The Role of the Judiciary In Advancing LGBTQIA+ Rights

Abstract

Every individual must be treated equally, because every person has their own inherent worth. Anything that reduces a person’s dignity is wrong, since it violates the principle of equality and creates room for discrimination. In a country like India, where people are often quick to judge one another on the basis of sexual identity rather than any legitimate, intelligible differentia, homosexuality remains a deeply contested subject. This article assesses the judiciary’s role in protecting the rights of the LGBTQIA+ community. It begins with the historical background of the community’s acceptance and the constitutional provisions that govern it, before examining the current state of LGBTQIA+ rights in India. The article also explores cultural evidence of long-standing acknowledgment and acceptance of the LGBTQIA+ community — for example, Hindu texts such as the Kamasutra and the Manusmriti recognise a “third nature” and same-sex relationships as part of human sexuality.
The judiciary has played a central role in advancing the rights of the LGBT community under the Constitution of India. LGBT petitioners approached the higher courts to decriminalise consensual adult homosexual relations, ultimately securing the decriminalisation of Section 377 of the Indian Penal Code, which had previously penalised same-sex relations between adults. The community also approached the Supreme Court to assert the rights of transgender persons. Four decisions are of particular importance: Naz Foundation v. Government of NCT of Delhi and Ors., Suresh Kumar Koushal v. Naz Foundation, National Legal Services Authority (NALSA) v. Union of India, and Navtej Singh Johar v. Union of India. The article concludes that judicial engagement, legislative reform, and public awareness together form the essential pillars for advancing LGBTQIA+ rights — with the judiciary working to remove prejudice, promote education, and uphold equality and non-discrimination for all individuals, regardless of sexual orientation or gender identity.

Keywords: LGBTQIA+, Human Rights, Discrimination, Homosexuality, Right to Freedom, Transgender Rights

Introduction

“The greatest sadness one can have is the pain of being disliked,” said transgender rights activist Laxmi Narayan Tripathi.
Securing rights for LGBTQIA+ people is a global human rights struggle. The community has long suffered from a lack of recognition, equality, and legal protection afforded to other genders. The concept of human rights rests on the principle that all people — irrespective of appearance, colour, sexual orientation, or gender identity — should be treated equally before the law. Any act or attitude that questions a person’s dignity infringes this principle of equality and fosters discrimination in society. The term LGBTQIA+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual, commonly referred to as the “queer community.”

Definitions

Lesbian — A woman who is sexually attracted to women.
Gay — A man who is sexually attracted to men.
Bisexual — A person who is sexually attracted to more than one gender.
Transgender — An umbrella term encompassing a diversity of gender identities and expressions, including bi-gender and transsexual identities.
Queer — A person attracted to multiple genders, or whose gender identity or sexuality does not conform to conventional societal norms.
Intersex — A general term for a range of conditions in which a person is born with reproductive or sexual anatomy that does not fit typical definitions of “male” or “female.”
Asexual — The lack of sexual attraction to others, or a low or absent desire for sexual activity.[1]

Historical Background

There are clear traces of the LGBTQ community throughout Indian history. The androgynous form of Lord Shiva and Parvati, known as “Ardhanarishvara,” symbolises the fluidity of gender and is often cited as evidence of the community’s ancient presence.[2] Likewise, the deity Vishnu’s transformation into the female form “Mohini” reflects an early acknowledgment of gender fluidity.
Another significant example appears in Ved Vyasa’s epic, the Mahabharata,[3] which features the character “Shikhandi” — described as “neither man nor woman” — one of the most widely discussed figures associated with the LGBTQ community. Shikhandi was born with female sexual organs but was raised as a son by his father, King Drupada. The epic also mentions Brihannala, the identity assumed by the Pandava prince Arjuna while serving as a dance teacher at King Virata’s court.
According to mythologist Devdutt Pattanaik,[4] ancient India recognised more than fifty terms for non-heterosexual genders and sexualities — Sanskrit words such as prakriti, napunsaka, kliba, kinnara, pedi, and pandaka — found across the Vedas, Itihasas, Puranas, and the Kama-shastra.
Ancient Hindu texts on love and sexuality, including the Kamasutra and the Manusmriti, also describe same-sex desire, treating it as a natural part of human sexuality and referring to a “Tritiya-Prakriti” (third nature) that does not conform to binary gender norms.
The historical record is not confined to Hindu tradition. The Tuzuk-i-Baburi refers to Emperor Babur’s affection for a young boy at his court, and homosexuality appears to have been an accepted norm within the courts of the Pathans and Nawabs. A Hyderabad resident, Dargah Quli Khan, recorded observations of homosexual relationships in Delhi’s culture in his diary, Muraqqa-e-Dehli. The Chandela rulers’ famed Khajuraho temple sculptures similarly depict same-sex intimacy, including a scene on the temple’s southern wall showing a woman engaged in intercourse with a person of a third gender.
It was the British administrator Lord Macaulay, principal drafter of the Indian Penal Code of 1860, who introduced Section 377, criminalising “carnal intercourse against the order of nature.”

A Brief History of the Criminalisation of Homosexuality

Section 377 of the Indian Penal Code (1860) criminalised homosexual acts, modelled on British colonial law — the Offences Against the Person Act, 1861 — which was extended to most British colonies, including India and Ireland. The provision has long been used to threaten and harass gay men, both physically and psychologically; even today, police have reportedly used the law to harass and blackmail gay men, despite blackmail itself being a criminal offence. The section was also historically invoked against women who eloped together or whose same-sex relationships became known.

The case of Tarun Kumar (Tarulata)

Tarun Kumar, formerly Tarulata, underwent female-to-male sex reassignment surgery in 1987. Two years later, in 1989, he married Lila Chavda; the two had met five years earlier when Tarun Kumar’s sister was campaigning in an election in Dasada. Lila’s father, Muljibhai Chavda, approached the Gujarat High Court seeking to have the marriage declared void, arguing that it amounted to a same-sex relationship. His petition contended that Tarun Kumar lacked male reproductive organs and the capacity to procreate, and that sex-reassignment surgery alone did not make a person male. On this basis, Muljibhai brought criminal proceedings against Tarun Kumar under Section 377, and the Gujarat High Court accepted the petition.

The Case for Repealing Section 377

The very definition of an “unnatural act” reflects Victorian-era morality rather than contemporary values. The Constitution of India protects the right to privacy, which extends to consensual sexual conduct between adults. Section 377 was therefore challenged as a clear violation of Article 14, which prohibits discrimination on the basis of sexual orientation. Notably, the equivalent provision has since been repealed in Britain, where it originated. The twenty-first century has seen a marked escalation of LGBTQ activism demanding recognition of fundamental rights and challenging this colonial legacy — culminating in landmark judgments such as Navtej Singh Johar v. Union of India (2018)[5] and, more recently, Supriyo @ Supriya Chakraborty v. Union of India (2023).[6]

Constitutional Rights in India

Article 14 — Right to Equality
Article 14 guarantees that all persons shall be treated equally before the law, without discrimination on grounds of caste, gender, creed, colour, or sexual orientation. In Naz Foundation v. Government of NCT of Delhi, the petitioners argued that criminalising “unnatural sexual acts” bears no rational nexus to any legitimate distinction between procreative and non-procreative sex, and therefore violates Article 14.

Article 15 — Prohibition of Discrimination
Article 15 protects individuals from discrimination on grounds such as caste, religion, and sex. It also permits the State to make special provisions for the advancement of specific groups — such as women, children, and Scheduled Castes and Backward Classes — a practice often described as “positive discrimination,” constitutionally sanctioned to enable disadvantaged groups to progress.

Article 19 — Right to Freedom
Article 19 guarantees individuals the freedom to express their opinions without undue interference, affirming that all citizens are entitled to hold and express their views.

Article 21 — Right to Life and Personal Liberty
Article 21 provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Often described as the heart and soul of the Constitution, this Article establishes the right to life as a basic fundamental right that even the State cannot take away.

Landmark Cases

Naz Foundation v. Government of NCT of Delhi and Ors. (2009)[7]
This was the first significant case brought on behalf of the queer community. The Naz Foundation (India) Trust, established in New Delhi in 1994, is a non-governmental organisation focused on HIV and sexual health. Section 377 provides: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[8] As applied, the provision effectively confined lawful consensual sex to persons of the opposite gender. The Naz Foundation had challenged the section since 2001 as a violation of the rights to health, privacy, and equality, arguing that punishing citizens for private consensual conduct was unconstitutional. A two-judge bench of the Delhi High Court ultimately held that criminalising consensual sex between adults violated the fundamental rights guaranteed by the Constitution.

National Legal Services Authority (NALSA) v. Union of India (2014)[9]
This was a landmark case for the transgender community, addressing the rights and legal protection of persons who identify as neither male nor female. The Court distinguished between biological sex (assigned at birth) and psychological sex (self-identified), giving greater weight to the latter, and recognised transgender persons’ right to self-identification of gender.

Navtej Singh Johar and Ors. v. Union of India
This landmark judgment decriminalised consensual homosexual conduct. Decided by a five-judge bench that included Justice D.Y. Chandrachud, the Court held, with reference to Article 14, that criminalising sex between consenting adults solely on the basis of sexual orientation lacked any rational nexus or intelligible differentia. Separately, the Madras High Court has held that no person may be subjected to so-called “conversion therapy” aimed at changing their sexual orientation.[10]

The Transgender Persons (Protection of Rights) Act, 2019

This Act was enacted to protect the rights of the transgender community, prohibiting discrimination in employment, education, healthcare, access to government services, and private establishments. However, critics argue that certain provisions undermine the very empowerment the Act claims to promote. By requiring transgender individuals to obtain a District Magistrate’s certification of sex-reassignment surgery before amending their gender in official documents, the Act exposes applicants to invasive scrutiny and potential harassment, infringing on their right to privacy. The Act has also been criticised for omitting any provisions on scholarships, reservations, or curriculum reform to promote inclusivity for the LGBT community — a significant gap in an otherwise protective law.[11]

Legal Status of the LGBT Community in India

Section 377 of the Indian Penal Code, 1860, addresses “unnatural offences” and was derived from British colonial law. Section 292 of the IPC deals with obscenity, a concept that has at times been invoked in relation to homosexuality. Section 294 of the IPC penalises “obscene acts” committed in public, with a maximum punishment of three months’ imprisonment, a fine, or both[12] — this provision has occasionally been invoked in cases involving consensual same-sex conduct in public spaces.

Government Positions on LGBTQ+ Rights

The Ministry of Home Affairs expressed opposition to the Delhi High Court’s 2009 decision decriminalising homosexuality, in an affidavit filed around February 2012.
Later, on 28 February 2012, the Central Government revised its position, stating that it found no error in decriminalising homosexuality.
Congress MP Shashi Tharoor introduced a private member’s bill seeking to decriminalise Section 377 on 18 December 2015; the bill was defeated in the Lok Sabha by a vote of 71 to 24.
In 2016, the first Indian state government policy on transgender welfare introduced free sex-reassignment surgery in government hospitals.
On 25 February 2021, the Delhi High Court, in a separate matter, held that marriage under existing law could only be solemnised between a biological man and a biological woman.
On 5 March 2021, the Supreme Court of India issued notices to the Central Government and other parties in response to a public interest litigation challenging Health Ministry guidelines barring transgender persons and gay men from donating blood. A bench led by then Chief Justice of India S.A. Bobde heard the petition, filed by T. Santa Singh, challenging the constitutional validity of Sections 12 and 51 of the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, issued by the Ministry of Health and Family Welfare.
The guidelines had classified LGBT individuals as a high-risk group for HIV/AIDS transmission and imposed a blanket ban on blood donation by members of the community — notwithstanding that all donated blood is independently screened before use, rendering such a blanket exclusion arbitrary, discriminatory, and a violation of the community’s rights.[13]

LGBTQ+ Rights in the International Arena

Until the twentieth century, neither state nor religious institutions recognised homosexuality; it was widely treated as both a sin and a crime. This began to shift in the latter half of the century.
The World Health Organization declassified homosexuality as a mental disorder in 1992, after which a growing number of states moved to recognise it as a normal variant of human sexuality and extend rights to LGBT individuals — though the issue remains contested in many parts of the world.
The 2016 shooting at Orlando’s Pulse nightclub drew unprecedented international attention to violence targeting the LGBT community.
The United Nations Security Council formally condemned the attack, and even states generally critical of LGBT rights, including Egypt and Russia, denounced the violence.
Numerous UN bodies have since formally recognised LGBT rights as human rights.
UN Independent Expert Vitit Muntarbhorn has noted that more than seventy countries still impose criminal penalties — including, in some cases, the death penalty — for same-sex relationships.
In 2008, around 66 countries issued a joint statement supporting LGBT rights before the UN General Assembly.
In 2015, the UN Human Rights Council published a report on violence against the LGBT community and States’ obligations under international law.
Former UN Secretary-General Ban Ki-moon has spoken of facing resistance from powerful member states because of his support for LGBT rights.
On 29 September 2015, a joint statement on ending violence and discrimination against LGBT people was issued by a coalition of UN agencies, including the ILO, OHCHR, UNAIDS, UNDP, UNESCO, UNFPA, UNHCR, UNICEF, UNODC, UN Women, WFP, and WHO.
In 2017, Taiwan’s Constitutional Court ruled in favour of legal recognition for same-sex marriage.
André du Plessis, Executive Director of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World), has observed: “We have seen a lot of positive changes … slow but steady progress has been made.”
Countries across Africa, Asia, and the Middle East have also undertaken reforms, expanded awareness, and in some cases decriminalised homosexuality, reflecting a broader — if uneven — global shift in LGBTQ rights.[14]

Conclusion

The body of judicial decisions concerning the LGBT community will continue to shape the future of LGBT rights in India. The significance of the NALSA and Navtej Singh Johar judgments extends well beyond the recognition of third-gender identity and the decriminalisation of homosexuality. These rulings also laid the groundwork for broader civil rights previously unavailable to the LGBT community, including rights relating to marriage, adoption, surrogacy, protection against discrimination, and freedom from sexual assault.
Yet members of the LGBTQ community continue to face gender-based inequality, violence, and harassment, both in India and around the world. Until the twentieth century, there was no recognition of LGBT rights at all; the community was treated as untouchable, and homosexuality was regarded as both sin and crime. The Supreme Court can issue judgments and set legal precedent, but it falls to society itself to give those rulings meaning — to treat LGBT individuals as equal members of society, free from discrimination. Rights such as same-sex marriage, the legal recognition of adoption by same-sex couples, and protection against systemic oppression remain unresolved. The struggle, in short, is far from over. It remains the shared responsibility of government and citizens alike to speak out against discrimination based on gender identity and sexual orientation, and to work — through education, awareness, and continued reform — toward ending the marginalisation the LGBTQ community has long endured.

References

[1] Wikipedia, “Asexuality,” https://en.wikipedia.org/wiki/Asexuality (last visited 20 June 2026).
[2] Encyclopaedia Britannica, “Ardhanarishvara,” https://www.britannica.com/topic/Hermaphroditus (last visited 22 June 2026).
[3] Akhila Valsan, “Third Gender in Mahabharata: Through the Lens of Queer Theory,” 8 IJRAR 456–498 (last visited 22 June 2026).
[4] Devdutt Pattanaik, Shikhandi and Other Tales They Don’t Tell You (Penguin Books, 2014).
[5] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 (India).
[6] Supriyo @ Supriya Chakraborty and Anr. v. Union of India, 2023 INSC 920 (India).
[7] Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277 (India).
[8] Indian Penal Code, 1860, § 377.
[9] National Legal Services Authority v. Union of India and Ors., Writ Petition (Civil) No. 400 of 2012 (2014) (India).
[10] “Transgender Persons (Protection of Rights) Act, 2019,” The Society for Constitutional Law Discussion (Aug. 21, 2020).
[11] Indian Penal Code, 1860, § 292.
[12] Indian Penal Code, 1860, § 294.
[13] Lovepreet Kaur, “Exploring LGBTQ+ Equality in India: A Comprehensive Examination from Anthropological and Legal Perspectives.”
[14] International Commission of Jurists, “Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India” 69, 74, 89, 108 (2019).