The last decade, from 2010 onward has been the decade of LGBTQIA rights. There has been a visibility of LGBTQIA members in the public sphere and in the courts asking and demanding for rights. There have been judgement that paved the way for LGBT Rights in India. The judiciary, both the High Courts and the Supreme Court, have been receptive of the issues raised by the NGO groups, groups consisting of members of LGBTQIA members and allies. This has resulted in some landmark judgements in the last decade which culminated in the reading down of Section 377. In a post 377 judicial landscape the Courts continue to uphold the rights especially in the arena of Transgender rights.
Let us have a look at some of the judgements which have been instrumental in upholding and even reshaping the discourse around LGBT rights in India.
Naz Judgement, 2009
Naz Foundation v Government of NCT Delhi or as it is popularly known as Naz Judgement is a 2009 judgement by the Delhi High Court. In this judgement for the first time Delhi High Court declared Section 377 to be unconstitutional.
Naz an NGO based in Delhi which filed a Public Interest Litigation (PIL) at the Delhi High Court and claimed Section 377 of the Indian Penal Code to be unconstitutional. They have been at the forefront in the battle of decriminalisation. In 2009 they successfully got the Courts to declare Section 377 to be unconstitutional which violates Article 14, 15 and 16 of the Indian Constitution.
NALSA Judgement, 2014
2013 was a very dark year for rights in India in general and LGBTQIA rights in particular because Supreme Court of India delivered Suresh Kumar Koushal vs Union of India where homosexuality was re-criminalized. The darkness was short lives because National Legal Services Authority vs Union of India or NALSA judgement was delivered by the Supreme Court.
For the first time in legal history, Transgender people were recognised as citizens of this country, all the Fundamental Rights were extended to them and they were given the identity of Third Gender. This case continues to be the landmark case for Transgender Rights in this country. The court laid a comprehensive set of guidelines that every State must follow to bring Transgenders into public spheres and provide remedies for their marginalisation.
LGBT Rights in India – The five times legal system stood up for the LGBTQIA community
Puttaswamy Judgement, 2017
Justice (Retd) K S Puttaswamy vs Union of India or Puttaswamy judgement as it is popularly known is an integral judgement as it held the Right to Privacy to be integral. Article 21 of Constitution of India which grants us Right to Life and Liberty was also expanded to include Right to Privacy.
Right to Privacy was also extended to every individual irrespective of their gender and sex. Recognition of privacy for members of the LGBTQIA community as an inalienable grants them autonomy and protection from State action while exercising their right to choose their partners. Hence, this judgement along with NALSA judgement became the pre-cursor to the reading down of Section 377 in 2018.
Navtej Johar, 2018
Navtej Singh Johar v Union of India or Navtej Johar, as it is popularly known, is the seminal judgement that decriminalized homosexuality in India. This judgement delivered by the Supreme Court of India is a result of multiple Public Interest Litigations that have been filed by different groups of the LGBTQiA community.
The Bench struck down Section 377 to the extent that it criminalized sex between two consenting adults. The Court upheld the provision of that criminalise non –consensual acts with children or animals. The Supreme Court further held that Section 377 violates Article 14, 15, 16 and 19 1 (a) of Constitution of India. It recognized that every individual irrespective of their gender identity and sexual orientation have the right to live with dignity, autonomy and make personal and private without State interference.
Arun Kumar Judgement, 2019
Arun Kumar v Inspector General of Registration, Tamil Nadu is a case from the Madras High Court which reads into the category of brides to include transwomen. Under Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgement expands the category of women to include transgender people to identify as women to be brides as well.
It takes the clause of self-identification as has been mentioned in the NALSA judgement , where a person can identify as any gender identity without needing a State or external body to verify their identity. Evolving this clause, it says if an individual wishes to identify as a transwoman then they have the constitutional right. This, among many other cases, lays the foundation for marriages within the LGBTQiA community broadening the right to marry.
Why It Matters?
The battle for equality, recognition and, citizenship for the queer bodies has been long and still ongoing. However, judicial recognition to address rights and provide remedies matters for the project of equality and dignity. These judgements have been seminal in shaping the narrative of rights and recognition for the LGBTQiA community. All the rights that we know of today and associate with the community come from these judgements. These judgements are a result of a fight has been waged for over two decades now by members of the community, NGOs, lawyers and all civil societies.
Priyanka Chakrabarty is an intern at SheThePeople