Introduction to Right of LGBTQ by Rubi Yadav @Lexcliq


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 have been seen as diplomatic towards Indian cultural but always encountered neutral attentions from media as well as people.

Homosexuality, being one of the biggest issues in our country witnessed many evolutions 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.

Judicial Pronouncement

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 decriminalized, 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 recognize LGBTQ community existence and their rights, which emphasis on that homosexuals are the people who have human rights and deserve 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 they are.

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 v. Naz Foundation:

In this case petitioner challenged the constitutionality of Section 377 in the light of India’s customs and values.
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 judgment of 2013. In this case Supreme Court rules that section 377 unconstitutional as it violates the basic right of intimacy, identity and decriminalized homosexuality. The court emphasized 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 a 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 governmental organization.

Hence, this bill was rejected by trans community as it infringes their fundamental rights as no not go with the NALSA judgment 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 judgment 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.

The present law i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013: regarding the sexual harassment recognizes 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+ community.

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 it.

Their rights should be recognized 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.

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