In January, a bench of the Supreme Court transferred a batch of petitions seeking validity for same-sex marriages in various High Courts to itself. This week, the Centre opposed these pleas stating that, the union between persons of opposite sex is “socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation”. It also said that giving legal recognition to same-sex marriages will give rise to a lot of complications in issues related to adoption, divorce, maintenance, inheritance etc.
While the Supreme Court considers the legal position in this case, let us see some steps Indian courts have taken in favor of the LGBTQ+ community.
Naz Foundation (India) Trust filed a suit in the Delhi High Court in 2001, seeking legalization of homosexual intercourse between consenting adults. In 2009, a 2-judge bench held that Section 377 was in direct violation of the basic fundamental rights of people in same-sex relationships under Articles 14,15,19 and 21 of the Indian Constitution. It also stated that criminalisation of consensual homosexual intercourse violated the rights to dignity and privacy, which are part of the right to life and liberty guaranteed under Article 21 of the Constitution.
In 2014, in a landmark judgment for transgender rights, the Supreme Court of India created the ‘third gender’ status allowing transgenders to identify as a gender other than ‘male’ or ‘female’. The Court held that not recognising them as a separate gender was a violation of the rights guaranteed under Article 14, 15, 16 and 21 of the Indian Constitution. It further directed the Government of India to give the third gender OBC status and treat its members as an economically and socially backward class, thereby giving them all the benefits in health, education, employment and other welfare schemes.
You can read more about the Rights of Transgender Persons in India here.
A section of the Puttaswamy judgment titled “discordant notes” by Justice Chandrachud held that sexual orientation also falls within the ambit of the right to privacy. He noted that privacy at its core includes the preservation of personal intimacies and sexual orientation. Simply because an individual is in a public space is not reason enough to surrender the personal choices that govern their way of life. The judgment also noted that simply stating that the LGBTQ+ population is a miniscule number cannot be held as a ground to deprive them of their basic fundamental rights, as was argued in Suresh Kumar Koushal v Naz Foundation 2014.
In 2018, the Supreme Court ruled that Section 377 of the Indian Penal Code that referred to homosexuality as an “unnatural offence” and criminalized it, is unconstitutional. By reading down Section 377 to exclude consensual intercourse between adults of the same sex/ gender, the court decriminalized homosexuality. It further stated that curbing one’s freedom to express one’s sexual identity curbed one’s right to freedom of expression under Article 19 of the Indian Constitution. The court further held that sexual orientation is a part of self-identity and invalidating it is the same as denying someone their right to life. The Court directed the government to create awareness about LGBTQ+ rights and eliminate stigma around them.