Author: Dewanshi Bhatt, Bennett University
To the Point
Following the Supreme Court’s landmark Navtej Singh Johar v. Union of India (2018) ruling, which examine Section 377 of the Indian Penal Code to decriminalize consenting same-sex relationships between adults, the legal system’s stance on LGBTQ+ rights in India has seen a notable transformation. This historic ruling represented a constitutional acknowledgment that sexual orientation and gender identity are fundamental components of individual liberty, dignity, and equality under Articles 14, 15, 19, and 21 of the Constitution, rather than just repealing a penal law from the colonial past.
Specifically, regarding subjects like marriage equality, adoption rights, and inheritance, where Parliament has plenary legislative competence, the judiciary has had to strike a balance between progressive constitutional interpretation and judicial restraint since decriminalization. Positive rights (entitlements to welfare benefits, governmental protection, and relationship recognition) have replaced negative liberties (freedom from criminal prosecution) in court discussions.
The guidelines established in Navtej Johar and NALSA v. Union of India have been implemented by high courts nationwide to forbid conversion therapy and other similar procedures, acknowledge live-in partnerships for welfare benefits, and shield same-sex couples from harassment. The Supreme Court expanded the definition of “family” in Deepika Singh v. Central Administrative Tribunal (2022) to embrace non-traditional arrangements, including same-sex partners. This allowed for a broader acceptance of LGBT partnerships in welfare and work settings.
However, the Supreme Court refused to read marital equality into the Special Marital Act in Supriyo Chakraborty v. Union of India (2023), noting that such reform belongs in the legislative branch, even if it upheld the constitutional rights of homosexual people. Decriminalization has been accomplished, but substantive equality in civil rights is still being worked out, leaving India at a critical juncture.
The current judicial posture is indicative of a gradualist approach: judges are hesitant to enter the legislative realm to amend laws pertaining to marriage, adoption, or inheritance, but are prepared to increase protections and rights in non-legislative areas. The continuous pursuit of complete equality for LGBTQ+ people in India is shaped by this trajectory, which highlights a strategic interaction between legislative reform and judicial interpretation.
Use of Legal Jargon
Fundamental Rights: The Constitution’s fundamental rights, such as equality, liberty, and dignity, shield LGBTQ+ people from prejudice.
1. Equality before the Law: No one should be subjected to discrimination on the basis of their gender identity or sexual orientation since everyone is equal before the law.
2. Prevention of Discrimination on the Basis of Sex: Gender identity and sexuality are likewise prohibited under the law.
3. The right to privacy shields individual relationship decisions from government intervention.
4. Dignity Jurisprudence: Everyone is entitled to autonomy and respect in expressing who they are.
5. Relational Equality: This guarantees that LGBTQ+ individuals can engage in society as equals rather than as second-class citizens.
6. Horizontal Application of Fundamental Rights: These rights can shield people from conflict even when private parties are involved, such as in housing or the job.
7. Judicial Activism vs. Restraint: While restraint leaves significant reforms to Parliament, activism uses judicial decisions to enhance rights.
8. Section 377 was overruled for being excessive using the doctrine of proportionality, which states that laws restricting rights must be justifiable and reasonable.
9. Stare Decisis: In order to preserve consistency, courts adhere to earlier decisions, as the high courts did follow Navtej Johar.
10. Transformative Constitutionalism: The Constitution should support social change, especially for underrepresented groups.
11. Parliamentary Competence: Courts frequently defer to Parliament’s authority to enact legislation, such as those pertaining to marriage or adoption.
The Proof
1. Decriminalization – Navtej Tej Singh, 2018
The Supreme Court ruled that Section 377 (as it pertained to voluntary adult sex) violated Articles 14, 15, and 21 i.e. dignity, equality, and privacy and that criminalization singled out LGBT people as a class, overturning the criminal implications of same-sex consensual activities. The Court based a large portion of its arguments on the rights to dignity and privacy.
2. Recognition of gender – NALSA v. Union of India, 2014
The Court upheld the right to self-identify as gender nonconforming, acknowledged transgender individuals as entitled to constitutional protection, and ordered actions for their welfare and legal recognition. The foundation for gender minorities’ legal visibility was established by this ruling.
3. Expanding the concept of “family” and social advantages – Deepika Singh v. Central Administrative Tribunal (2022)
The Supreme Court signalled that cohabiting couples could be legally considered as family units by recognizing unusual families, such as blended families and same-sex partners, for the purposes of social aid and employment benefits. Even in the absence of official marital registration, this significant pragmatic breakthrough operationalizes relational equality.
4. The case of Supriyo Chakraborty & Ors. v. Union of India (2023) concerns marriage equality
Same-sex marriage petitions were reviewed by a five-judge bench. The Court noted that Parliament should be in charge of reforming marriage law and declined to judicially interpret marriage equality into already-existing statutes (such as the Special Marriage Act). Nevertheless, the Court underlined anti-discrimination duties and suggested legislative and policy measures. This is the most obvious case where the court advocated for legislative reform while limiting itself to interpretation.
5. Emergent protections through lower and high court interventions (2022–2025)
In certain situations, including as recognizing chosen families, shielding partners from familial detention, and granting long-term live-in couples certain social safeguards, numerous High Courts and the Supreme Court have protected homosexual couples since Section 377. Courts have also had to deal with problems including access to health and welfare programs, conversion therapy, and discrimination in the job. In a recent ruling, the Madras High Court applied the constitutional framework of autonomy and dignity to explicitly recognize “chosen families” outside of marriage.
Abstract
In India, the post-Section 377 era represents a watershed in the history of LGBTQ+ constitutional rights. Consensual same-sex relationships between adults were decriminalized by the Supreme Court in its historic decision in Navtej Singh Johar v. Union of India (2018), which was based on the Indian Constitution’s fundamental rights to equality, dignity, privacy, and personal liberty. Together with the 2014 recognition of transgender rights in NALSA v. Union of India, this ruling established a progressive body of law that sees gender identity and sexual orientation as essential components of personal freedom.
Since then, the Indian judiciary has gradually shifted its focus from decriminalization a negative right that shields one from punishment by the state to positive rights including harassment prevention, welfare benefit extension, and recognition of different family structures. High courts and the Supreme Court have intervened on multiple occasions to defend the rights of queer couples, prohibit harmful practices like conversion therapy, and broaden the legal definition of “family” to include cohabitation and same-sex partnerships, as evidenced in Deepika Singh v. Central Administrative Tribunal (2022).
The path to total equality is yet unfinished, though. The Supreme Court deferred to Parliament in Supriyo Chakraborty v. Union of India (2023), acknowledging the constitutional rights of LGBTQ+ individuals but refusing to judicially recognize same-sex marriage. This cautious approach combines judicial caution in cases that call for legislative reform with judicial assertiveness in defending rights. This article highlights the interaction involving legal interpretation and legislation while critically analysing the judiciary’s post- Section 377 approach. It highlights how Indian courts have improved substantive safeguards while largely ignoring fundamental issues like surrogacy access, inheritance equity, adoption rights, and marriage equality. The research comes to the conclusion that a cooperative approach combining innovative litigation tactics, strong legislation, and uniform executive policy implementation is necessary for the advancement of LGBTQ+ rights in India.
Case Laws
1. Navtej Singh Johar v. Union of India
A group of LGBTQ+ petitioners contested the legitimacy of Section 377 of the Indian Penal Code, which made consenting sexual actions between adults of the same sex illegal, in this historic case. Whether such criminalization infringed against the Constitution’s guarantees of equality, non-discrimination, dignity, privacy, and personal liberty was the main issue before the Supreme Court. In a majority decision, the Court ruled that sexual orientation is an inherent and unchangeable trait and that it is arbitrary and unlawful to target people based on it. It also read down Section 377 to forbid consensual actions between adults. In addition to decriminalizing homosexuality in India, this ruling established the constitutional framework for upcoming rights-based lawsuits involving the LGBTQ+ community.
2. National Legal Services Authority (NALSA) v. Union of India
The National Legal Services Authority brought this action to seek legal recognition and protection for the rights of transgender people. The question was whether the Constitution’s fundamental rights were being violated by the lack of such recognition. The Supreme Court upheld the petitioners’ freedom to self-identify as transgender without the need for medical assistance, establishing transgender people as a separate “third gender.” The Union and State Governments were instructed by the Court to guarantee transgender people’s rights to welfare, legal paperwork, and reservations. This ruling broadened the definition of “sex” under Article 15 to encompass gender identity, marking a turning point for gender liberties in India.
3. Deepika Singh v. Central Administrative Tribunal & Ors.
In this instance, a government nurse was refused maternity leave for her husband’s children from a previous marriage because, according to the relevant service rules, they were not considered to be a member of her “family.” The Supreme Court was asked to determine whether the term “family” should be used broadly or narrowly. In a landmark decision, the Court ruled that the definition of family is dynamic and needs to take into account unusual arrangements like blended families, stepchildren, and live-in partners. Despite not specifically addressing LGBTQ+ rights, this ruling has important ramifications because it makes it possible for same-sex couples to be recognized as “family” in welfare and work settings.
4. Supriyo @ Supriyo Chakraborty & Ors. v. Union of India
The Supreme Court received a number of petitions asking for the acceptance of same-sex marriage under the Special Marriage Act and other personal legislation. The main question was whether denying same-sex couples the ability to marry went against the equality, non-discrimination, dignity, and liberty guaranteed by the constitution. The Constitution Bench agreed that a gay person had the right to marry and live a dignified life, but it refused to change the current marriage legislation on the grounds that Parliament alone should make such changes. Although many campaigners were upset by the decision, it nevertheless upheld the constitutional safeguards for queer couples and called on the government to take policy steps to defend their rights.
5. Arun Kumar & Sreeja v. Inspector General of Registration & Ors.
In this case, authorities refused to register the marriage between a transgender woman and a cisgender man who were married under Hindu law. The legal challenge was whether transgender women were included in the definition of “bride” under the Hindu Marriage Act. The Madras High Court ruled that transgender women must be included in the definition of “bride” since it must be defined in accordance with constitutional principles. This decision marks a turning point for gender inclusion in marriage law as the Court emphasized that the freedom to marry is a basic right under Article 21.
6. S. Sushma v. Commissioner of Police
In this instance, a lesbian couple petitioned the Madras High Court to shield them from police and family harassment. The main question was whether or not same-sex couples should be allowed to live together unhindered. In addition to providing them with protection, the Court also provided detailed directions for police awareness-raising regarding LGBTQ+ matters and denounced conversion therapy as destructive and unlawful. This decision created a legal position against coercive activities that target sexual orientation and greatly enhanced rights for gay couples.
Conclusion
Following the laying down of Section 377, the legal quest for rights for LGBTQ+ individuals in India is both an unresolved battle and a tremendous constitutional reform. LGBTQ+ people were elevated from the periphery of criminal law to the forefront of the rights discourse after the Supreme Court’s ruling in Navtej Singh Johar (2018) clarified that sexual orientation as well as gender identification are protected traits under the Indian Constitution. Later decisions, such Deepika Singh v. CAT (2022), have expanded the legal definition of “family” to encompass non-traditional arrangements, providing gay people with real welfare and job advantages. In a same vein, high court rulings in cases such as S. Sushma (2021) and Arun Kumar (2019) have given transgender people protection from harassment as well as inclusion in marriage registration.
However, the jurisprudence that emerged after Section 377 also represents a calibrated judicial philosophy, one that actively upholds equality, privacy, and dignity while exercising restraint when it comes to direct legislation on issues like surrogacy, marriage equality, adoption, and inheritance. This strategy is best shown by the Supriyo Chakraborty (2023) ruling, in which the Supreme Court maintained homosexual couples’ constitutional rights to establish relationships but declined to revise marriage laws, instead leaving that responsibility to Parliament. This cautious approach highlights a deeper structural reality: courts cannot revamp the legislative structure that determines civil entitlements on their own, even while they can defend, interpret, and enhance rights.
Therefore, a multifaceted approach will be necessary for the cause of LGBTQ+ people in India to succeed in the future. Whether it’s expanding social programs, preventing discrimination at work, or defending parental rights, litigation must go on to achieve small successes. In order to explicitly recognize same-sex and gender-diverse couples in current laws such as the Hindu Marriage Act, the Special Marriage Act, and adopt and succession rules, persistent legislative effort is necessary. Equally important will be executive policy reform, which includes comprehensive anti-discrimination laws, inclusive healthcare procedures, and prohibitions on damaging practices like conversion therapy.
LGBTQ+ people must be granted full involvement in the civil, social, and economic affairs of the country in addition to freedom from criminal penalties, as required by the constitutional ideals of equality, liberty, and dignity. India’s judicial history after Section 377 shows that while progress is achievable, long-term equality won’t be achieved until the legislative, executive, and judicial institutions work together to remove social prejudice and legal obstacles. With the help of the Constitution’s revolutionary promise and the lived reality of the LGBTQ+ community, the next chapter of the path from decriminalization to true equality will be written in both parliamentary and legal settings.
FAQ’s
Q1. In Navtej Singh Johar v. Union of India (2018), why was the Supreme Court’s ruling important?
By interpreting Section 377 of the IPC, the ruling decriminalized consenting adult same-sex relationships. It confirmed that sexual orientation is a constitutionally protected trait and that making such relationships illegal infringes upon people’s rights to equality, dignity, privacy, and liberty.
Q2. Are same-sex weddings currently recognized by Indian law?
No. In Supriyo Chakraborty v. Union of India (2023), the Supreme Court affirmed gay couples’ rights to establish partnerships, but it left the question up to Parliament and did not expand the definition of marriage under current legislation to include same-sex couples.
Q3. What definition of “family” has the judiciary applied to LGBTQ+ couples?
In Deepika Singh v. CAT (2022), the Supreme Court acknowledged that same-sex and non-traditional unions might be considered “family” in addition to more conventional, heterosexual frameworks. This view is in favour of more widespread access to jobs and welfare benefits.
Q4. What safeguards are in place for transgender individuals in India following the NALSA ruling?
The 2014 NALSA v. Union of India decision acknowledged transgender people as a third gender, upheld their rights to self-identify, and ordered governments to give welfare, healthcare, reservations, and legal recognition. The Transgender Persons (Protection of Rights) Act of 2019 subsequently codified these rights.
Q5. Does India’s existing legislation allow LGBTQ+ couples to adopt children?
Currently, same-sex couples cannot legally adopt each other. LGBTQ+ single people can adopt, but there are still administrative and legal restrictions that restrict queer couples’ parental rights.
Q6. What further legislative and policy measures are required to ensure LGBTQ+ individuals in India have complete equality?
Enforcing anti-discrimination rights in employment and housing, prohibiting damaging treatments like conversion therapy, establishing comprehensive healthcare and education policies, and revising adoption, marriage, and inheritance laws to incorporate same-sex couples are important first steps.
