The last decade has seen a phenomenal shift when it comes to recognition of LGBTQIA+ rights in India, and the role played by the Indian Judiciary, especially spearheaded by the Hon'ble Supreme Court of India and the Delhi High Court, with respect to this has been quite remarkable. With the striking down of Section 377 of the Indian Penal Code, 1860, the law has finally acknowledged an individual’s right to life and personal liberty in its truest sense. However, what we need to keep in mind is that the path which led to this destination has certainly not been a bed of roses. Therefore, on this Transgender Day of Remembrance 2021, let us take a sneak-peak into this brutal legal battle in which, ultimately, rights are emerging victorious over orthodoxy.
Source: The Better India
Naz Foundation v. Government of NCT of Delhi and Ors, 2009 SCC OnLine Del 1762
In this case, the Delhi High Court for the very first time declared Section 377 of the Indian Penal Code, 1860 as unconstitutional and held that this section was in violation of Articles 21, 14 & 15 of the Constitution of India.
The Honourable Court in conclusion stated, “In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
However, the judgment was reversed in the case of Suresh Kumar Koushal v. Naz Foundation, 2013 SCC OnLine SC 1088; but was re-affirmed in the case of Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350.
Source: Indiatimes.com
Suresh Kumar Koushal v. Naz Foundation, 2013 SCC OnLine SC 1088
This judgment was a big blow to LGBTQIA+ rights in India, as the Supreme Court of India reversed Delhi High Court’s verdict in Naz Foundation v. Government of NCT of Delhi and Ors (2009 SCC OnLine Del 1762) by reinstating and recriminalizing Section 377 of the Indian Penal Code, 1860.
Source: The Indian Express
National Legal Services Authority v. Union of India, 2014 SCC OnLine SC 328
This was a landmark case in which the Supreme Court of India for the first time granted the status of “third gender” to the transgender people and affirmed that they are equally entitled to fundamental rights, guaranteed under the Constitution of India. The Court also granted them the right to self-identification to identify their gender as the third gender, female or male. The Court extended the reservation in admissions to educational institutions and job appointments for the third genders as well.
Source: Oneindia
Justice (Retd) K S Puttaswamy v. Union of India, 2017 SCC OnLine SC 996
In this case, the right to privacy was held to be an integral part of Article 21 of the Indian Constitution that grants the right to life and personal liberty. The right to privacy was extended to every individual irrespective of gender and sex. The judgment recognized the right to privacy of the members of the LGBTQIA+ community as well and gave them autonomy and protection from State from exercising their right to choose their partners. Therefore, this judgment became a pre-cursor to the striking down of Section 377 of the Indian Penal Code, 1860.
Source: Scroll.in
Navtej Singh Johar v Union of India, 2018 SCC OnLine SC 1350
In this case, the Supreme Court of India delivered a landmark judgment that partially struck down Section 377 of the Indian Penal Code, 1860, and decriminalized all consensual sex between adults, including homosexuals. The Court held that Section 377 was completely “irrational, arbitrary and manifestly unconstitutional". The judgment also pronounced that the LGBTQIA+ community is entitled to equal citizenship and protection under the law, without any discrimination.
Therefore, to conclude, it can be said that although, our Judiciary has become quite receptive when it comes to the demands of changing times, yet our society has not been able to rise above these narrow boundaries of gender, sex, etc. and this is the reason why we still are struggling and fighting against this deep-rooted and orthodox thinking which so ingrained in the minds of people that we have forgotten the very fact that we all are humans and we all deserve an atmosphere where equality and respect for each and every individual should be our “Dharma”.
Let us keep this spirit of optimism alive and remember what Rabindranath Tagore once wrote,
“Where the mind is without fear and the head is held high… Into that heaven of freedom, my Father, let my country awake.”
This research has been compiled by Ms. Vibhuti Devgan, a second-year law student from the Army Institute of Law, Mohali.