LGBTQ+

 In India, LGBTQ+ rights have evolved significantly through landmark court decisions and legislation, primarily based on the Indian Constitution. The Supreme Court decriminalized consensual same-sex relations by partially striking down Section 377 of the Indian Penal Code in the Navtej Singh Johar case (2018), citing violations of Articles 14, 15, 19, and 21. Further, the National Legal Services Authority v. Union of India (2014) judgment recognized gender identity as a fundamental right, and the Transgender Persons (Protection of Rights) Act, 2019 prohibits discrimination against the transgender community. While same-sex marriage remains unrecognized, courts continue to affirm rights to dignity, privacy, and cohabitation for same-sex couples. 

Landmark Case Law
  • Naz Foundation v. Govt. of NCT of Delhi (2009): The Delhi High Court ruled Section 377 was unconstitutional as it violated the right to privacy and personal liberty under Article 21 and the equal protection guarantee under Article 14.
  • Suresh Kaushal v. Union of India (2013): The Supreme Court overturned the Delhi High Court’s ruling, stating that Section 377 was a valid law enacted by Parliament, but it was later challenged again.
  • National Legal Services Authority (NALSA) v. Union of India (2014): The Supreme Court held that Articles 14, 15, 19, and 21 of the Constitution protect a person's gender identity, and discriminating based on it is a violation of fundamental rights. It affirmed the right of transgender people to self-determine their gender identity.
  • Navtej Singh Johar v. Union of India (2018): A five-judge Constitution Bench of the Supreme Court unanimously struck down Section 377 of the IPC to the extent it criminalized consensual same-sex relationships. The court held that it violated the fundamental rights to equality (Article 14), dignity, privacy (Article 21), and freedom of expression (Article 19).
  • Anjali Guru Sanjana Jaan v. State of Maharashtra & Ors. (2021): The Bombay High Court upheld a transgender individual's right to self-identify for Village Panchayat elections.
  • Supreme Court judgment on same-sex marriage (2023): The Supreme Court denied petitions to legalize same-sex marriage, stating that changing marriage laws is the legislature's responsibility. However, the court affirmed the right of same-sex couples to live together and acknowledged the need for a government committee to address other rights for queer couples. 
Key Legislation
  • The Transgender Persons (Protection of Rights) Act, 2019:
    • Provisions: This act prohibits discrimination against transgender people and provides for legal recognition of their gender identity.
    • Protection: It includes provisions to punish various forms of abuse, such as forcing a transgender person to leave their home or denying them public access.
    • Welfare: It also aims to provide medical facilities, shelter homes, and rehabilitation for the transgender community. 
Constitutional Interpretation
  • Article 14 (Equality): Interpreted to include the prohibition of discrimination based on sexual orientation and gender identity.
  • Article 15 (Prohibition of Discrimination): Interpreted to include non-discrimination on the grounds of sexual orientation and gender identity.
  • Article 21 (Right to Life and Personal Liberty): This article has been expanded to include the right to live with dignity, self-determination, and privacy, which are crucial for LGBTQ+ individuals in making personal decisions about their identity and relationships.
  • Article 19(1)(a) (Freedom of Expression): Extended to include the right to express one's gender identity and gender expression. 

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