LGBTQ+ Rights and Legal Protections

Author: Chithara Chinna Gowra Sona, Rajiv Gandhi National University of Law.

The male of Indian society winked at such practices, right from Manu to the Kama Sutra, the Khajuraho sculptures, to Babur's Baburnama, the Indian civilizations have historical evidence regarding LGBTQ+. The fact that Section 377 was enacted during British rule doesn't mean that the community vanished. It may have gone into a shell but never went away, just like it did prior. Contrary to popular misconception, the LGBTQ+ community is not a Western imposition; they have always existed in the rich cultural fabric of India. Dishearteningly, a country with historical roots of such a community has a 2022 survey by World Values Survey suggesting that 62% of Indians would not like homosexuals as their neighbors.

In 2018 that homosexuality was decriminalized with the landmark Navtej Singh Johar & Ors. v. the Union of India judgment. Until then, such acts were defined as unnatural offenses, which were found to be violative of Articles 14, 15, 19, and 21 of the Indian Constitution. Though the decision was welcomed, society’s opinion awaited transformation, for the government chose not to contest in the hearings. However, it opened the corridor to development for same-sex rights. In 2022, Deepika Singh v. Central Administrative Tribunal further expanded the ambit of the definition of 'family' under the Indian law to include same-sex couples for the first time; this subsequently applied to inclusion for such couples under various welfare statutes. However, the judgment as such in Supriyo v. Union of India (2023) did not go down well with the LGBTQ+ community since it didn't give same-sex couples the equal right of marriage or adopt under Indian law.

“Ignorance is no justification for normalizing any form of discrimination.” — Justice N. Anand Venkatesh.

The problems faced by the LGBTQ+ community in India, though not as glaringly harsh and unacceptable today as in the past, continue to be a part of the national culture. There has been a sort of amelioration. This is truly significant, but there are still terrible gaps that remain with regard to legal protections and recognition.

One of the most problematic of all those rights, however, entails marriage or civil union: an individual right that is still denied to same-sex couples in India. There is no anti-discrimination law for employment that offers specific protection from discrimination based on sexual orientation. The rights to cohabitate even seem to have intractable limitations on same-sex couples.

Again, LGBT people cannot serve in the army. Hate crime laws do not allude specifically to sexual orientation or gender identity. Though conversion therapy was banned by law, it continues to be practiced since anti-conversion legislation specifically banning it is still practically non-existent.

Gay men who have sex with other men are not allowed to donate blood. LGBT individuals are allowed to adopt alone, but they cannot adopt in couples. They cannot also adopt stepchildren. Lesbians could use IVF since 2018, but their reproductive options are curtailed.

Lesbians might do this through in vitro fertilization, but altruistic surrogacy is not available for LGBT individuals or couples. Same-sex couples cannot even obtain parenthood rights by automatic inclusion on the child's birth certificate.

Factors limiting LGBTQ+ rights in connection with adoption and family planning undergo changes rapidly, while the rights specific to gender identity have selectively gained recognition under the law. In recent years, individuals have succeeded in legally changing their gender and applying for state-sponsored medical options termed Gender Reassignment Surgery. In parallel, with the social legitimacy of the third gender choice and the application of domestic violence laws to trans women, the protection finally came in place in 2023. Comprehensive anti-discriminatory laws ensure coverage from gender identity and gender expression to various facets of life.

Even as social attitudes remain critical, such endorsement must not supplant the necessity for legal safeguard. Acceptance can only take root when engraved into the statute. To explore the journey and fabric of its principles in light of other strides taken towards the legalization of LGBTQ+ rights in India, one needs to understand the vetting landmark cases that were instrumental in developing the country and the conscience of its people.

One such important case is the Naz Foundation v. Government of NCT of Delhi (2009), a landmark ruling of the Delhi High Court that gave momentum to LGBTQ+ rights as a whole in India. A petition was filed by the Naz Foundation, a non-governmental organization based in India, to challenge the constitutional validity of Section 377 of the Indian Penal Code (IPC) of 1860. It criminalized "carnal intercourse against the order of nature," meaning most commonly, consensual sex among adults of the same sex. In fact, it was a viewpoint taken against human rights and fundamental human rights. The issue at heart in Naz Foundation was whether or not Section 377 violated fundamental rights under the Indian Constitution. The petition contended that the law is inconsistent with Article 14 (Right to Equality) in that it discriminates arbitrarily against many individuals based on sexual orientation. It contends that Section 377 violates Article 15 (Prohibition of Discrimination) indirectly by discriminating on the basis of "sex," which makes it inclusive of sexual orientation. The petition further claimed that criminalizing consensual same-sex relations violates autonomy, privacy, and dignity, would, therefore, be contravening Article 21 (Right to Life and Personal Liberty). In the decision by the Delhi High Court, the Naz Foundation was entitled to its appeal, as the court read down Section 377 and decriminalized sexual relations between consenting adults in private. The court decided that Section 377, has contravened Article 14 by discriminating against individuals based on sexual orientation. The court furthermore held that the law in question offended Article 15 on the ground that it indirectly discriminated based upon "sex," an interpretation that, according to the court, did include sexual orientation. Section 377 also seriously undermined the right to privacy and dignity as recognized in Article 21, and the judgment illustrates how any impairment of consensual same-sex activities would affect stigma and damage individuals contrary to their dignity and right to an adequate life. The judgment further underlined that India was also under obligations in terms of respect for international human rights treaties and laws and expressed the need for India to move with trends in equality and non-discrimination.

To ensure that laws evolve in accordance with contemporary societal values, the court applied the Doctrine of Progressive Interpretation. In the historic Naz Foundation decision, for the first time, an Indian court formally recognized the rights of LGBTQ+ individuals. This judgment paved the way for further legal and societal acceptance of the community.

The Doctrine of Progressive Interpretation was the lifeblood of the judgment in Naz Foundation v. Government of NCT of Delhi, inter alia for conforming legal frameworks to changing social mores and constitutional ideals. This doctrine enables the judges to also determine statutes and functional provisions in their broader social meanings and human rights framework. The Delhi High Court admitted that although statutes such as Section 377 were based on the moral standards of the colonial era, now they need to be assessed in light of the current constitutional principles, in particular, those assuring equality, liberty, and dignity. In applying this kind of principle, the court recognized that the Constitution is an enduring document which must keep pace with the development of society in order to provide justice in a constantly evolving society. The judgment accordingly aimed to bring the law in line with contemporary perceptions of sexuality, autonomy and inclusivity, and to assert that the law should not be taken as immutable when it condemns rights violations or perpetuates discrimination.

The decision in Suresh Kumar Koushal v. Naz Foundation was a slip of the bench decision, in that it restored the criminalization of homosexual sexual acts between consenting adults thereby reversing the liberalizing decision made by the Delhi high court in Naz Foundation (2009). Not only did this Supreme Court ruling overturn the constitutional values of equality, dignity, and privacy, but it also allowed the Constitution to ignore the constantly changing national and global views of LGBTQ+ rights.

The court trivialized the fundamental rights of marginalized communities by justifying its decision on the grounds that the LGBTQ+ population constituted a "minuscule minority.". On the other hand, the judgment alluded as an urgent matter for legislative reform but failed to acknowledge that Section 377 represented stigma, discrimination, and persecution in itself. The judgment strengthened opposition to the rights of LGBT+ persons and condoned the establishment practices of discrimination, thereby legitimizing the manifestations of the regressive thinking. The unjust ruling by Koushal against the Naz Foundation drew sweeping activism for justice and equality. The choice got harsh backlash from civil society groups, activists, and lawyers in India and beyond. This helped further raise the public profile of LGBTQ+ issues, pulling in different sections of society to back it. The ruling served to amplify the opposition to the Koushal verdict, ramping up advocacy by groups urging either the expungement of the ruling itself or its inclusion in an open discussion of constitutional rights.

 The regressive stance of Suresh Kumar Koushal v. Naz Foundation was finally countered by the decision of Navtej Singh Johar v. Union of India (2018), which became a stepping stone in the promotion of LGBTQ+ rights in India. Following a special articulation by Justice Oliver Wendell Holmes, Jr., here, a plurality of 5 to 4 in the highest court in a nation that considered all homosexual conduct between consenting adults a misdemeanour until 2009 decriminalised Section 377 in less than 10 years while maintaining the point he made on that occasion, that it applies only to private consensual legal activity of adults. Not only was it a legal victory, but the judgment also deepened the law with respect to the constitutional principles of equality, dignity, privacy, and liberty in favour of LGBTQ+ persons. The Navtej Singh Johar judgment starkly contrasted with Koushal, which had dismissed LGBTQ+ concerns based on their minority status. The Supreme Court denied this view and established that constitutional rights are applicable to all people, including those who are homosexual. The decision preserved the non subjective and irrevocability of the fundamental rights contained in Article 14 (right to equality), Article 15 (prohibition against discrimination), and Article 21 (right to life and liberty). With a sense of recognizing the infringement of these rights in criminalizing consensual same-sex sexual activity, the judgment aimed to break down the stigma and long-standing discrimination against a vulnerable group in the community.

One of the main points in the Navtej Singh Johar ruling was the respect of dignity and independence in a democratic society. The Supreme Court underscored that societal morality cannot override constitutional morality and that it is the judiciary’s duty to uphold the latter. With the declaration that s. 377 did not apply to consensual adults’ interactions, the court also upheld that the state should not meddle in private affairs and private decisions, thus reaffirming the tenets of the right to personal liberty and private life. This judgment marked a turning point in Indian jurisprudence and sent out a powerful message about the transformative potential of constitutional interpretation. It aligned India with global human rights norms, showing its commitment to inclusivity and equality. The decision invigorated the LGBTQ+ rights movement, inspiring more activism and dialogue around marriage equality, anti-discrimination laws, and transgender rights. 

The Koushal judgment was the main reason for an overall mismatch: instead of helping, it hurt the cause of LGBTQ+, but it sent one golden signal to revive the movement towards equality, besides allowing for public outrage and activism that was the backdrop to the success of Navtej Singh Johar v. Union of India.It symbolizes loyalty and commitment on the part of the LGBTQ+ allies and activists, enormous hard work that ensured the arc of justice curved toward equity: they were working relentlessly for equal rights and were convinced that constitutional rights indeed change lives. It has become the mirror image of the experiences of triumphs and tribulations of a historically downtrodden group. The Koushal ruling indeed was a nadir; yet it spurred a better quest for diversity, justice, and legal change. The wide-outcry and protests that arose in its wake propelled the 2018 Navtej Singh Johar ruling, which decriminalized consensual same-sex relations and marked a major shift in Indian jurisprudence.

This journey from Naz Foundation to Navtej Singh Johar is testimony not only to the resolve of the LGBTQ+ struggle but also of the changing role of the judiciary in continuing to defend constitutional morality against prejudice in society. Beginning there, however, en-roads to change and acceptance need to follow, so that the endurance of total equality could truly prevail, guaranteeing the lives of LGBTQ+ persons in India embodying.

1. Acceptance of Homosexuals as Neighbors, EqualDex, https://www.equaldex.com/surveys/acceptance-of-homosexuals-as-neighbors (last visited Dec. 21, 2024). 

2. Navtej Singh Johar & Ors. v. Union of India, (2018) 10 S.C.C. 1 (India). 

3. India Const. arts. 14, 15, 19, 21. 

4. Deepika Singh v. Central Administrative Tribunal, (2022) SCC OnLine SC 1088 (India). v Supriyo v. Union of India, (2023) SCC OnLine SC 677 (India). 

5. The Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2005). vii Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277 (Del.). 

6. viii Indian Penal Code (IPC), 1860, § 377. 

7. Law Jure, Case Analysis: Naz Foundation v. Government of NCT of Delhi, https://www.lawjure.com/case-analysis-naz-foundation-v-government-of-nct-of- delhi/#:~:text=They%20found%20that%20Section%20377%20discriminates%20against%20individuals,and%20autonomy%20of%20personal%20choice%20under%20Article%202

8. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India).