Author: Aditya Naduvinamani, KLE Law College, Bengaluru
To the Point
The Indian Judiciary has been a voice that has shaped and changed the face of LGBTQ rights. The act of intimacy, love and choice was initially not recognised and was criminalised. But the cautious decriminalisation of the same played a pivotal role by redefining same-sex and queer identities within the legal arena. Be it the Supreme Court in Suresh Koushal verdict or Navtej Singh Johar v Union of India, Indian Judiciary has brought radical shifts. Though the community fought for recognition and identity initially, the shift was later aiming for acceptance. The Indian Judiciary’s stance has seen changes- from denying and criminalisation to recognition and protection. Social reform movements viz., awareness drives, pride parades, stc and the very act of questioning the constitutionality of verdicts like Queen Empress v Khairati and Nawshirwan v Emperor have collectively brought the changes required in the mindset of Indian Judiciary. The words ‘eunuch’, ‘sodomy’, ‘ hijra’ and many other terms have been time and again brought in court of law and redefined as many times as needed. This article aims to bring out the evolution of Indian Judiciary’s view and take on Lesbian, Gay, Bisexual, Transgender, Queer community through colonial era and post colonial era.
Abstract
The relationship between the LGBTQ and Judiciary is complex but is evolving. Though the Judiciary has struggled picking between dichotomy of empathy and contempt. This article delves into analysing this evolution by two streams of timelines, colonial and post-colonial eras. Beginning the colonial times with the criminalising same-sex conduct by Section 377 of the Indian Penal Code, 1860 and studying the cases of Khairati and Nowshirwan and moving to Postcolonial times with Naz Foundation and Suresh Koushal cases and ultimately Navtej Singh case. The shift in narrative from persecution, resistance to constitutional morality and promises of equality and personal liberty has been observed and is highlighted in this article. By skimming through relevant case laws and potential changes, this article aims to give a comprehensive overview of LGBTQ rights and Indian setting of law.
Use of Legal Jargon
The issue with same sex individuals and their rights came with Section 377 of the Indian Penal Code that criminalised homosexual intercourse as an “unnatural sex”. Intercourse between two individuals of the same gender was deemed as immoral, unnatural and an act of perversity. The eras- colonial and modern or say the duration from 1884 and before to 2025 has been a tremendous one for the community which was not accepted and was penalised to being recognised and empathised on. The colonial era marked the LGBTQ under criminal laws and denied them their rights. An understanding of cases of Queen Emperor v Khairati and Nowshirwan v Emperor showcase how Colonial laws treated LGBTQ.
Queen Emperor v Khairati I.L.R. 6 All 205.:
This case was the first reported case for the use of Section 377 against a person described by the court as a ‘eunuch.’ Ironically the judge for this case, Justice Straight, adjudicated whether habitually wearing women’s clothing by a man was an offence under Section 377. The medical reports of Khairati however revealed syphilis and regular sodomite patterns. The verdict said that the man wasn’t a eunuch per se but was arrested by policemen when found singing with another woman of a certain household. The law criminalised “unnatural” sexual acts and not identities, in its operation, Section 377 targeted the community, persecuting them based on what they perceived to be, and not because of what they did. Khairati was accused of sodomy and was arrested but later acquitted but the police force was asked to keep such “disgusted practices” in check.
Section 377 was seen as a weapon to harass and physically assault Hijras and Transgenders.
Intolerance towards the nation’s transgender people continued after the judgement.
Nowshirwan v Emperor AIR 1934 Sind 206
Nowshirwan was accused of voluntarily having carnal intercourse with Ratansi, against the order of nature. Though the act wasn’t performed, an attempt was made. The Court interpreted Section 377 and Section 511 of IPC and hence sentenced a fine of Rs. 100 and imprisonment of one month.
The case was argued as the parties being consenting and attempting voluntary carnal intercourse. The case was twisted and turned into a play of desire and perversity. Ratansi was seen as both a victim and an immoral individual. Their story remains as an emblem of judicial poverty in terms of liberties.
The colonial era thus came to end with the making of the Constitution in 1950. The Constitution promised equality and rights to liberty. The social ostracization of LGBTQ continued for decades even after Independence. But through constitutional interpretations and judgements the community grew to be legally recognised and protected. This gradual awakening came by the judgments of Naz Foundation v Government of NCT of Delhi 160 (2009) 277 and Suresh Kumar Koushal v Naz Foundation raised important questions that turned out as steps towards progress. These judgements were key to view LGBTQ as an individual entity and identify their rights and thoughts against criminalising acts of personal choice and existence. Naz Foundation along with Queer community rallying relentlessly against persecution due to Section 377 led to the turning of eyeballs. Be it the arrest of gay men in Lucknow (2006) or the arrest of HIV/AIDS workers of Lucknow (2001), were important pieces of struggle against injustice and dehumanisation of the community. The constitutionality of Section 377 was questioned time and again to bring the necessary changes. Though in the Supreme Court, the community was put into the miniscule minority category and hence wasn’t given protection against Section 377, progress was still evident. The Judgements that followed viz., National Legal Services Authority v Union of India (2014) and Navtej Singh Johar v Union of India (2018) were key judgments that made the right space for the community. The NALSA judgment gave transgenders the recognition of “third gender” and Navtej Singh Johar case struck down Section 377.
Conclusion
The story of LGBTQ rights in India isn’t just a chronicle, but a story full of pain and hopes. When Section 377 came into existence it just didn’t criminalise private acts of love but years old exclusion was sensitised. No one ever got to question it. Though Independence came in 1947, independence for the community was a myth. It was only after the Navtej case that they received their long awaited independence, Centuries of exclusion and discrimination. Shunning same-sex couples and individuals and queer persons and penalising something so basic and of identity wasn’t right and it was the only way to remove it- struck down Section 377. The Indian Judiciary via their judgements has tried bringing in necessary changes and inculcates individuality and exclude societal wrongs from the laws by the constitutional promises of equality and liberty.
FAQS
1. How has the Indian judiciary helped shape LGBTQ rights?
The Indian courts have been instrumental in giving voice to the LGBTQ community, especially in the absence of strong legislative support. Over time, the judiciary has shifted from silence to standing firmly for values like equality, dignity, and freedom—recognizing that LGBTQ individuals deserve the same constitutional rights as everyone else.
2. Why was Section 377 such a big deal?
Section 377, introduced during British colonial rule, made same-sex relationships a criminal offence. It wasn’t just a legal issue—it was a tool of fear, used to harass and marginalize queer people for over 150 years. Its partial repeal in 2018 wasn’t just about decriminalization; it was about reclaiming dignity and humanity.
3. What are the major court cases that moved the needle on LGBTQ rights?
Several court rulings changed the landscape:
1. Naz Foundation (2009) – First real win; decriminalized same-sex acts temporarily.
2. Koushal v. Naz Foundation (2013) – A major setback; Section 377 reinstated.
3. NALSA (2014) – A historic recognition of transgender people as a third gender.
4. Puttaswamy (2017) – Privacy was declared a fundamental right, including sexual orientation.
5. Navtej Johar (2018) – Section 377 finally struck down for good.
6. Supriyo (2023) – Same-sex marriage not recognized yet, but affirmed LGBTQ relationships.
4. Can LGBTQ couples legally marry in India now?
Not yet. In 2023, the Supreme Court said that legalizing same-sex marriage is something Parliament should decide. While the court acknowledged the right to love and live freely, it stopped short of granting full marriage equality.
5. Despite legal progress, what problems do LGBTQ people still face?
Legal victories haven’t erased real-world struggles. Many still face rejection by families, harassment in public and at work, and no access to basic rights like marriage, adoption, or inheritance. The gap between what the law says and what society accepts remains wide.
6. Have the courts helped shift how society views LGBTQ issues?
Yes, to a large extent. Judicial decisions—especially NALSA and Navtej Johar—have helped push public conversations forward. These rulings didn’t just change laws; they challenged deeply held biases and forced institutions to reckon with inclusion.
7. What else needs to happen for full equality?
We need laws that do more than just stop discrimination—they should actively ensure equality. This means legalizing same-sex marriage, protecting queer people at work and in schools, making healthcare gender-inclusive, and educating society so that acceptance is the norm, not the exception.
