lgbtq+ rights in india

The LGBTQ+ community is one of most marginalised communities in the world and in India. Given the stigma attached to them vis-à-vis their sexual orientation or gender identity, persons identifying as LGBTQ+ are subjected to discrimination and exclusion. Within India, the historical accounts before the arrival of the Britishers are rife with the mentions of persons belonging to the LGBTQ+ community and their status in the society1. However, with the advent of the British Empire, came the Penal Code, 1860, wherein a specific provision was instituted to punish acts which were considered against the order of nature. But such is the nature of time that nothing remains the same! The Britishers were thwarted, and Indians took charge of their nation. Still there was a long way to go for the LGBTQ+ community and lot many struggles and challenges to fight.

Fast forwarding to the last few decades when the LGBTQ+ movement started gaining momentum. From first pro gay rights protest in 1990s2 to 2023 when the Supreme Court of India is deliberating over marriage equality, the LGBTQ+ movement has indeed come a long way. Some archaic laws have been narrowed down and some judicial observations have led to societal discourse.

The Legislature is being called upon to give an earnest thought towards greater recognition of LGBTQ+ rights3 and with Naz4, NALSA5 and Navtej6, the Indian Judiciary, with its interpretations, has already transformed the LGBTQ+ rights landscape in India. Therefore, we have attempted to map the legislative and judicial progression of LGBTQ+ rights in the Country compiling significant statutory provisions and notable judgments by Supreme Court and Indian High Courts.

The Indian Trajectory

History

Often “LGBTQ+” is termed to be a modern phenomenon or an urban elitist concept7; however, Indian history and myths tell a different story altogether. According to noted mythologist, Dr. Devdutta Pattanaik, in ancient India, there were over fifty words for non-heterosexual gender and sexualities in Sanskrit, Prakrit and Tamil- napunsaka, kliba, kinnara, pedi, pandaka. These references are found in Veda, Itihasa, Purana, Kama-shastra, Natya-shastra, Ayurveda, as well as in Jain Agamas and Buddhist Pitakas8.

Ved Vyas' epic Mahabharat mentions a very important character who was “neither a man nor a woman”- Shikhandi, one of the most popular personalities associated with LGBTQ+ community. Shikhandi was born with female genital organs but was raised a son and taught warfare and statecraft by their father King Dhrupad. Shikhandi's presence proved to be instrumental in Pandava's victory in the great war of Mahabharat.9 However, Shikhandi's story is not only instance which finds mention in the Indian epics- stories of Brihannala (Arjun living as a eunuch dance teacher in King Virat's Court); Lord Shiva transforming into a Gopi in order to participate in a Raas-Leela with Lord Krishna; a Puranic story of Budh (god of planet Mercury, who is of indeterminate sex) who later marries Ila, a man who becomes a woman when he accidentally trespasses into an enchanted grove; are some of most important stories acknowledging gender fluidity and queerness. “As Hinduism was less monastic, transgenders were accepted in society, though not mainstreamed, forming part of the community of entertainers, or serving in the temple collective10.

The Dharmashastras valued heterosexual marriage and sex that resulted in production of sons. However, they did acknowledge, albeit grudgingly, the existence of other forms of non-vaginal sex, heterosexual as well as homosexual, and sought to restrain them with fines and penance, without overtly condemning them in religious or moral terms. “India has had a very diverse, generally liberal, range of attitudes towards all kinds of sex, including homosexuality, with warnings about addiction, attachment and obsession”.11

Kamasutra mentions that lesbians were called “Swarinis”, who often married each other and raised children together12. Furthermore, Kamasutra referred to trittiya prakriti, or the third nature of people who cannot be classified as men or women. Pali literature such as Vinaya Pitaka speaks of ‘pandakas' who could not be accommodated in either the male or female sections of Buddhist viharas13.

LGBTQ+ influence was not only limited to texts, but it also found its way into temple art. In the temples of Khajuraho, there are images of women erotically embracing other women and men displaying their genitals to each other. Scholars have generally explained this as an acknowledgement that people engaged in homosexual acts14.

The transgender community was patronised in medieval times by Muslim and Hindu rulers of the land. They were singers and dancers and musicians often employed to serve the women's quarters. They were invited during wedding and childbirths to bless, usher in fertility and ward away malevolent spirits15.

The advent of the Britishers, who were followers of Christianity, led to a new development. The British rulers declared transgender persons and other entertainers as Criminal Tribes16. Another legal development took place in the form of creation of a Penal Code in 1860, wherein Section 377 was inserted which punished “carnal intercourse against the order of nature”. Experts have opined that this colonial law was “largely formulated within the Judeo-Christian scheme of things. The presumption that what is ‘unnatural' in the Biblical paradigm must be ‘unnatural' within the Hindu paradigm17.

Constitution of India

In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the Supreme Court held that Articles 14 to 16 and Articles 19 and 21 of the Constitution recognises gender identity and discriminating someone based on their gender identity, would amount to violation of their Fundamental Rights under the afore-stated Articles.

The Constitution Bench of the Supreme Court of India in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, interpreted that Articles 21, 14, 15 and 19 of the Constitution include the Fundamental Rights to Sexual Identity; Sexual Autonomy; Sexual Privacy, Choice of Partner.

Important Central Legislations

Transgender Persons (Protection of Rights) Act, 2019

In pursuance to the Supreme Court decision in National Legal Services Authority v. Union of India,(2014) 5 SCC 438, wherein the Court directed the Central and State Governments to take various steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their rights under Part III of the Constitution; the Government of India introduced the Transgender Persons (Protection of Rights) Bill, 2016, which was passed by the Lok Sabha and the Rajya Sabha.

However, the 2016 Bill lapsed on dissolution of the Sixteenth Lok Sabha. Hence, the Transgender Persons (Protection of Rights) Bill, 2019 was introduced, which after all the due legislative processes, became the Transgender Persons (Protection of Rights) Act, 2019.

Section 2(k) of the Act defines ‘Transgender Person' as a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.

Chapters II to VI of the legislation contains provisions vis-à-vis Prohibition against Discrimination; Recognition of the Identity of Transgender Persons; Welfare Measures by Government; Obligations of other persons and establishments towards transgender persons and provisions regarding social security, education and health of transgender persons.

Chapter VII contains provisions regarding constitution of National Council for Transgender Persons and Chapter VIII contains enumerates the offences against transgender persons and penalties for the same.

Mental Healthcare Act, 2017

In Navtej Singh (supra) the Supreme Court held that Section 2(1)(s) of the Mental Healthcare Act, 2017 which defines mental illness, when read with Sections 3 and 21(1)(a) of the 2017 Act, “throws to the winds” all earlier misconceptions regarding same-sex couples. The Court held that present definition of mental illness as per the 2017 Act makes it clear that homosexuality is not a mental illness and with this provision, the Parliament has unequivocally removed the stigma of mental illness attached to same sex couples.

Occupational Safety, Health and Working Conditions Code, 2020

Under Chapter V of the Code, titled “Health, Safety and Working Conditions”, Section 23 (2) (viii) mandates the employer to arrange separate and sufficient and hygienic arrangement for latrine and urinal accommodation to male, female and transgender employee.

Under Section 24 (1)(ii) within Chapter VI of the Code, the employer must provide for bathing places and locker rooms for male, female, and transgender employees separately.

Important Judicial Pronouncements

Supreme Court of India

Right of Transgender Community to seek gender identity alternate to the one assigned at the time of birth

The Division Bench of the Supreme Court comprising of KSP Radhakrishnan and A.K. Sikri, JJ., in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, held the following-

  • Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature.

  • Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

  • The Court directed the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

  • Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for Sex Reassignment Surgery for declaring one’s gender is immoral and illegal.

  • Centre and State Governments should take steps to create public awareness so that Transgenders will feel that they are also part and parcel of the social life and be not treated as untouchables.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation and sexual orientation

In a historic decision rendered by the 9-Judge Constitution Bench of the Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, addressed the issue of rights of the LGBTQ+ community and stated that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion:

Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

Section 377, IPC unconstitutional insofar it penalises consensual sexual acts between same-sex adults in private

The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held Section 377, Penal Code, 1860 to be unconstitutional insofar it criminalised gay sex between consenting adults.

The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation had declared Section 377 violative of Arts. 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private. Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377, Penal Code, 1860.

The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375, Penal Code and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The Section does not survive the trinity test of Arts. 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception.

Unmarried persons cannot be denied rights based on narrow patriarchal principles on “permissible sex”

This verdict rendered in X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321 assumes a great significance because the Supreme Court while holding that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried, it used the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.

“Family” includes domestic, unmarried/queer relationships; Childcare/maternity leave benefits cannot be denied if women do not fit into “popular imagination” of a family

In Deepika Singh v. Central Administrative Tribunal, 2022 SCC OnLine SC 1088, wherein maternity leave benefit to a woman not fitting in the popular imagination of a family, was denied, the bench of Dr DY Chandrachud* and AS Bopanna, JJ., observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships.” The Court was of the opinion that the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children, ignores the fact that many circumstances lead to a change in one's familial structure, and that many families do not conform to this expectation to begin with.

The need for a policy providing reasonable accommodation for transgender persons seeking employment in establishments covered by the Transgender Persons Act, 2019

In a writ petition filed by a transgender woman seeking direction to the respondents to consider her candidature for the post of cabin crew in Air India, the division bench of Dr. D.Y. Chandrachud and Hima Kohli, JJ., in Shanavi Ponnusamy v. Ministry of Civil Aviation, 2022 SCC OnLine SC 1581, directed the Central Government to consult the National Council, to devise a policy framework in terms of which reasonable accommodation can be provided for transgender persons in seeking recourse to avenues of employment in establishments covered by the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act'). Further, it directed the Central Government to implement the provisions of the said Act in letter and spirit by formulating appropriate policies and to provide clear guidance and enforceable standards to all other entities, including, those of the Union Government, State Governments and establishments governed by the 2019 Act.

Ongoing case for legal recognition of same-sex marriage in India

Currently, the Constitution Bench of the Supreme Court is occupied with the issues surrounding the legal recognition of same-sex marriage in India. The 5-Judge Bench of the Court comprising of Dr. D.Y. Chandrachud, CJ., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha J.J., commenced the hearing dated 18-04-2023.

In the case titled Supriyo v. Union of India,18 the petitioners have sought recognition of same-sex marriages in the year 2022 under several acts, including the Special Marriage Act, 1954, the Foreign Marriage Act, 1969 and the Hindu Marriage Act, 1955 and the same be made gender neutral.

The High Courts

Delhi High Court

S. 377 insofar it criminalises consensual sexual acts of adults in private, is violative of Arts. 21, 14 and 15 of the Constitution: Delhi HC

The Delhi High Court in this historic verdict of Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762 took the first bold step of decriminalising Section 377 of the Penal Code, 1860 declaring it to be violative of the Constitution. The Division Bench of Ajit Prakash Shah, C.J. and S. Muralidhar, J., read down Section 377 to hold that the provisions will be attracted in cases of non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. The Court stated that “Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination”.

However, the High Court's verdict was reversed by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where the Division Bench of G.S. Singhvi and S.J. Mukhopadhyaya, JJ., held Section 377 to be constitutional. But in 2018, the Constitution Bench of the Supreme Court in Navtej Singh (supra) affirmed the stand taken by the Delhi High Court in Naz Foundation (supra) thereby effectively overruling Suresh Koushal (supra).

Madras High Court

Transgender female is a “bride” under Hindu Marriage Act; no impediment in registration of transgenders marriage: Madras HC

In a landmark Judgment, G.R. Swaminathan, J., in Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779 held that a marriage solemnized between a male and a transwoman, both professing Hindu Religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. While holding so, said the Court, “This Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart”.

LGBTQIA+ community sidelined from society's mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights: Madras HC

In S. Sushma v. State, 2022 SCC OnLine Mad 4255,relating to the rights of the LGBTQIA+ community, N. Anand Venkatesh, J. observed that six months' time sought by the Tamil Nadu Government to finalize the Transgender Policy and the rules is completely unacceptable and this shows that priority is not being given to this issue and expects the Government to appreciate the concern shown by this Court.

Madras HC issues interim directions for proper recognition of LGBTQIA+ rights and ensure their safety

N. Anand Venkatesh, J., in S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096, issued interim directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life of their choice. The Bench itself went under a counselling session and gained a great amount of insight and understanding and felt that further interaction with person(s) who belong to the LGBTQIA+ community would be greatly instrumental to help myself understand the ground realities, emotions, social discrimination and exclusion and several other difficulties faced by the community.

The Court made profound observations regarding the LGBTQIA+ community-

“Unlike regular litigations, the present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition. That being said, I also felt that I remove the “Lordship's” hat and instead wear the hat of the average commoner in the society, who have not given thought to understand or accept, who are attempting to understand, who totally refuse to understand or accept the LGBTQIA+ community. I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination. Society and my upbringing have always treated the terms “homosexual”, “gay”, “lesbian” as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions”.

Transgender persons seeking admissions to be placed in special category; Minimal number of Transgender persons in State not a valid excuse: Madras HC

In a writ petition filed for calling the records of the prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, and to quash the same as illegal for not categorising transgenders under special category, and further to direct the respondent to admit the petitioner in the said Course under special category as transgender, R. Suresh Kumar, J. in S. Tamilselvi v. Secretary to Government, 2022 SCC OnLine Mad 4879, directed the respondent to treat the petitioner as the third gender/transgender and accordingly, place her in a special category for the purpose of admission to the said course for which the merit list has been issued.

Karnataka High Court

Self-identification of one's gender lies at the heart of Right to Life and Personal Liberty and State authorities are obligated to give legal recognition to the same: Karnataka HC

John Michael Cunha J., in Christina Lobo v. State of Karnataka, 2020 SCC OnLine Kar 1634, while allowing the present writ petition moved by a transgender against the declaration of her self- identified gender in official documents, reiterated the observations made in NALSA (supra) and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020. “Transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Transgender Persons Act shall not be required to submit an application for certificate of identity under these rules: Provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act”.

Kerala High Court

Forced Conversion Therapy of LGBTQ+ community | Kerala HC directs State to constitute an expert committee for forming guidelines against such therapies

V. Kunhikrishnan, J., in Queerala An Organization for Malayali LGBTIQ Community v. State of Kerala,19 directed the Kerala government to take strict action against forced conversion therapy of LGBTQA+ community in the State. The Bench also directed the government to constitute an expert committee and form a guideline based on that in this regard.

In absence of special category, transgenders should be allowed to participate in their self-perceived gender category; Kerala HC upholds transgenders' right to equal participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., in Anamika v. State of Kerala20, held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. On being denied participation in the District Level Judo competition, the petitioner, a transsexual person, whose chosen self-perceived gender identity is woman, had approached the Court with her grievances. The petitioner underwent Sex Reassignment Surgery and claimed that the transition is complete. The Court opined that a transgender person has an equal right to participate in competitions. Therefore, the Court held that in the absence of any category for participating transgender persons, the organisers have to permit the petitioner to participate in her chosen category.

[Transgender in NCC] “We cannot take recourse to the outdated provisions of 1948 to deal with the realities of life in the year 2021”; Kerala HC directs NCC to consider enrolment of a trans woman in the female wing

In a historic judgment Anu Sivaraman, J., in Hina Haneefa v. State of Kerala, 2021 SCC OnLine Ker 4755, broke the norm by allowing trans women to appear for enrolment in the National Cadet Corps female wing. The Bench remarked, “Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self-perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self -perceived gender, that is, the female gender.”

Live-in relationship of a lesbian couple is not violative of any law and is not a crime: Kerala High Court

A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., in Sreeja S. v. Commissioner of Police, 2018 SCC OnLine Ker 3578, while hearing a habeas corpus petition filed by the partner of a lesbian held that persons of the same gender are entitled to be in a live-in relationship. The question before the court was whether the detenue could be permitted to go along with the petitioner to lead a live-in relationship because both of them belonged to the same gender and could not solemnize a valid marriage between them. The Bench held that live-in relationship between petitioner and the detenue would not offend any provision of the law and directed the detenue to be set at liberty to go along with the petitioner, as desired by her.

Orissa High Court

Orissa HC analyses Right of Transgender unmarried daughter to choose gender and avail family pension

A.K. Mohapatra, J., Kantaro Kondagari v. State of Odisha, 2022 SCC OnLine Ori 1960, directed to process the application for grant of family pension to the transgender woman as expeditiously as possible preferably within a period of six weeks from the date of communication of a certified copy of the order. The Court opined that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

Andhra Pradesh High Court

Reservation for LGBTQ+ community | Can a transgender person claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? Andhra Pradesh HC answers

Considering that the direction issued by the Supreme Court in NALSA (supra),  is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench, in Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Madhya Pradesh High Court

MPSLSA to provide assistance to transgenders in getting their Identity Cards/Transgender Cards; MP High Court directs State to ensure other benefits

The Division Bench of Mohammad Rafiq, CJ and Vijay Kumar Shukla, J., in Noori v. State of M.P.21, gathered that most of the transgenders face difficulty not only because they do not have transgender identity card, but even the ‘Ration' Cards were also not issued in their names. It was demonstrated that owing to non-availability of ‘Ration' Card, the transgenders community were not in a position to get their ‘Aadhar' Card issued. The Court while taking in regard the situation faced by the community directed the M.P. State Legal Service Authority to provide assistance to all such transgenders across the State by getting a survey conducted through Paralegal Volunteers and help them in getting their Identity Cards/Transgender Cards, ‘Ration' Cards and ‘Aadhar' Cards prepared. The respondents-State is directed to place on record the relevant material showing other benefits which are being provided to the transgender community in the State of Madhya Pradesh under any other scheme of the Central Government/State Government.

Patna High Court

Patna High Court issues directions to ensure guidelines adopted by the State in relation to protect transgender persons in conflict with law

In LAW Foundation v. State of Bihar, 2022 SCC OnLine Pat 2371, the division bench of Sanjay Karol, CJ. and S. Kumar, J. has observed that certain measures have been taken in watching and protecting the interest of the transgender community, who are in conflict with the law, and a separate cell in the jails is earmarked for lodging the inmates hailing from such a community. Further, directed certain instructions to the State. The Court directed that the State shall ensure that the guidelines issued by the Government of India and adopted by the State of Bihar in relation to housing the members of the transgender community in jails shall be implemented in letter and spirit.

Uttaranchal High Court

Individuals of same sex have the right to live together outside the wedlock; Live-in relationship recognised by legislature: Uttaranchal HC

Sharad Kumar Sharma, J., in Madhu Bala v. State of Uttarakhand, 2020 SCC OnLine Utt 276, while addressing a habeas corpus petition observed that, The intimacy of marriage, including the choice of partner, which individual make, on whether or not to marry and whom to marry are the aspects which exclusively lies outside the control of the State or the Society. Consensual cohabitation between two adults of the same sex cannot be illegal, far or less a crime because its a fundamental right which is being guaranteed to the person under Article 21 of the Constitution.

Punjab and Haryana High Court

“Social ethos, outlook & philosophy appears to be evolving amongst gay couples so as to openly come out of closets”: Punjab and Haryana HC

Arun Monga, J., in Paramjit Kaur v. State of Punjab, 2020 SCC OnLine P&H 994, addressed a matter wherein, two girls were in a live-in relationship and were constantly receiving serious threats from their families, due to which they prayed for protection. Petitioners sought directions to the official respondents to protect their life and liberty as they apprehended threat at the hands of private respondents 4 to 10. Both the petitioners are girls and they are both major having mutual liking for each other. They both have been in live-in relationship for the past 6 months. Court added that, What is perhaps coming in the way of petitioners is the social unacceptability of their relationship by their parents/family members, owing to which they are living under constant fear for the reasons stated in the petition which are not being repeated for the sake of privacy and brevity. The Court held that the petitioners are entitled to protection of their lives as envisaged under Article 21 of the Constitution, regardless of the relationship between them.

Frequently Asked Questions (FAQs)

Q. What is the full form of LGBTQ?

A. “LGBT” is an abbreviation of Lesbian, Gay, Bisexual, Transgender; the “Q” in LGBTQ can stand for “questioning” — as in still exploring one's sexuality — or “queer,” or sometimes both.22

LGBTQIA+ is an abbreviation of Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual and more.23

Q. Is same-sex marriage legal in India?

A. No, same sex marriage is not legally recognised in India as of now. The issue is currently sub-judice before the Constitution Bench of the Supreme Court of India in the case titled- Supriyo v. Union of India.

Q. Are same-sex relationships legal in India?

A. Yes, the Constitution Bench of the Supreme Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held Section 377, Penal Code, 1860 to be unconstitutional insofar it criminalised gay sex between consenting adults.

Q. Does Supreme Court recognise Third Gender in India?

A. The Division Bench of the Supreme Court comprising of KSP Radhakrishnan and A.K. Sikri, JJ., in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, held that Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by Parliament and the State Legislatures.


1. Section 377 Decriminalisation Anniversary: A History of LGBT Rights and Laws in India (thequint.com)

2. How the LGBTQ rights movement in India gained momentum – The Hindu

3. Lok Sabha members introduce private member Bills for the benefit of the LGBTQIA community – The Hindu

4. 2009 SCC OnLine Del 1762

5. (2014) 5 SCC 438

6. (2018) 10 SCC 1

7. Same-sex marriage an urban elitist concept: Centre tells Supreme Court – India Today

8. 713 Devdutt Pattanaik, The LGBTQ movement in India (india-seminar.com)

9. On Krishna’s Chariot stands Shikhandi (devdutt.com)

10. Gender Fluidity in Hinduism (devdutt.com)

11. What do Manusmriti and Dharmashastra have to say about Homosexuality (devdutt.com)

12. A Brief History of LGBTQ+ in India — The CBS Post (du.ac.in)

13. The Hijra Legacy (devdutt.com)

14. 10 instances of homosexuality among LGBTs in ancient India – India Today

15. The Hijra Legacy (devdutt.com)

16. The Hijra Legacy (devdutt.com)

17. Man who was a Woman (devdutt.com)

18. Writ Petition (Civil) 1011 of 2022

19. WP(C) No. 21202 of 2020

20. WP(C) No. 24571 of 2022

21. WP-10027 of 2021

22. What the ‘Q’ in LGBTQ stands for, and other identity terms explained (cnn.com)

23. About LGBTQ

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