preliminary investigation in terms of Lalita Kumari v. Government of U. P[10] to ensure that the complaint discloses a cognizable offence. The police
must first determine if the person is an adult. If the person is an adult and
is in a consensual relationship with another person of the same or different
gender or has left their natal home of their own volition, the police shall
close the complaint after recording a statement to that effect. The Supreme
Court declined to grant legal recognition to non- heterosexual marriages under
the existing law.
The court said that the right to marriage is not a fundamental right and
is not guaranteed by the constitution. While the court did not approve equal
marriage, it did recognize the rights of non- heterosexual couples.
Additionally, it held that the matter falls outside the jurisdiction of the
court and the Parliament is the appropriate forum for the same due to a large
number of legislations and provisions involved. Following are the further
observations:
The court held that it cannot strike down or read differently the
provisions of the Special Marriage Act, which defines marriage as a
union between a man and a woman. It said that this is a matter of policy and
legislation, not of interpretation or constitutional rights
v Queerness is a natural phenomenon
known to India since ancient times. It is not urban or elite;
v There is no universal conception of
the institution of marriage, nor is it static. Under Articles 245 and 246
of the Constitution read with Entry 5 of List III to the Seventh Schedule,
it lies within the domain of Parliament and the state legislatures to enact
laws recognizing and regulating queer marriage; The Constitution does
not expressly recognize a fundamental right to marry. An institution cannot be
elevated to the realm of a fundamental right based on the content accorded to
it by law. However, several facets of the marital relationship are reflections
of constitutional values including the right to human dignity and the right to
life and personal liberty;
v The freedom of all persons including
queer couples to enter into a union is protected by Part III of the
Constitution. The failure of the state to recognize the bouquet of
entitlements which flow from a union would result in a disparate impact on
queer couples who cannot marry under the current legal regime. The state has an
obligation to recognize such unions and grant them benefit under law; In Article
15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only
because of the causal relationship between homophobia and sexism but also
because the word ‘sex’ is used as a marker of identity which cannot be read
independent of the social and historical context;
v The right to enter into a union
cannot be restricted based on sexual orientation. Such a restriction will be
violative of Article 15. Thus, this freedom is available to all persons
regardless of gender identity or sexual orientation;
v The decisions in Navtej and
Justice KS Puttaswamy recognize the right of queer couples to exercise
the choice to enter into a union. This relationship is protected from external
threat. Discrimination on the basis of sexual orientation will violate Article
15;
v Intersex persons who identify as
either male or female have the right to marry under existing law including
personal laws which regulate marriage;
v The state must enable the LGBTQ
community to exercise its rights under the Constitution. Queer persons have the
right to freedom from coercion from their natal families, agencies of the state
including the police, and other persons;
v Unmarried couples (including queer
couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations
is ultra vires the JJ Act, Articles 14, and 15. Regulation
5(3) is read down to exclude the word “marital”. The reference to a ‘couple’ in
Regulation 5 includes both married and unmarried couples as well as queer
couples. The principle in Regulation 5(2)(a) that the consent of spouses in a
marriage must be obtained if they wish to adopt a child together is equally
applicable to unmarried couples who seek to jointly adopt a child. However,
while framing regulations, the state may impose conditions which will sub serve
the best interest and welfare of the child in terms of the exposition in the
judgment;
v The CARA Circular
disproportionately impacts the queer community and is violative of Article
15;
v The Union Government, State
Governments, and Governments of Union Territories shall not discriminate
against the freedom of queer persons to enter into union with benefits under
law; and
v Record the assurance of the Solicitor
General that the Union Government will constitute a committee chaired by the
Cabinet Secretary for the purpose of defining and elucidating the scope of the
entitlements of queer couples who are in unions.
Even though there are some limitations, the decision is a step forward in
affirming the dignity and rights of LGBTQIA+ individuals, but it falls short of
recognizing same-sex marriages. It protects LGBTQIA+ rights to some extent by
emphasizing non-discrimination and the right to form unions, but significant
legal recognition and protections, particularly for same-sex marriages, remain
unaddressed. The decision underscores the need for legislative action to
achieve full equality for LGBTQIA+ individuals in India.
4.4 Conclusion
The struggle for LGBTQIA+ rights in India has seen remarkable progress
over the past few decades, signifying a transformative shift in the legal and
social landscape. The decriminalization of consensual same-sex relationships
through the landmark judgment in Navtej Singh Johar v. Union of India
(2018) marked a significant victory for the community, affirming their
fundamental rights to equality, privacy, and dignity. This judgment set a
crucial precedent, paving the way for further legal recognition and protection
of LGBTQIA+ individuals.
However, the path towards full equality remains a challenging one. The Suprio
@ Suprichakraborty v. Union of India (2023) judgment, while affirming the
rights of LGBTQIA+ individuals to form unions and live with dignity,
highlighted the limitations of judicial intervention in the absence of
legislative action. The Supreme Court's decision to leave the recognition of
same-sex marriages to the legislature underscores the need for continued
advocacy and political engagement to achieve comprehensive legal reforms.
The ongoing advocacy for LGBTQIA+ rights in India is not just about
achieving legal milestones but also about changing societal attitudes and
combating deep-seated prejudices. The emphasis on constitutional morality in
recent judgments reflects a broader understanding of justice that transcends
traditional norms and embraces inclusivity and equality. This principle is
crucial in addressing discrimination and ensuring that LGBTQIA+ individuals can
lead lives free from fear, stigma, and exclusion.