Author: Rani Prajapat, Ideal Institute of Management and Technology, School of Law
To the Point
Though there has been judicial progression of LGBTQ+ rights in India, the stigma, invisibility and institutional discrimination persist for community members. Legal recognition, through the landmark judgements of Navtej Singh Johar v. Union of India which decriminalized homosexuality, and NALSA v. Union of India which recognized the third gender, alone does not equate to equitable recognition for LGBTQ+ individuals in their everyday lives. The years between judicial decisions has continued to pose significant challenges upon individuals in the LGBTQ+ community. The absence of anti-discrimination laws, marriage and family equality, creates a gap between legal recognition and lived experience. The aim of this article is to consider the moments of legal evolution and further articulate the challenges systemic in society, while suggesting pathways for reform.
Abstract
This article provides a critical analysis of the legal landscape for LGBTQ+ communities in India after the decriminalization of Section 377 IPC. Progressive judicial rulings are a part of general conversation about equality, but stigma, lack of policy action, and lack of statutory protections continue to marginalize sexual and gender minorities. By way of doctrinal analysis and reference to comparative jurisdictions, especially the USA, the article argues the need for codified rights, and related policies, and cultural change, in order to provide for substantive equality of LGBTQ+ persons in India.
Use of Legal Jargon
Legal engagement with LGBTQ+ rights issues in India has raised several foundational constitutional and jurisprudential principles. For example, principles such as constitutional morality, privacy, and dignity have now entered the conversation of interpreting the fundamental rights provided for in Part III of the Indian Constitution. Important decisions from the Supreme Court have reinstated the necessity of interpreting the rights guaranteed by Articles 14, 15, 19, and 21 in a manner that is protective of sexual and gender minorities.
In these recent decisions, the phrase “sexual orientation” has acquired legitimacy as an essential element of identity and is recognised as part of the right to life and personal liberty. Similarly, “gender identity” was legally recognised through both a judicial declaration and statutory protection for transgender persons. The doctrine of constitutional supremacy has also been called upon to annul harmful socially regressive laws, such as Section 377 IPC.
Various legal doctrines, notably “reasonable classification”, “non-arbitrariness”, and “substantive equality” have been used to evaluate legal instruments for discriminatory purposes. Also, the judiciary’s reliance on international human rights instrumentation such as the Yogyakarta Principles and the Universal Declaration of Human Rights (UDHR) provides a comparative avenue for constitutional law, insisting Governments must provide protections under international law to ensure the rights of LGBTQ+ individuals.
The Proof
India’s legal treatment of LGBTQ+ rights has changed considerably over the last 14 years. The Delhi High Court’s decision in Naz Foundation v. Govt. of NCT Delhi (2009) was the first time Section 377 was studied for its constitutionality. The Supreme Court decided to overturn this decision in Suresh Kumar Koushal v. Naz Foundation (2013), where the apex Court noted that while LGBTQ+ rights were starting to be recognized, it refrained from providing direct protection of marriage rights under Article 14 of the Indian Constitution. Instead, the knowing Supreme Court judgement of April 2018 in Navtej Singh Johar v. UOI stated that consenting same-sex relationships were constitutionally protected, whether they were marriages or partnerships. The Supreme Court took further steps in NALSA v. UOI (2014) when it accepted and provided rights to self-identify one’s gender, and directed for affirmative action for transgender persons in India. However, there is still no substantial, codified, anti-discrimination legislation, marriage equality legislation, or recognition of adoption rights for same-sex couples. Section 6 of the Transgender Persons (Protection of Rights) Act, 2019 is confusing and legislatively incomplete does not operate to protect LGBTQ rights. Laws which have inequities of nature will continue to perpetuate structural disadvantage. These inequities are further illustrated in the judgement issued by the Supreme Court in Supriyo v. UOI (2023) where the rights of queer couples to seek recognition of their relationships through marriage is denied on the basis of prior case law (Koushal and Johar). The judgement takes judicial restraint and legally disenfranchises queer couples by reinforcing legislative inaction and the necessity for activism in the face of inequity.
Case Laws
Navtej Singh Johar v. Union of India, (2018) 10 SCC1
Citizens engaging in consensual same sex relationships are not be prosecuted under this statute. The right to dignity, privacy and equality are affectionate rights guaranteed to citizens regardless of sexual orientation under Articles 14, 15, 19(1)(a) and 21 of the Constitution.
NALSA v. Union of India, (2014) 5 SCC438
The Supreme Court granted protection as third gender to transgender persons. The Parliament was also prompted to provide equal opportunity and affirmative welfare focused policy for the transgender population.
Suresh Kumar Koushal v. Naz Foundation, (2013) 1 SCC 1
Section 377 IPC was reinstated and Naz Foundation decision was negated bringing back the rights of a whole population of LGBTQ+ down to negative rights. Later overruled.
Supriyo @ Supriya Chakraborty v. UOI, 2023 INSC 920
Above case refused to recognize any same sex marriage based on interpretation of statute nor recognized same sex marriage within the law but mandated the Parliament to make law.
Deepika Singh v. Central Administration Tribunal, (2022) SCC 1088
Affirmed that people can have other family structures suggesting the courts are beginning to accept a non-traditional family.
Conclusion
India’s legal journey regarding LGBTQ+ rights has yet to be fully realized although it has improved. The passage of judicial decisions such as the decriminalization of Section 377 and gender recognition in the NALSA are meaningful steps towards dignity and equality. However, to achieve true equality you need more than a mere judicial declaration. You need legislation, policy and societal change. This change needs to be inclusive legislation which would cover items such as anti-discrimination legislation, marriage equality legislation, equitable adoption rights, acceptable (gender neutral) references in all statutes. Until law and society synchronize, the struggles of equality will continue for all citizens.
FAQS
1. Is homosexuality legal in India now?
Yes. The Supreme Court in Navtej Singh Johar v. UOI (2018) decriminalized consensual same-sex relationships between adults.
2. Can LGBTQ+ couples marry in India?
No. In Supriyo v. UOI (2023), the Supreme Court declined to recognize same-sex marriages under existing legal frameworks.
3. Are there anti-discrimination laws specific to LGBTQ+ persons?
No. India lacks specific anti-discrimination laws protecting individuals based on sexual orientation or gender identity.
4. Can transgender persons legally change their gender in India?
Yes. Following the NALSA judgment and the Transgender Persons Act, individuals may self-identify their gender and request legal recognition.
5. What is the next legal step for LGBTQ+ rights in India?
Enactment of comprehensive civil rights legislation ensuring marriage equality, adoption rights, and protection from discrimination.
