Published On: February 17th 2026
Authored By: Kanav Kalra
Lovely Professional University, Phagwara
Abstract
India is a nation where every person is presumed to be treated equally, fairly, and without bias. India is a geographical area where people enjoy legal, social, and political rights. However, these rights appear to be non-functional for the LGBTQ+ community. This community faces problems in the form of social stigmas, discrimination, employment bias, and societal pressure. Although the judiciary and Constitution help protect the rights of these marginalized groups, the end result remains uncertain due to social exclusion and neglect. The Transgender Persons Act, 2019[1] was enacted in India to protect their rights, but societal abuse has continued to affect these groups, which is considered the biggest obstacle in the lives of the LGBTQ+ community.
I. Introduction
In recent times, India has grown in every aspect—legal, political, social, and economic in nature. The growth can be seen in infrastructure development, employment generation, advancement of marginalized communities, and other sectors. The Government of India has been working for the betterment of distinguished groups, including LGBTQ+ communities. The government is working to establish their fundamental rights of equality, dignity, and personal liberty, with which the LGBTQ+ community has gained significant visibility and legal recognition. However, while these communities are considered an integral part of today’s society on paper, in reality, social neglect raises the question of whether these groups are truly accepted. Therefore, this contradiction strongly suggests that even though they have gained legal recognition, the concept of their actual inclusion is questionable. As a result, these social stigmas lead to the restriction of opportunities in employment, marriage, and adoption. These social stigmas can lead to mental health issues and feelings of isolation, which result in conditions of anxiety, depression, and even suicidal ideation. Social abuse along with negligence from family, friends, and relatives are also key contributors to mental health challenges. Many recent legal proceedings have concluded that members of the LGBTQ+ community are not capable of adoption and are unable to provide proper upbringing of children. In addition, social acceptance plays a key role in the empowerment of marginalized communities because legal rights alone cannot guarantee safety, belongingness, equality, or liberty.
This article will explore the discrimination faced by the LGBTQ+ community in recent times despite the existence of evolved rules and regulations for the community, and will help readers understand the position of LGBTQ+ individuals in the present era.
II. What is the LGBTQ+ Community?
The term LGBTQ+ can be defined as individuals who are homosexual in nature—persons who have attraction toward the same sex or have sexual desire for both male and female individuals. This has given rise to same-sex relationships, which are becoming more common nowadays. The concept of LGBTQ+ identity was initiated post-World War II through the “homophile” movement in the 1950s, gaining noticeable recognition.
The concept was further categorized as Gay (a man loving a man), Lesbian (a female loving a female), Bisexual (a person loving both male and female individuals), Transgender (a person whose gender identity differs from the sex assigned at birth), and many more who do not identify themselves as strictly male or female.
III. Problems Confronted by the LGBTQ+ Community in Recent Times
The evolution of the LGBTQ+ community has been revolutionary, creating a stronger position in society. Despite having gained recognition, they face certain problems:
A. Psychological Impact
Due to excessive societal pressure, the LGBTQ+ community faces significant psychological imbalance and impact, which leads to conditions of anxiety, depression, and stress. This is caused by societal abuse and neglect, which they undergo repeatedly, leaving them feeling alone and separated from society, leading to thoughts of suicide and engagement in harmful behaviors.
B. Lack of Marital Rights
Although the LGBTQ+ community has gained significant recognition, legal recognition of same-sex marriage is still under question. As of 2025, same-sex marriage is not considered legal in India.[2] In 2023, the Supreme Court of India ruled against marriage rights in Supriyo @ Supriya Chakraborty v. Union of India,[3] stating that it is for Parliament to decide whether to grant equal liberty and benefits comparable to heterosexual marriage.
C. Adoption Rights
According to the guidelines established by the Supreme Court in 2023, same-sex marriage is considered legally invalid; therefore, adoption rights are not provided to same-sex parents, as they are considered incapable of raising a child. This stems from societal ideologies that same-sex couples cannot provide the love, affection, and responsibilities that both parents of opposite sexes can fulfill.
D. Societal Exclusion
Even though they are recognized globally, the traditional sentiments of society prevail over modern viewpoints, leading to the exclusion of the marginalized community and making them separate from activities undertaken by society.
E. Identity and Certification Issues
The LGBTQ+ community faces identification and certification issues, which cause delay, humiliation, and harassment. This also causes the violation of the principle of self-identification, which was recognized in National Legal Services Authority v. Union of India.[4]
F. Weak Anti-Discriminatory Protection
The Transgender Persons Act, 2019 was established to protect the LGBTQ+ community, but this Act prohibits discrimination without providing clear penalties or an independent grievance redressal body, which leads to continued discrimination in employment, housing, and education.
IV. Related Case Laws
There have been various reforms for the protection of the LGBTQ+ community, but certain cases raise questions about whether recognition of the group is a reality or merely an assumption.
A. K Prithika Yashini v. Central Adoption Resource Authority[5]
Court: Madras High Court
Year: 2025
Issue: The major issue in the proceedings was that the petitioner was denied the right to adopt a child because existing adoption laws under the Juvenile Justice (Care and Protection of Children) Act, 2015[6] do not recognize transgender persons as eligible to adopt a child.
Findings: The court acknowledged the constitutional rights of transgender persons but did not provide relief, stating that the law does not permit adoption by transgender persons without legislative amendment.
Significance: This case demonstrates that transgender individuals are discriminated against on the basis of gender identity, denying the family-forming rights available to heterosexual individuals.
B. Jane Kaushik v. Union of India[7]
Court: Supreme Court of India
Year: 2025
Issue: The issue raised in this case was that a transgender employee faced institutional harassment, lack of grievance redressal, and unfavorable working conditions.
Findings: The Court found that the employee faced discrimination based on gender identity, thereby violating the fundamental rights of equality and opportunity to public employment. It was also noted that the state government failed to implement the Transgender Persons Act, 2019 effectively.
Judgment: The bench pronounced the judgment in favor of Jane Kaushik, stating that denial, termination, or withdrawal of employment on the basis of gender identity is unconstitutional as it violates Articles 14, 15, 16, and 21 of the Constitution of India. The Court found the state government responsible for the non-effective implementation of the Transgender Persons Act, 2019, and the petitioner was granted compensation for the harm suffered.
V. Global Position of the LGBTQ+ Community
The global position of the LGBTQ+ community in contrast to India is more promising and robust. Outside the geographical boundaries of India, the LGBTQ+ community has greater recognition and acceptance, where governments promote and fulfill the legal rights of these communities.
A. United States of America
The legal position of the LGBTQ+ community in comparison to India is much more favorable, as the USA recognizes and promotes same-sex marriage and provides secure adoption rights for children. The United States has strong anti-discriminatory protections for employment, housing, and education. In addition, gender identity is protected under federal civil rights law. With this, the government has helped these communities gain significant respect in society.
B. United Kingdom
The government of the United Kingdom has worked extensively for the recognition of the LGBTQ+ community. For the protection of these communities, the government has promoted and legalized same-sex marriage and has provided equality among all communities in the country through comprehensive Equality Act protections, which strongly suggests that this country has generally high public acceptance for this community.
C. France
France has protected the rights of the LGBTQ+ community by making same-sex marriage and adoption legal and making the community recognizable in society, especially in urban areas. France has also established anti-discriminatory legal frameworks to protect the legal rights of the community.
VI. Suggestions to Overcome the Problems
It is important to address these problems with suitable suggestions. Below are some measures that could be used to bridge the gap:
A. Amendment to Existing Laws
There should be upgrades to the rules and regulations provided in the Transgender Persons Act, 2019. Clear rules should be established regarding the availability of healthcare, education, and employment. There should be no discrimination, which is prevalent in recent times.
B. Strong Legal Recognition
There should be enactment of comprehensive anti-discriminatory laws covering housing, employment, and public spaces. Reforms regarding legal recognition of same-sex marriage and adoption should be made.
C. Social Acceptance and Family Support
Nationwide awareness campaigns should be conducted to counter myths and stereotypes. Families should be encouraged to seek counseling regarding LGBTQ+ issues. Media, films, and literature should be used to normalize the LGBTQ+ community.
D. Protection from Violence and Hate Crimes
There should be recognition of hate crimes based on gender identity and sexual orientation. Safe shelters should be provided for LGBTQ+ individuals. Fast-track courts should be established for violence-related cases involving the LGBTQ+ community.
VII. Conclusion
The LGBTQ+ community should be considered an integral part of society. They should not be neglected on the basis of their identity or orientation. They should be treated equally without any discrimination, and fair opportunities in employment, healthcare, and education should be provided. Necessary amendments should be enacted to protect them from the societal abuse and legal stagnation they face. It is the moral duty of society to accept and coexist with these individuals as we do with all other members of society.
References
[1] Transgender Persons (Protection of Rights) Act, No. 40 of 2019, INDIA CODE (2019).
[2] Drishti IAS, SC Dismissed Review Petition on Same-Sex Marriage, DAILY NEWS ANALYSIS (Jan. 14, 2025), https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-dismissed-review-petition-on-same-sex-marriage.
[3] Supriyo @ Supriya Chakraborty v. Union of India, (2023) 10 SCC 1 (India).
[4] National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India).
[5] K Prithika Yashini v. Central Adoption Resource Authority, W.P. No. 264 of 2025 (Madras High Court, Jan. 2025).
[6] Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2015, INDIA CODE (2015).
[7] Jane Kaushik v. Union of India, (2025) (Supreme Court of India)
Published On: February 17th 2026
Authored By: Saumya Mishra
NALSAR University of Law, Hyderabad
Abstract
The provisions for initiation of insolvency proceedings against the personal guarantors of corporate debtors, under the IBC, have come into force from 1st December 2019, via a notification from the Government of India, published on 15th November 2019.[1] This article will discuss the invocation of the guarantee not as a formality under the contract, but as a condition precedent for initiation of proceedings under Section 95 of the Insolvency and Bankruptcy Code, 2016 (IBC). In the course of analysing the impact that the recent judgments of NCLAT in the cases of Deepak Kumar Singhania & Saranga A. Aggarwal of 2025 would have, the article concludes that invocation of a guarantee is the fulcrum on which the insolvency proceedings against a personal guarantor revolve and that these judgments offer an abundance of illustrations of the application of the various rules and forms for deciding whether a personal guarantor is in liability in a debt.
Introduction
One of the core objectives of the personal guarantors’ inclusion under the Insolvency and Bankruptcy Code of 2016 was to promote credit discipline, and more importantly to prevent a personal guarantor from avoiding their responsibilities when a corporate debtor defaults. Section 95 of the IBC provides that a creditor may file an application for initiating an insolvency resolution process against the personal guarantor. At first glance, the provision appears to be merely procedural. Nonetheless, if we examine it alongside the Insolvency and Bankruptcy (Application to adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules 2019[2] (PGIRP Rules, 2019), substantive questions that are more profound and critical arise. That is, does the liability arise automatically on the corporate debtor or is it only upon the invocation of the guarantee? Can a statutory demand notice take the place of contractual invocation? And, at what point does a guarantor become a debtor under the Code?
These are not mere theoretical questions but in fact they form the core of the maintainability of a Section 95 application before the Adjudicating Authority. Recent appellate rulings have started to illuminate this area, positioning the invocation of the guarantee as the focal point of the investigation.
The Legal Structures That Regulate Personal Guarantors
- The Applicability of Part III to Personal Guarantors
Under the provisions of part III of the IBC, the personal guarantors of the corporate debtors are expressly subject to the IBC as stated in Section 2(e) of the IBC, and when read in conjunction with Section 60 of the IBC, it allows for the adjudication of the insolvency of the personal guarantors through the National Company Law Tribunal (NCLT). This ensures if there are pending insolvency proceedings against a corporate debtor as well, both kinds of insolvency proceedings will occur in front of the same authority, which is the NCLT.
- The Procedural Framework and Section 95 of the IBC
A creditor may initiate an insolvency resolution process in respect of a personal guarantor pursuant to Section 95 of the IBC. While, subsection (4) of Section 95 of the IBC requires that the application for such initiation include certain specified information and documents whereas subsection (7) of Section 95 of the IBC delegates specification of these requirements to subordinate legislation. The PGIRP Rules, 2019, were promulgated as a result of this delegation.
The creditor must give a demand notice to the personal guarantor in the correct format as prescribed by Rule 7(1) of the PGIRP Rules. The date of the default must be included in Form B. Prior to issuing the Rule 7(1) demand notice, a default must exist which is attributed to the personal guarantor.
Definitional Issues: Guarantor and the Additional Meaning of Personal Guarantor.
A personal Guarantor is described in Sec 5(22) of the IBC as an individual who provides for a personal Guarantee of a Corporate Debtor (CD). This description is to be read into the Code unless the context indicates differently.
Rule 3(1)(e) of the PGIRP Rules is especially important when it comes to Section 95 proceedings. As per the rule, a debtor who is a personal guarantor to a corporate debtor and whose personal guarantee has been invoked by the creditor but has not paid anything on that guarantee, in whole or in part, is referred to as a “guarantor”. This means that the personal guarantor must have provided a personal guarantee and such guarantee must have been invoked by the creditor in order to qualify as a guarantor.
Section 5(22) of the IBC is found in Part II, and Section 95 of the IBC is found in part III. Because the term under Section 5(22) might not apply, the definition given in Rule 3(1)(e) of the PGIRP Rules, 2019 must be taken into consideration in order to start the insolvency process against the Personal Guarantor.[3]
Crystallisation of Liability and Invocation of Personal Guarantee Under the IBC
- Definition of Debt and Default Under the IBC
Under the Insolvency and Bankruptcy Code (IBC), ‘debt’ and ‘default’ are defined in sections 3(11) and 3(12) respectively, and a ‘debt’ becomes a ‘default’ when the debt has become due and payable and remains unpaid. A ‘debt’ is ‘defaulted’ upon the occurrence of a default, which occurs when the obligations of the person making the guarantee under the guarantee become due (i.e. when liability arises from an invocation), meaning that the personal guarantee becomes a liability only upon an invocation.
A personal guarantee has contingent liabilities until the contingencies of the deed of guarantee are satisfied. Therefore, for the purposes of establishing liability for a personal guarantee, the personal guarantor will normally only have liability once there has been a formal demand or notice of recall against the person who made the personal guarantee, unless specified in the actual deed.
- Clarifying Judicial Authority in Deepak Kumar Singhania
The decision made by the NCLAT in the case of State Bank of India v Deepak Kumar Singhania deals with an application filed under section 95 without first having invoked the relevant guarantee. The Tribunal ruled that any default by a personal guarantor must exist on the date a demand notice in Form B was issued to the personal guarantor.[4] Defaults are only those that occur under the financial obligations of the personal guarantor; the financial obligations of the personal guarantor arise only at the time the guarantee is invoked as specified in the guarantee deed.
The Tribunal rejected the argument that the word “ and” in Rule 3(1)(e) should be read as “or”. The Tribunal held that reading the word “and” to mean “or” would eliminate the distinction established between the liabilities of the personal guarantor on a contingency basis and those liabilities that are actual liabilities, which would conflict with the entire statutory scheme contained in the IBC.[5]
Form B and the Statutory Demand Limitations
Many creditors have contended that Form B is essentially a statutory demand notice from a creditor to their debtor, hence it serves to automatically invoke the guarantee. This interpretation was expressly rejected in Deepak Kumar Singhania by the tribunal.
In the tribunal’s view in , Form B does not constitute the invocation of a personal guarantor’s guarantee. A default by a personal guarantor has to be present as on the date the demand notice in Form B has been issued, and that any liability to a personal guarantor only arises after invocation of the guarantee in accordance with Deed of Guarantee. Until the guarantee is invoked, there is no debt owed by the personal guarantor, thus there cannot be a default.[6]
The Date of Default & Whether Any Invocation Is Involved.
The decision made in the case of Saranga A. Aggarwal v. State Bank of India adds an important procedural component to the issue presented. The creditor in that case was asking that the date of default be amended in a Section 95 application, based on a recall notice that allegedly constituted an invocation of the guarantee. The NCLAT allowed for the amendment, stressing that amendments to applications under Section 95, as long as they are necessary for proper adjudication, may be allowed. However, the Tribunal was careful to explain that allowing the amendment did not automatically mean that the guarantee had been validly invoked; the question of whether the guarantee was validly invoked is still left open for final determination on the merits, including the considerations of limitation.[7]
Most importantly, the Tribunal determined that it is an established law that no action under Section 95 may be started without the personal guarantor’s deed of guarantee being invoked. It is also generally established that invocation of guarantee must precede Form B demand notice.[8]
Conclusion
The requirement imposed by appellate tribunals to invoke the guarantee before the commencement of the proceedings demonstrates the insolvency system’s response to real financial problems rather than simply creating a liability by way of the use of processes.
Invocation of the guarantee is a necessary legal step; it changes the type of obligation that a guarantor has (a contingent obligation) into an enforceable debt. The personal guarantor will not be included in Section 95 until the invocation occurs as per the guarantee deed, emphasising the need for sound contractual actions to provide greater creditability to personal guarantor insolvency processes and to preserve the integrity of the Code’s structure.
References
[1]Notification S.O. 4126(E), Insolvency and Bankruptcy Code, 2016 (Nov. 15, 2019), https://ibbi.gov.in/uploads/legalframwork/1fb8c2b785f35a5126c58a2e567be921.pdf
[2]Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019, G.S.R. 854(E) (India), Nov. 15, 2019, https://ibbi.gov.in/uploads/legalframwork/8e0ab9331455200b402d91257113805c.pd
[3]State Bank of India v. Deepak Kumar Singhania, (2025) https://nclat.nic.in/display-board/view_order
[4]Id.
[5]Id.
[6]Id.
[7]Saranga A. Aggarwal v. State Bank of India, Company Appeal (AT) (Insolvency) No. 1788 of 2025, Nat’l Co. L. App. Trib., Principal Bench, New Delhi (Dec. 19, 2025), https://indiankanoon.org/doc/134747385/
[8]Id.
