All Human Beings Are Born Free And Equal In Dignity And Rights.
The recent filing of petitions in the Supreme Court for the recognition of
same-sex marriage opens the legal skirmish in which the apex court has issued
the notice and the same also creates exhilaration about the outcome.
LGBT is an acronym that stands for lesbian, gay, bisexual, and transgender.
Whilst their communities are still growing, discrimination against them occurs.
Today they are facing problems such as bullying, inequality, sexual abuse and
cybercrime also exist. However, recent times have seen a more powerful use of
the constitutional framework to articulate and protect the basic rights of LGBT
people. In India, the relevant laws for the welfare of LGBT people are not in
People belonging to the LGBT Community in India eagerly wait for policies such
as recognition of their marriage, prevention of discrimination, and other
welfare policies in the sector of health, education, and job opportunities.
India also abstained from voting on 7TH July, 2022 in a favour of resolution
passed at the UN Human Rights Council to extend the mandate of an Independent
expert to monitor or check the human rights violations against the LGBT
Community. The same spurn has also been forwarded by India in 2016 when the
mandate of an independent expert was introduced and again in 2019 to extend the
mandate whilst voting at UN Human Rights Council.
In light of the same, it is pertinent to discern the existence of the LGBT
Community/rights beyond India and under international law:
LGBT Rights Beyond India And Under The Internation Law
After the establishment of the League of Nations, 1919 a few countries started
to recognise the rights of LGBT people under the auspices of evolving then
International Law, as a consequence of the approval of international conventions
and accords among the newly formed states. Since the foundation of the UN
Charter in 1945, a range of standards, protocols, and practices have been
devised to guarantee that sex minorities receive support as soon as feasible:
The charter of the UN provides that every member state should ensure equal
rights to all individuals without any discrimination and laid down several
obligations for the member states. The United Nations is an international
organization with 193 member nations. Nevertheless, the UN continues to be the
primary mechanism for preserving and taking steps for the global recognition of
the rights of LGBT people at international the level. The UN has a plethora of
diverse entities and methods that have evolved as a result of its own nature and
international conventions that governments signed up and agreed to be bound by:
The United Nations Declaration on Human Rights was adopted in 1948 by the
General Assembly of the UN which claims every human being is entitled to
equal access to rights and freedom without any discrimination of any
type. This document was adopted when most Nations classified
homosexuality as a psychological disorder and unlawful conduct, and also
many spiritual organisations saw it as the highest sin. However, it is only
a declaration and is not obligatory on U.N.
Member states as international conventions. Nevertheless, since its ideas
have been adopted into practice by numerous organisations, tribunals, and
nations, the Universal Declaration may be enforceable as jus-cogens. Article
29 of the declaration contains the text that states may modify the various
rights of the LGBT Community and article 30 prevents the states to exploit
article 29 to deprive the rights of the LGBT Community. Each article of the
declaration insists the member states to prevent any kind of discrimination
against the members of the society.
- European Convention
The Convention guarantees constitutional treatment to all individuals, and
the transgender population is likewise regarded equally in these norms.
Equality under the law provides equitable rights and serves as a deterrent
to bias and inhumane treatment of transgender persons. In a series of
decisions involving the acknowledgment of reassignment sex, the Court of the
European Union of Individual Rights held that: Nevertheless, the essence of
the convention is to safeguard selfhood and dignity. It was the first
authority to lay down the rules that discrimination based on "sexual
orientation" breaches the fundamental of appreciating basic rights, and it
also has the broadest precedence in addressing the issue of the LGBT
This covenant plays the most important rights to ensure the civil and
political rights of all human beings without any discrimination, therefore
preventing discrimination on any grounds including sexual orientation.
Article 6 of the covenant provides that every person has a natural right to
life on the other side article 7 prohibits any inhuman treatment of the
individuals i.e., all should be treated humanely, it imposes a duty on the
member states to not mistreat the LGBT people on any ground.
The right to privacy, initially mentioned in the Declaration, is expanded in
Article 17 of the ICCPR, which protects individuals' own decisions on how to
display their sexuality. Stronger enforcement of Article 26 of the ICCPR,
which protects the right to equal protection under the law stipulated by the
ICCPR, will also help LGBT populations.
Nevertheless, the recommendation of the Covenant, member states have yet to
enact suitable legislation which can function as a comprehensive law to
ensure rights and freedom to the LGBT Community. The ICCPR's most
fundamental flaw is that it only asks States to take steps toward the
Covenant's goal and purpose, rather than mandating suitable and efficient
- Yogyakarta Principles, 2006 
These principles were adopted in the experts meeting held in Yogyakarta in
Indonesia, 2006. The principles enshrined under it consist of a wide range
of rights regarding LGBT people and address the issues of them. These
principles provide for the obligations of the states to promote and protect
human rights, especially of LGBT people.
Denmark, in 1989 became the first country that legally recognised same-sex
marriage, which was followed by "Norway, Sweden, and Iceland".
LGBT people's rights diverge from country to country. In some countries,
same-sex marriage is legally recognized whereas in others it is not. On the
other hand, countries are there which also criminalised homosexuality and
enacted anti-sodomy laws.
In 2003, the US Supreme Court in the case (Lawrence v. Texas) by a 6:3 majority
held that laws which penalised consensual sexual activity between same-sex
couples are unconstitutional as it violates the IV amendment of the US
Constitution by keeping in mind the essence of individual choice/existence.
It laid down a watershed moment as till this decision homosexuality was
penalised in the majority states of the USA. In another significant case
Obergefell vs Hodges, 576 U.S. 644 (2015) the US Supreme Court obliged all the
fifty member states to legalise same-sex marriages.
The First act i.e. The Buggery Act 1533 was passed during the reign of Henry VII
to prosecute homosexuals and intended to outlaw sodomy out of Britain. Later
supplemental codes and enactment were also brought to penalise homosexuality. It
was continued till a report known as Wolfenden Report on homosexuality offences
was published by the Departmental Committee.
The report recommended that homosexuality between the consenting couple should
not be considered an offence. But the Government took a decade to adopt the
recommendation of the Wolfenden Report and allowed consensual homosexuality
between adults vide the Sexual Offence Act 1967. In furtherance of the same in
2004 same-sex couples were also allowed to legalise their marriage vide Civil
Partnership Act 2004 and another paradigm is the "The Equality Index Act 2010"
which prohibits discrimination/harassment against LGBT people in the workplace.
Being a part of the British Empire the Australian states adopted anti-sodomy
laws and in many jurisdictions of Australia, the death penalty was provided for
consensual homosexuality. Decriminalisation of the same began in 1973 when then
Prime Minister John Gorton passed a motion suggesting the decriminalisation of
Thereafter, South Australia became the first state to repeal the anti-sodomy
law, and over a year the majority of Australian states moved towards the
decriminalisation of homosexuality. In the case then, Toonen vs Australia
(CCPR/C/50/D/488/1992) was brought before the UN Human Rights Committee since
Tasmania's Government persistently abstained to repeal the Anti-sodomy laws.
The UN Committee categorically held that such laws violate the principles of
ICCPR. In the furtherance of the same, Tasmania Government struck down the
anti-sodomy laws. In 2017 the Australian Government also legalised same-sex
marriage vide Marriage Amendment (Definition and Religious Freedom Act 2017).
According to the report world review by population 2021:
Countries in which homosexuality is an offence:
Saudi Arabia, Yemen, Somalia, Sudan, Nigeria, Iran, Brunei, Afghanistan, Qatar,
In many Islamic countries, Homosexuality is still punishable by death.
Countries that are safest for the living of LGBT people.
The Netherlands legalised "same-sex marriage" in 2001. Below given are the
countries which are assumed to be safest for LGBT people:
Sweden, Canada, Norway, Portugal, Belgium, the United Kingdom, France, Iceland,
Following countries so far allowed same-sex marriage (legally recognised):
According to a report published by Statista Research Department in 2021, almost
71 countries are there in which homosexuality is punishable. Another report
of it which was published recently shows that currently, 32 countries have
legally recognised same-sex marriage.
CONCLUSION AND STAND OF INDIA OVER LGBT RIGHTS
"State shall not deny any person equality before the law or equal protection of
the laws within the territory of India".
The First Law Commission which was chaired by Lord Macaulay proposed the
contentious law against homosexuality when establishing the Indian Penal Code
149 years ago. The draconian law section 377 was enacted by the colonial
government at the time the of British era.
However, it took decades to scrap this draconian law. Finally, in 2018 SC whilst
hearing a case in which the constitutionality of section 377 of IPC was
challenged held unanimously by 5-0 that "Homosexuals have a fundamental right to
live with dignity, and the LGBT community is entitled to equal constitutional
protection and to be recognised as humans without any shame connected to them."
Many petitions are still pending in Indian courts seeking legal status for the
marriage of same-sex couples. Many times courts also provided protection to
same-sex couples. People belonging to LGBT people are eagerly waiting for the
legal recognition of their marriage so that they can also avail of basic rights
that are availed by other couples.
The recent development shows that society's attitude getting changing and
state governments also taking favourable steps for the LGBT Community as:
- Karnataka is the first state which provides reservation in employment
for the transgender Community.
- In Noida a metro station is named as a pride station making it inclusive
of transgender people.
- In 2017, the directions were issued by Centre Government Ministry issued
instructions to the states to allow transgender people to use the toilet of
- In a prominent Judgment the Madras High court has issued guidelines to
protect LGBT people from police harassment.
Recently two bills have been tabled in the parliament i.e. The Special marriage
(amendment), 2022 this bill proposed to amend section 4A of the act to allow
same-sex marriage and also to amend sections 15, 22, 23, and 27 of the act to
remove the word husband and wife from these sections, to place the word spouse
in the place of the same. However, this bill is not comprehensive as it failed
to address the issue of adoption and inheritance specifically.
Another bill was the "Equal Protection of Rights for LGBT Persons Bill 2021"
Community though it is the first charter for the welfare of the LGBT Community
as it includes many rights i.e., relating to abortion, guardianship, and
surrogacy, and further includes a provision to prevent discrimination,
harassment and bullying at the workplace, home and in the education
institutions. Both of these bills were private bill as it was not introduced by
any Minister and the bills were not set into motion by the parliament.
In 2018 a bill was introduced to amend the Armed forces Act to allow LGBT people
to join the forces but the same has lapsed. Even no comprehensive data on
public opinion on LGBT is available in India, therefore, comprehensive research
requires to be done on the same which might help the legislature to enact a
comprehensive welfare policy for the LGBT Community.
Recently, filed petitions before the Supreme Court for the recognition of
same-sex marriage and which also challenged the Hindu Marriage Act, Foreign
Marriage Act, and Special Marriage act so far they do not recognise same-sex
marriage raises new hope for the rights of the LGBT Community, and in a recent
development the Supreme Court referred the petitions seeking recognition of
same-sex marriage to the Constitution bench considering that the issue is of
The conundrum which the LGBT Community is dealing with can be well
"The repealing of section 377 which criminalises sexual acts between same-sex
couples, nevertheless created hope for the LGBT people but in the absence of the
basic right to marry it is of no use. The same-sex couple is still deprived of
any social and legal recognition.
While the Supreme Court's decriminalization of homosexuality is an ahead step,
now legislature should come up with a law to acknowledge homosexual marriages in
order to provide LGBTs with the recognition of their marriage and rights same as
those of another gender (heterosexual couples). Currently, marriage rules cause
prejudice towards LGBT people since they only consider marriage between
The use of words like "bridegroom," "bride," "male," and "female" in these
statutes leaves no place for LGBT people to get any matrimonial rights. Article
44 of the Constitution imposes an obligation upon the state to achieve the
"uniform civil code" which governs personal rights irrespective of religion,
which is yet not achieved. Therefore, A Uniform Civil Code with a common
gender-neutral concept of marriage, which would grant LGBTs marital rights".
Constitutions are more than just government agreements; they are also ethical
writings that spell out a Community's common commitment to defined values. It's
crucial to remember that principles enshrined in the constitution are the values
that justify why we create a constitution for ourselves.
- ART. 1, United Nation Declaration on Human Rights, 1948
- Drafted in San Francisco on June 6th, 1945.
- United Nation Declaration on Human Rights, adopted on 10 Dec. 1948 by
- European Convention on Human Rights, 1950.
- European Human Rights Courts.
- "The United Nations International Covenant on Civil and Political
Rights", Adopted 16 Dec. 1966 by General Assembly Resolution 2200A XXI.
- The encyclopaedia of Gay, Lesbian, Bisexual Transgender, available at:
http://www.glbtq.com/social_sciences/poland.html (Visited 5 May 2022).
- Yogyakarta Principles, 2006, an outcome of international meeting of
experts at Yogyakarta, Indonesia.
- Lawrence v. Texas, 539 U.S. 55 2003.
- LGBT rights by population, world review by population, 2021
- Countries where being gay is legally punishable by death, Hristina
Byrnes 24/7 Wall Street, USA TODAY. Published 10 a.m. June 14, 2019.
- Nov 9. 2021.
- Dec 9, 2022.
- Art. 14, The Constitution of India, 1950.
- Indian Penal Code, 1860.
- Navtej Singh Johar v Union of India, 2019, 3 SCC 345, Supreme court of
- K Venkatesan, "Karnataka Becomes the First State to Reserve Jobs for
Transgender Persons", THEWIRE, JULY 22, 2021, available at (last visited on
July 29, 2021)
- Ashna Butani, "At 'pride' Noida Metro station, transgender find
welcoming workplace", THE INDIANEXPRESS, Nov. 3, 2020
- Sharma Kuheena, "Sanitation ministry allows transgender people use
public toilets, wants them recognised as equal citizens, India Today.
Visited on 20 May, 2022
- S. Sushama and another v Commissioner of Police and others, Madras HC,
W.P.No. 7284 of 2021
- Simran Bhasker, No space for Homosexuality in Indian Army, a comparative
study, available at https://lawlex.org/lex-pedia/homosexuality-in-indian-army/20715,
visited on 22 May 2022.
- Supriyo v. UOI WP no. 1011/2022 PIL.
- The Hindu Marriage Act, 1955 s.5 (iii)
- Special Marriage Act, 1954, s.4(c)