This article has been written by Saksham Sharma, a B.A. L.L.B. V Sem student of S.S Jain Subodh Law College, Jaipur.
In recent years, India has witnessed pivotal legal transformations in recognizing and safeguarding the rights of LGBTQ+ individuals. The landmark 2018 Supreme Court ruling striking down parts of Section 377 of the Indian Penal Code marked a monumental shift by decriminalizing consensual same-sex relationships, affirming equality, and acknowledging the right to privacy for LGBTQ+ communities. The Transgender Persons (Protection of Rights) Act, 2019 further aimed to shield transgender individuals from discrimination, granting them the right to self-identified gender and protections across various spheres. Legal provisions and court judgments emphasizing non-discrimination based on sexual orientation and gender identity have sought to ensure equal opportunities while challenges persist in societal acceptance and effective implementation of these laws. Continuous advocacy efforts push for broader rights, including marriage equality, underscoring the ongoing quest for inclusivity and equality for LGBTQ+ individuals in India.
Introduction
The landscape of legal rights for LGBTQ+ individuals in India has undergone a significant evolution in recent years, marked by pivotal judicial rulings, legislative changes, and societal discourse. The journey toward recognizing and safeguarding the rights of the LGBTQ+ community in India gained momentum with the historic 2018 Supreme Court verdict that overturned sections of the colonial-era Section 377, effectively decriminalizing consensual same-sex relationships. This milestone decision not only affirmed equality but also recognized the fundamental right to privacy for LGBTQ+ individuals. Subsequent legislative efforts, notably the Transgender Persons (Protection of Rights) Act, 2019, aimed to address discrimination and empower transgender individuals by acknowledging their self-identified gender and safeguarding their rights in various domains. Despite these strides, challenges persist in ensuring comprehensive legal protections, societal acceptance, and equitable opportunities for LGBTQ+ individuals. This introduction reflects a dynamic landscape where legal reforms intersect with ongoing advocacy, signalling an ongoing journey toward inclusivity and equality for the LGBTQ+ community in India.
In India, LGBTQ+ individuals have been granted certain legal rights following significant legal developments:
- Section 377 of IPC: Until September 2018, consensual same-sex activity was criminalized under section 377 of the Indian penal code. However, in a historic judgment, the supreme court of India declared section 377 unconstitutional, decriminalizing same- sex relationships between consenting adults.
Section 377 of the Indian penal code was a colonial-era law that criminalized consensual sexual activities against the order of nature, including same sex relationships. It historically targeted LGBTQ+ individuals and theor intimate relationships.
However, in a landmark judgement in September 2018, the supreme court of india declared parts of section 377 unconstitutional. The court held that consensual sexual activity between adults, including same sex relationships could no longer be considered a criminal offense. This judgement effectively decriminalized homosexuality in india, affirming the rights and dignity of LGBTQ+ individuals.
By striking down portions of section 377, the supreme court recognized the fundamental rights of LGBTQ+ individuals, including the right to equality, privacy, and non- discrimination. This ruling was a significant step forward in the legal recognition and protection of LGBTQ+ rights in india.
- Right to Privacy: The Supreme Court, in the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India, recognized the right to privacy as a fundamental right protected under the Indian Constitution. This judgment has been used to support LGBTQ+ rights and protect individuals’ privacy in their personal relationships.
The right to privacy in India has played a crucial role in the legal recognition and protection of LGBTQ+ rights. The landmark judgment in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, delivered by the Supreme Court of India in 2017, established the right to privacy as a fundamental right protected under the Indian Constitution.
This right to privacy encompasses an individual’s autonomy over personal decisions, including matters related to intimate relationships, sexual orientation, and identity. The recognition of this fundamental right has been instrumental in advancing LGBTQ+ rights in India in the following ways:
- Decriminalization of section 377: The right to privacy was a pivotal argument in the case challenging Section 377 of the Indian Penal Code. The Supreme Court held that consensual sexual activity between adults is a private matter and falls within the realm of an individual’s right to privacy. This judgment led to the decriminalization of same-sex relationships by striking down portions of Section 377.
- Protection from discrimination: The right to privacy extends to protecting individuals from unwarranted intrusion into their private lives, including matters related to sexual orientation and gender identity. It has been used to argue against discrimination and uphold the dignity of LGBTQ+ individuals.
- Autonomy in personal choices: The recognition of privacy rights allows individuals to make decisions about their relationships, identity, and expression without undue interference from the state or society.
While the right to privacy has significantly bolstered LGBTQ+ rights in India, ongoing efforts continue to ensure its application in various legal contexts to safeguard the rights and dignity of LGBTQ+ individuals against discrimination and intrusion into their private lives.
Transgender rights: The Transgender Persons (Protection of Rights) Act, 2019, aims to protect the rights of transgender persons and prohibits discrimination against them. It recognizes their right to self-identification of their gender and provides for reservations in education and employment.
In India, the rights of transgender individuals have gained legal recognition and protection through various legal developments and policies:
- Transgender persons (protection of rights) act,2019: This legislation was enacted to safeguard the rights of transgender persons and address discrimination against them. The key provisions of this act include:
- Recognition of the right of transgender persons to self-perceived gender identity.
- Protection from discrimination in education, employment, healthcare, access to goods, facilities, and opportunities available to the public.
- Establishment of welfare measures by the government for the social inclusion and economic empowerment of transgender individuals.
- National legal precedents: Several court judgments, including those by the Supreme Court of India, have recognized the rights of transgender individuals:
- The NALSA judgment (National Legal Services Authority v. Union of India) in 2014 affirmed the rights of transgender persons and recognized them as a third gender.
It directed the government to provide equal opportunities and eliminate discrimination.
- Courts have also affirmed transgender individuals’ rights to education, employment, and protection from discrimination under the Constitution of India.
- Reservations and welfare measures: The Transgender Persons Act mandates the provision of reservations in education and employment for transgender individuals. It also requires the government to formulate welfare schemes and take steps to facilitate their social inclusion and economic empowerment.
- Challenges and Advocacy: While these legal provisions represent progress, challenges remain in implementation and societal acceptance. Activists and organizations continue to advocate for broader societal inclusion, access to healthcare, protection from violence, and the effective implementation of legal protections for transgender individuals.
These legal strides and policies aim to recognize and protect the rights of transgender individuals in India, fostering inclusivity and equal opportunities in various spheres of life.
Non-Discrimination: The Constitution of India prohibits discrimination based on sex, and this principle has been extended to protect individuals from discrimination based on sexual orientation and gender identity by various courts.
Non-discrimination forms a critical aspect of LGBTQ+ rights in India, and several legal mechanisms aim to prevent discrimination based on sexual orientation and gender identity:
- Constitutional protections: The Constitution of India prohibits discrimination on grounds of sex. Courts have interpreted this principle to include protection against discrimination based on sexual orientation and gender identity, affording LGBTQ+ individuals constitutional rights to equality and non-discrimination.
- Supreme court judgments: Landmark judgments by the Supreme Court of India have recognized the rights of LGBTQ+ individuals and emphasized non-discrimination:
- The verdict in the Navtej Singh Johar case (2018) declared that discrimination based on sexual orientation violates fundamental rights and is against constitutional morality.
- The NALSA judgment (2014) recognized transgender individuals as a third gender and stressed the need to eliminate discrimination and provide equal opportunities.
- Transgender rights: The Transgender Persons (Protection of Rights) Act, 2019, specifically addresses discrimination against transgender individuals in various spheres, including education, employment, healthcare, and public spaces.
- Employment and Education: Legal provisions, including affirmative actions and anti-discrimination policies, strive to ensure equal opportunities for LGBTQ+ individuals in employment and education sectors. Various organizations and educational institutions have formulated policies to prevent discrimination based on sexual orientation and gender identity.
- Advocacy and Awareness: Activist groups, NGOs, and advocacy organizations work to raise awareness about LGBTQ+ rights and combat discrimination through campaigns, workshops, and legal advocacy.
Despite legal safeguards, challenges persist in the effective implementation of anti-discrimination laws and societal acceptance. Continued efforts by both the legal system and civil society are necessary to ensure the full protection of LGBTQ+ individuals from discrimination in india.
LGBTQ+ Rights in India: The Supreme Court’s Verdict
The Supreme court refusal to accord legal recognition to marriages between persons of the same sex is being seen as a setback to the queer community in the country. Given the progress in law in recent years and the deepening of the meaning of individual rights, there was widespread expectation that the five-judge Constitution Bench would give the Special marriage act (SMA), a law that allows any two people to marry, a gender-neutral interpretation to include people belonging to the same sex.
Over the years, the amplitude of Article 21 of the Constitution has been expanded to cover the rights of privacy, dignity and marital choice, but the highest court has stopped short of the extra step needed to allow marriages or civil unions that are not heterosexual. All five judges have chosen to leave it to the legislature to enact such a law.
What are the Observations made by the Supreme Court?
- On Legislature to Frame the Laws: The court held that it can neither strike down or read words into the Special marriage act (SMA) 1954 to include same sex members within the ambit of the SMA 1954.The top court said it is for Parliament and state legislature to formulate laws on it.
- In the absence of any central law, the judgment read that State legislatures can enact laws recognising and regulating same sex marriage; the Constitution under Article 245and 246 empowers both the parliament and the State to enact marriage regulations.
The State may choose from a number of policy outcomes; they may make all marriage and family-related laws gender neutral, or they may create a separate SMA-like statute in gender-neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives.
- Tamil Nadu has already amended the Hindu Marriage act in 1968 to allow self-respect or ‘Suyamariyathai’ marriages.
- On the Right to form Civil Unions: The minority opinion batted for the state to recognise queer unions, even if not in the form of marriage. The right to enter a union cannot be restricted on the basis of sexual orientation (which violates Article 15); moreover, marriage is significant because of a bouquet of rights, and for same-sex couples to enjoy these entitlements, it is necessary that the state accord recognition to such relationships.
- However, the majority opinion said the government is not obligated to recognise the bouquet of rights flowing from such a Union.
- On Trans persons’ Rights: The majority opinion of the Bench affirmed that transgender individuals have the right to marry within the existing legal framework. The judgment emphasized that gender identity is distinct from sexual orientation, highlighting that transgender individuals can be in heterosexual relationships similar to cisgender individuals. Therefore, such marriages can be legally registered under marriage laws. Additionally, the judgment recognized that intersex individuals who identify as either male or female also have this right.
- The Court affirmed the Madras High Court decision in Arun kumar vs. Inspector general of registration(2019), which declared marriage between a Hindu male and a transwoman a valid union.
- On Adoption Rights: The majority opinion refused to strike down the Central adoption resource authority (CARA) regulations that restrict queer couples from joining in adopting a child. While it noted that these regulations are discriminatory and violative of Article 14, the majority opinion did not support adoption rights for same-sex couples, citing the need to explore all areas for the benefit of children in need of stable homes.
- On Entitlements: The court acknowledges the need for equal rights for queer couples in areas like ration cards, joint bank accounts, pensions, and gratuity. However, there is a disagreement on whether the judiciary or the legislative and executive branches should address these issues.
- On Natal family Violence and Protection: Many queer persons face violence from natal families and are reportedly kidnapped in an attempt to end relationships. The judgment identified that families of LGBTQ persons as well as the police are the primary actors in such violence, and has issued directions to the police department to not force queer persons to return to their family.
- Previous High Court orders have recognised the legitimacy of queer couples in live-in relationships and afforded them protection from violence.
- The petitions, Amburi Roy v Union of India and Rituparna Borah v Union of India, argued for the right to choose a family.
- On Sex, Gender, and Discrimination: The verdict rejected the government’s argument that same-sex unions are unnatural or non-Indian. It acknowledged that queer love has existed in India for a long time and that the constitutional legitimacy of same-sex relations is not undermined by societal acceptability.
Conclusion
The evolution of legal rights for LGBTQ+ individuals in India signifies a remarkable journey toward inclusivity and equality, marked by significant legal reforms and societal shifts. Landmark judicial interventions, notably the 2018 Supreme Court ruling that overturned parts of Section 377, have dismantled archaic laws, decriminalized same-sex relationships, and affirmed the fundamental rights and dignity of LGBTQ+ individuals. The subsequent enactment of the Transgender Persons (Protection of Rights) Act, 2019, aimed to address discrimination and empower transgender communities, yet challenges persist in its effective implementation and broader societal acceptance. As the legal landscape continues to evolve, ongoing advocacy efforts and dialogues propel the quest for comprehensive legal protections and societal inclusivity for LGBTQ+ individuals in India. The strides made underscore a collective aspiration for a future where equality, respect, and recognition of LGBTQ+ rights are not just enshrined in law but also ingrained in the fabric of Indian Society.
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