India has been facing continuous changes in the pattern of society and its
structure of social – economical, political and cultural fields. We have
witnessed many legal changes which led to controversial as well as pleasing
reactions of citizens. As India always focused on its customs and morals of its
culture, hence homosexuality or homosexuals always found to be in corner and at
unacceptable position in our society. Homosexuality is one of those issues which
has been seen as diplomatic towards Indian cultural but always encountered
neutral attentions from media as well as people.
Homosexuality, being one of the biggest issue in our country witnessed many
evolution within. From getting discrimination and left in corner of society to
getting recognition in national representation in various field. LGBTQ community
faced loads of problems and gained acceptance beautifully in the society, yet
there are various problems which haven't solved, they are still discriminated or
not accepted in various aspect but their journey to get their recognition and
voice themselves as citizen of India has been very high.
Justice Indu Malhotra said in her verdict that History owes an apology to the
members of this community and their families, for the delay in providing
redressal for the ignominy and ostracism that they have suffered through the
centuries. Being decriminalised, homosexuals are still in a phase where
stereotypes and prejudicial towards their community always make them insecure
about their identity.
We have many judicial decisions which recognises LGBTQ community existence and
their rights, which emphasis on that homosexuals are the people who have human
rights and deserves equal representation in every sphere of society, but the
legislature lacked behind to implement basic measure to keep up. They have equal
rights to cohabit, and take forward their relationship but they are still not
given the equality they deserve due to lack to legislative methods.
There are cases which made this happen for LGBTQ community to have basic rights
- Naz Foundation Govt. v. NCT of Delhi:
In this case the petitioner
argued in front of the court that section 377 of IPC violates their basic rights
of life, liberty, dignity and privacy. It discriminates them on the basis of who
In 2009, the High Court of Delhi held that Section 377 of IPC imposed an
unreasonable restriction over two adults engaging in consensual intercourse in
private. Thus, it was in direct violation of their basic fundamental rights
enshrined under Articles 14,15,19 and 21 of the Indian Constitution.
- Suresh Kumar Koushal vs Naz Foundation:
in this case petitioner
challenged the constitutionality of Section 377 in the light of India's customs
In 2013, Supreme court again re-criminalized section 377/ homosexuality. A
bench of Justice GS Singhvi and Justice SJ Mukhopadhaya Court held that LGBT+
persons constituted a 'minuscule minority' and therefore did not deserve
constitutional protection and further observed that Section 377 of IPC did not
suffer from the vice of unconstitutionality.
- In recent case of Navtej Singh Johar v. Union of India  , challenged
the judgement of 2013. In this case supreme court rules that section 377
unconstitutional as it violates the basic right of intimacy, identity and
decriminalised homosexuality. The court emphasised on the meaning of natural and
unnatural focusing on that it curbs the freedom sexual preferences of an
individual. Court also held that sexual-orientation is one's own choice no one
can discriminate anyone on the basic of their sexual identity.
The Supreme court also directed the government to create public awareness
regarding LGBT rights and to eliminate the stigma surrounding the LGBT people.
The judges further elaborated upon the issues surrounding mental health,
dignity, privacy, right to self-determination and trans genders.
Transgender Persons (Protection Of Rights) Bill, 2019
This bill was enacted with an core objective to protect the rights of trans
genders by restricting the discrimination against them in the field of
employment, education, healthcare accessing them by the mean of private or
Hence, this bill was rejected by trans community as it infringes their
fundamental rights as no not go with the NALSA judgement as it snatches the
right to determine one's sexual orientation/identity.
Right To Marriage
In the landmark case of LATA SINGH V. STATE OF UP, the supreme court
interpreted it to be a part of Article 21 of the Indian constitution. The
Supreme Court in this case of inter-caste marriage stated that after a person
becomes major, he/she can marry whomsoever he/she likes. The court further
opined that the maximum the parent can do is that they can cut all their ties
from the children but can't threaten or kill them. Furthermore this landmark
judgement can be interpreted in vide manner to support LGBTQ community.
Protection Against Discrimination At Work Place
LGBT workplace survey of 2016 showed that more than 40% of LGBT people in India
have faced harassment at their workplace because of their gender/ sexual
identity. Many LGBT people often have to hide their sexual identities because of
the fear of potential discrimination or losing their jobs. Therefore the access
to employment and discrimination at the workplace continues to pose a challenge
for the LGBTQIA+ community.
in the cases of Jacqueline Mary V. Superintendent of police, G.Nagalakshmi V.
Director General of Police where the petitioners identifying as females were
removed from their posts on the ground that upon medical examination it was
found that they had intersex variations hence can't hold the post that was
reserved only for females.
Although the court ruled in favour of the petitioners in all the above-mentioned
cases these incidents of discrimination reflects gross inequality and do not
conform with the NALSA ruling. Therefore, it is submitted that this will keep on
continuing until the employment laws are not amended to be inclusive of people
falling outside the gender binary.
The present law i.e. Sexual Harassment of Women at Workplace (Prevention,
Prohibition & Redressal) Act, 2013 : regarding the sexual harassment recognises
only women as a victim and does not take into account the harassment can happen
irrespective of the gender of the person. That is, the aggrieved party can even
be a male, transgender or any person belonging to LGBTQIA+ community as well.
Therefore what we rather need is gender-neutral laws in relation to harassment
at workplaces; But there is another very important argument that can be advanced
here i.e. the sexually coloured remarks or unwelcome behaviour may have a
different interpretation and scope in the case of LGBTQIA+ community. Thus,
considering the rampant transphobia and homophobia, it is essential that the
gender-neutral harassment laws must also be accompanied with strong
anti-discriminatory policies to prevent misuse of such laws against the LGBTQIA+
It has been observed that we as the people of society needs to accept LGBTQA
community as they are and our government needs to take proper steps of protect
them and their tights as citizen of India. It is very inhumane to discriminate
them on the basis of their identity, we need to evolve and be open minded about
Their rights should be recognised as human rights irrespective of their sexual
identity. The laws should be gender neutral as they violates the fundamental
rights of LGBTQ community and they need separate laws to protect them from
offences like lynching, work places discrimination and sexual offences.
- 160 Delhi Law times 277
- Civil appeal No. 10972 of 2013
- (2018) 10 SCC 1
- (2006) 5 SCC 475
- W.P. NO.587 of 2014
- (2014) 7MJ452