Published on : 25/05/2025

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From criminalisation to inclusion : Legal and social progress for LGBTQ individuals in India

From criminalisation to inclusion : Legal and social progress for lgbt individuals in India

Authored by  Ms. Urvashi Pacherya

Assistant Professor

Sant Vinoba PG college Deoria

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Abstract

In India LGBT rights went through legal and social metamorphosis after the significant judicial pronouncement of Navtej Singh Johar case in 2018. The decriminalization of homosexuality by declaring Sec 377 of Indian Penal Code in violation of fundamental rights of Indian Constitution and hence void under law. This served as a watershed movement for LGBT community in India who were treated equally and no discrimination made on their gender identity and sexual orientation. This paper explores and analysis the aftermath of the above verdict in legal and social context. The journey of LGBT individuals from isolation and ostracization of the society to acceptance and inclusion. Other social and legal aspects like marital rights, adoption, workplace issues and anti- discrimination laws on transgender would also be reviewed and studied. This research would navigate the reality of LGBT individuals through society and cultural connotations and legal reforms by the Central and State governments.

Introduction

In 2018 Indian Apex court[1] achieved pinnacle of success in human rights when it declared that LGBT individuals are not to be treated as lessor citizens of India their gender identity and sexual orientation would not be the reason for mistreatment and discrimination. Supreme Court envisaged “ Sec 377 subjects the LGBT community to societal pariah and dereliction and is therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment therefore ,Sec 377 is liable to be partially struck down for being violative of Art 14 of the Constitution.”[2]

 Indian Constitution is a dynamic constitution which has evolved right from its enforceability it has been amended multiple times to be in consonance with spirit of law and contemporary times. The most imperative issue is “ constitutional morality” which is bedrock of Indian constitution thus the essential issues subjected to human rights has to be tested on the said principle. India is a heterogeneous society wherein myriad thoughts and personal philosophies are advocated based on their religious and cultural views hence it is imperative that constitutional decisions should be based on constitutional morality. Constitutional morality has been illuminated by learned judges in the Navtej decision as “ It is only constitutional morality that can be allowed to permeate into the Rule of Law- Constitutional morality embraces within its sphere several virtues foremost of them being the espousal of pluralistic and inclusive society- The concept of Constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and curb any attempt by the majority to usurp the rights and freedom of a smaller or miniscule section of the populace- Constitutional morality cannot be martyred at the altar of social morality- The veil of social morality cannot be used to violate fundamental rights of even single individual for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.”[3]Thus the main objective of the ‘constitutional morality’ vested in Indian constitution is to act as a guardian to the discriminated and exploited minorities in this case LGBT community from majoritarian atrocities. Supreme Court observed the dynamic and transformative nature of the constitution.[4] It was elaborated by the Court that the main function of the constitution is to transform the Indian society by the ideals stated under the preamble of the constitution that is justice, liberty, equality and fraternity. The flexibility and the dynamism of the Constitution makes it a living and organic document. Thus by decriminalization of voluntarily same –sex relationship had given the legal sanctity to the LGBT relationships and has brought respite to this minuscule population which has faced ridicule, slurs and ostracisation from the conservative Indian society. But other than decriminalization social transformation of LGBT individuals has to be studied with respect to existing laws and incidental rights like marriage, adoption etc. Whether Navtej verdict has revamped the status quo of LGBT in India or still legal and social efforts are essential to make them inclusive in Indian Society.                                                                      

Marriage rights and LGBT individuals.

Same sex marriage is a complex issue in a conservative and traditional nation like India wherein till 2018 we considered homosexuality as an offence though the apex courts verdict mostly Madras High Court suggested “Deed of familial Association” by Justice Anand Venkatesh.[5] It is judicial activism to protect the LGBT individuals. The said legal document would protect the LGBT couples from harassment and discrimination. It would provide legal recognition to their relationship in the form of registration of their union. This proposed deed would allow same- sex couple to register and obtain limited protection for their relationships without equating them to marriage. This limited protection to LGBT couples would safeguard their relationship as Supreme court in the latest verdict has unanimously declared that marriage is not a fundamental right and thus declined to grant same sex marriage legal validity[6]. Though in the past decisions of the Court like Shakti Vahini v Union of India[7] wherein it remunerated that right to choose one’s partner is a fundamental right irrespective of family, community or society which is vested under Article 19 and Article 21 respectively. In the other famous ‘Hadiya case’[8] the Court declared every citizen has right of autonomy to choose his/her life partner under Indian constitution. Beyond these legal precedents India being signatory to the Universal Declaration of Human Rights ( UDHR).  Article 16 (1) of the UDHR states that “ Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family”.Thus it recognize the right to marry as a human right. This right is also acknowledged by Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) as well. Thus it can be concluded that the Supreme Court has interpreted the issue of marriage in its literal sense without giving it expansive interpretation as it has done in its earlier decisions. It cannot be denied that the Apex Court has made efficacious efforts in providing rights to the LGBT individuals within its jurisdictional powers. But marriage as such is a state regulated institution and therefore it is beyond the jurisdiction of the court to provide right to marriage within the existing personal laws. Thus after the said judgment it is on the legislative to provide remedy in the form of new statute which recognize the martial rights of LGBT couple or they can allow the registration of such unions and hence provide limited recognition to these couples. Marriage is an important institution and with it many incidental rights like succession, maintenance etc come into existence. Thus the legislative should make assiduous efforts in imparting legal recognition to LGBT couples. In the past marriage between cis gender male and trans woman has been legally recognized by Indian courts under Hindu Marriage Act.[9]

Adoption Rights and LGBT couples.

Adoption is a legal right wherein the couple who are not able to have biological children adopt children from the adoption agency or in family or friends. This right is given to single individuals and couples also. These rights are protected under personal laws like Hindu Adoption and Maintenance Act 1956 and substantive law irrespective of religion the Juvenile Justice ( Care and Protection of Children) Act 2015. LGBT individuals as couples do not get any right of adoption in the above said laws. As declared by Supreme Court in the case of Supriyo Chakroborty that only married heterosexual couples or single individuals can adopt. Thus the existing laws which protects adoption rights in India allows legally married couple to adopt .[10] 

Hindu Adoption and Maintenance Act, 1956 : Sec7 and Sec 8 of HAMA, states the adoption capacity of Hindu male and female to take in adoption. The use of the world “husband” and “wife” implies that the legally married couple can only take in adoption thus LGBT couples are prohibited from adopting under the said act. Even single transgenders cannot adopt as the words male and female are given under Section 7 and 8. Thus it can be rightly interpreted that LGBT couples cannot adopt under HAMA. The Juvenile Justice ( Care and Protection of Children) Act , 2015 provides adoption rights to any person irrespective of their religion.[11] The provisions rules and detailed guidelines for adoption are given in Adoption Regulations, 2017, framed by the Central Adoption Resource Authority ( CARA) under Section 68(c) of the JJ Act 2015. CARA is a statutory body in adoption matters under the Ministry of Women and Child Development. Section 57 of the JJ Act read with Regulation 5 of the Adoption Regulations deal with the capacity of prospective adoptive parents. One of the essential condition is that “No kid shall be placed in adoption to a couple unless they have at least two years of solid marital relationship.”[12] So again this acts as an impediment for the same-sex couples as they cannot be Prospective Adoptive Parents because they cannot prove two years of solid marital relationship because they cannot have legal marriage in India. New CARA regulations has allowed for live-in couples to become prospective adoptive parents on an individual basis.[13] However it can be assumed that same-sex spouses would not be able to avail this benefit because the authorities would refuse them because of no clear directive on whether or not same-sex couple would be included in this circular. The issue related to sex-reassignment surgery of the prospective parent has not been addressed in the JJ Act. The Law Commission of India has suggested substituting the term “parents” in place of “mother and father” in the provisions of JJ Act and adopting regulations to enable that all gender identities can be benefited from the said Act sans any discrimination. Another important statute Surrogacy Bill, as per Section 2 of the Bill a “couple” means a “legally married man and woman”. Therefore it can be inferred that LGBT couple cannot have a child together through surrogacy . Such objection in the surrogacy bill is the violation of basic fundamental right of the sexual minority in the country. The Transgender Persons ( Protection of right) Act 2019 passed by the Parliament with the object of protecting the rights of the transgender and no discrimination to the transgender has no provisions on the legal rights like marriage, adoption etc related to transgender. Thus it is essential in todays time to bring appropriate amendment to the Juvenile Justice Act and Adoption Regulations so that it has broader scope and include LGBT couples also in the provisions. 

Workplace discrimination and harassment vis-à-vis LGBT individuals

There is no legal forum or state support which addresses the issues related to workplace discrimination and harassment which the LGBT employees faces on regular basis. Although the Constitution prohibits discrimination on the basis of sex, such right was extended recently to LGBT individuals. In the judicial pronouncement of NALSA[14] case the expansive interpretation of the constitutional protection against “discrimination on the grounds of sex” to include discrimination based on sexual orientation and gender identity. This discrimination on the basis of non- confirmation of stereotypical generalization of binary genders infringes the right to equality protected under the Indian Constitution. Later, in the judgment of Navtej Singh Johar the Court advocated that the sexual orientation and the ability of self-determination of gender is the fundamental right of every individual.

Nevertheless, LGBT employees faces discrimination at workplace through ostracisation and isolation by other collogues and employers. The failure to enact anti discriminations laws to protect LGBT employees at workplace by the policy makers proves that the interest of this miniscule population is overlooked and non prioritized by the legislatures. Unlike Sexual Harassment of Woman at Workplace ( Prevention, Prohibition and Redressal) Act 2013 there is no law addressing workplace harassment of LGBT individuals. LGBT employees faces different forms of harassment such as homophobic slurs and innuendos, insults based on sexuality, degrading references to a person’s sexual orientation etc.

Most recently, in 2019 the Centre for Law and Policy Research drafted a comprehensive and inclusive “Equality Bill” that presents the lacunas that were ignored in previous efforts. This bill insures protection from direct or indirect forms of varied discrimination based on a broad range of “ protected characteristics”, including sex, sexual orientation, gender identity, gender expression, disability, marital status, political beliefs, linguistic identity, or a combination of these.[15]The said bill also advices a legal framework of setting up “Equality Courts” which are District Courts conferred with exclusive jurisdiction and powers to address infringement of its provisions and provide legal remedies. If effectively executed with judicial officers who are specialized by proper gender sensitization training, these courts can help in extending inclusive jurisdiction and rectify the errors of the precedent. Chapter III of the Equality Bill specifically deals with workplace discrimination by private employers. This includes removing discriminatory policies of hiring and firing, providing fair compensation and terms and conditions of work, prohibiting the classification or segregation of employees in a way that they deprives them for employment opportunities, as well as allocation of work. In the past in 2016, Member of Parliament Shashi Tharoor, introduced Anti-Discrimination and Equality Bill. The Lower House of Parliament (including some of his party members) rejected the bill.Thus undertaking the importance to enact an intersectional understanding of how discrimination works, the Supreme Court has availed the redressal choice to individuals to challenge such discriminatory practices against LGBT individuals at workplace. However, due to doctrine of separation of powers, the judiciary cannot implement the laws which are specially for LGBT individuals this is legislative domain as its power is limited to interpreting the existing laws and rectifying the lacunas present in those laws. Another suggestion could be to include LGBT individuals in the 2013 Act which is specifically drawn for the female harassment. 

Transgender Persons ( Protection of Rights) Acts 2019 and its shortcomings 

In India this is the exclusive Act which aims to protect the rights of transgender and underlining the discrimination faced by the transgender community in the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and use of public services and benefits. But the said Act has met with lot of criticism as are following

The definition of term “transgender” is not appropriate in literal sense. This Act defines a “transgender person” as “a person whose gender does not match with the gender assigned to that person with intersex variations”.[16] This definition is confused with that of intersex person. Transgender person are those who feel they were born in wrong gender while intersex are those who are born with physical attributions which do not conform their gender binary. This could led to an extinction of intersex identity.[17]

LGBT community had found some respite through Navtej Singh Johar judgment which legalized same sex relationship. This legal milestone has been accompanied by growing representation of LGBT individuals in media through art and cinema. But the lukewarm response of the government by not enacting non- discriminatory laws which would protect and guarantee the rights of LGBT individuals. Transgender Act 2019 which has not adequately been able to address pertinent issues involving transgender. These challenges are elementary and hence they can be addressed by legal amendments and judicial activism by the Apex court.There should be legal mechanism to resolve their grievances in the matters like workplace harassment. It should be mandatory that every institution should have internal regulatory mechanism which solves issues related to harassment and discrimination of LGBT employees. The legislature should make special laws which addresses issues like marriage, civil unions, inheritance, maintenance etc related to LGBT couples. Government policies should be made so that they are included in every sphere of social paradigm like hetero sexual couples.Thus the road ahead to inclusion of LGBT individuals is a combination of legal reforms, social awareness and institutional support. It is essential that society accepts them without any prejudice and deep rooted acrimony as natural human being like other heterosexual individuals.

 

[1] Navtej Singh Johar v Union of India (2018) INSC 790

[2] Ibid 

[3] Navtej Singh Johar v Union of India (2018) INSC 790 (Per Deepak Misra CJI & Khanwilkar, J)

[4] Shraddha Chaudhary “ Navtej Singh Johar v Union of India : Love in Legal Reasoning” NUJS Law Review 3-4 (2019).

[5] S.Sushma and Ors v Commissioner of Police (2021) W.P. NO 7284 of 2021

[6] Supriyo@ Supriya Chakraborty & Anr v Union of India (2023) 16 S.C.R.1209.

[7] AIR 2018 SC 1601 

[8] Shafin Jahan v Ashokan K.M. and Ors (2018) 4 S.C.R. 955

[9] Arunkumar and Another v The Inspector General of Registration and Ors ( WP(MD) No 4125 of 2019.

[10] Priya Totla , Rekha P. Pahuja “ Adoption Rights of the LGBTQ Community in India” Pimpri Law Review Journal Vol 3 Issue 2 2024

[11] Juvenile Justice ( care and protection of children) Act 2015, Section 58 (1) 

[12] Adoption Regulation 2017, Section 5 (3)

[13] Central Adoption Resource Authority, Circular, “ Reconsideration of decision to allow single PAPs, in live-in-relationship." CARA-ICA012/3/2017 (Issued on October 11, 2018) http://cara.nic.in/PDF/Circular/reconsideration.pdf ( Last visited on 12 March 2025)

[14] National Legal Services Authority v Union of India (2014) 5 SCC 438.

[15] Ashna Devaprasad “ Creating LGBT Inclusive Workplace in India : The Push for an Anti- Discrimination Law.”Georgetown Public Policy Review Oct 5, 2020

[16] The Transgender Persons (Protection of Rights) Act , 2019 Section 2(k).

[17] Kushagra Kundan & Nidhi Prakriti “The Third Gender: Protection or Discrimination? A Critique of Transgender Rights Act, 2019” The Society For Constitutional Law Discussion August 21, 2020

[18] The Transgender Persons ( Protection of Rights ) Act Section 3