LGBTQ+ RIGHTS

Abstract

This article examines the evolution of LGBTQ+ rights in India, tracing the development from ancient acceptance through colonial criminalization to contemporary legal recognition. It discusses the concept of LGBTQ+ identity, the constitutional rights afforded to this community, and the landmark judicial decisions that have shaped the current legal landscape. The article analyzes why same-sex marriage remains unrecognized in India despite significant progress in decriminalizing homosexuality and protecting LGBTQ+ rights. Using doctrinal and theoretical methodologies, this piece explores the constitutional provisions supporting these rights and examines key Supreme Court and High Court judgments that form the foundation of LGBTQ+ rights recognition in India.

Introduction

The concept of LGBTQ+ identity is not new. Different gender identities existed in ancient civilizations and were often accepted by society, such as in Greece, Rome, and various indigenous societies. During the 18th and 19th centuries, colonialism and conservative religious approaches criminalized homosexuality in different parts of the world. The Stonewall Riots of 1969 in the USA gave rise to the modern LGBTQ+ rights movement in the 20th century. These riots catalyzed the decriminalization of homosexuality in many countries, and nations began to recognize LGBTQ+ rights.

Ancient India reflected support for diverse gender identities through temple carvings and texts like the Kamasutra. The third gender—Hijra—has been part of Indian society for centuries. It was British colonial rule that criminalized homosexuality by introducing Section 377 into the Indian Penal Code, 1860.[1] After Independence, the struggle for LGBTQ+ rights began in earnest. The first major legal move came when a public interest litigation was filed by the Naz Foundation challenging Section 377 in 2001. The Delhi High Court delivered its judgment in Naz Foundation v. Government of NCT of Delhi,[2] decriminalizing consensual homosexual acts between adults. This case initiated a systematic legal debate, with subsequent cases both supporting and opposing the recognition of LGBTQ+ rights. In India, through the persistent efforts of the judiciary, these rights are now well-recognized and grounded in constitutional principles. However, the fight continues, as same-sex marriage remains illegal in India.

LGBTQ+: Meaning, Rights, and Challenges

I. Meaning
LGBTQ+ stands for Lesbian, Gay, Bisexual, Transgender, and Queer. The “+” symbol encompasses other gender identities such as intersex, asexual, pansexual, non-binary, and genderfluid, signifying identities that are not explicitly included in the letters of LGBTQ+. LGBTQ+ is an umbrella term representing the inclusion of different sexual orientations and gender identities.

II. Rights
The LGBTQ+ community, like any other community, requires legal protections to ensure their dignity and safety. Since the beginning of the fight for recognition in India, the community has demanded several fundamental rights—not extraordinary privileges, but basic human rights that every person holds simply by virtue of being human. These rights include:

1. Non-discrimination
2. Physical integrity
3. Social rights
4. Legal recognition
5. Political recognition

These rights are ensured under Articles 14 (Right to Equality), 15 (Non-Discrimination), 19 (Freedom of Expression), and 21 (Right to Life and Personal Liberty) of the Constitution of India.[3]

III. Challenges
Countries that do not recognize LGBTQ+ rights often record high crime rates against LGBTQ+ individuals. Members of this community face numerous challenges in such jurisdictions, including:

1. Social stigma and discrimination
2. Illegality of same-sex marriage
3. Violence, harassment, and police abuse
4. Mental health challenges
5. Educational exclusion and employment discrimination

Landmark Judgments

The following judicial decisions have been instrumental in shaping LGBTQ+ rights in India:

Naz Foundation v. Government of NCT of Delhi[4]
This case challenged the constitutional validity of Section 377 of the Indian Penal Code. The Delhi High Court held that Section 377 was unconstitutional insofar as it criminalized consensual sexual acts between adults in private. The court found that the provision violated Articles 14, 15, and 21 of the Constitution.

This was the first case to grant judicial recognition to LGBTQ+ rights in India. The court held that sexual orientation is an essential facet of human dignity and privacy, applying the principle of Transformative Constitutionalism. However, this judgment was subsequently overruled by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation.

Suresh Kumar Koushal v. Naz Foundation[5]
In this case, the Supreme Court re-criminalized homosexuality and upheld the validity of Section 377. The court stated that LGBTQ+ persons constituted a “minuscule minority.” This judgment was widely criticized, and nationwide activism arose demanding legal reform. The judgment was eventually overruled in Navtej Singh Johar v. Union of India.

Navtej Singh Johar v. Union of India[6]
The Supreme Court concluded that Section 377 was unconstitutional insofar as it criminalized consensual sexual acts between adults, thereby offering constitutional protection to LGBTQ+ individuals. The court held that the Constitution protects individual autonomy, dignity, and identity, and that discrimination on the basis of sexual orientation violates Article 15. This landmark judgment prioritized constitutional morality over social morality.

National Legal Services Authority v. Union of India[7]
In this case, transgender persons were granted legal recognition and affirmed the right to self-identify their gender. The court issued important guidelines directing the Central and State governments to:

i. Grant legal recognition to transgender persons
ii. Provide reservations in education and public employment
iii. Ensure access to healthcare, sanitation, and public facilities
iv. Frame social welfare schemes

Deepika Singh v. Central Administrative Tribunal[8]
This judgment recognized atypical families, including queer relationships. The court stated that the concept of family cannot be limited to heterosexual marital units. This was an important step toward the recognition of queer families in India.

Why Same-Sex Marriage Remains Illegal in India

Despite these landmark judgments recognizing LGBTQ+ rights, same-sex marriage remains illegal in India. The Supreme Court addressed this issue in Supriyo @ Supriya Chakraborty v. Union of India.[9] The question before the court was whether it could recognize and legalize same-sex marriage by:

1. Reading gender-neutral terms into existing marriage laws, or
2. Declaring a fundamental right to marry a person of one’s choice, regardless of sex

The Supreme Court provided the following reasons for not allowing same-sex marriage in India:

1. No Fundamental Right to Marry
The court held that no such right exists in the Constitution of India. Marriage is a statutory right governed by legislation, and the absence of legal recognition of same-sex marriage does not violate Article 21.

2. Separation of Powers (Judicial Restraint)
The court ruled that creating or defining marriage amounts to judicial legislation. The court cannot rewrite marriage laws by substituting terms like “husband” and “wife.” Such changes fall within the exclusive domain of Parliament. Marriage laws are intentionally framed as heterosexual institutions, and Parliament consciously used gender-specific language. Therefore, the court cannot alter the basic structure of these statutes.

3. Recognition of Relationships Is Not Equal to Recognition of Marriage
The court acknowledged that same-sex couples have a right to cohabit and form relationships, but this right cannot be automatically translated into marriage rights. The right to relationships protects dignity but does not mandate marriage recognition.

4. Constitutional Morality Has Limits
The court held that constitutional morality cannot be used to create new social institutions like marriage. While constitutional values protect LGBTQ+ rights, the institution of marriage requires legislative action.

Conclusion

The LGBTQ+ community has faced numerous challenges throughout history, from issues related to self-identity to broader social and economic concerns. Addressing these problems has been essential, as the LGBTQ+ community is an integral part of Indian society. The courts have played a crucial role in ensuring legal rights for LGBTQ+ individuals, ensuring that their private choices do not render them criminals. This was achieved by declaring Section 377 of the Indian Penal Code unconstitutional to the extent that it criminalized consensual acts between adults.

However, the legal struggle continues. The community continues to demand legal recognition for same-sex marriages, and the judiciary is working to ensure that LGBTQ+ rights are not infringed upon and are adequately protected. Significant changes have occurred, with new rights being extended to the LGBTQ+ community. While progress has been made in ensuring that LGBTQ+ individuals enjoy equal status in many respects, the fight for full equality—including marriage equality—remains ongoing.

References

[1] Indian Penal Code, No. 45 of 1860, § 377, INDIA CODE (1860). 
[2] Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277 (Del). 
[3] INDIA CONST. arts. 14, 15, 19, 21. 
[4] Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277 (Del). 
[5] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. 
[6] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. 
[7] National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 
[8] Deepika Singh v. Central Administrative Tribunal, (2023) 6 SCC 1. 
[9] Supriyo @ Supriya Chakraborty v. Union of India, (2023) 8 SCC 1.