During the second day of the hearing, the court received presentations regarding the evolving legal framework surrounding LGBTQ rights and the development of an individual’s right to select their partner. The following are some of the significant cases that illustrate the transformation in the law throughout the years.
NALSA v Union of India
Following the endorsement of the constitutional validity of Section 377 of the Indian Penal Code by a two-judge Bench of the Supreme Court in ‘Suresh Koushal v Union of India’, several months later, in April 2014, another Bench affirmed the constitutional rights of transgender individuals under Articles 14, 15, 19, and 21 of the Constitution. The Court upheld the right of transgender persons to self-identify their gender and directed the central and state governments to legally recognize their gender identity, whether it be male, female, or the third gender. This decision in ‘NALSA’ was reached even though the Court had previously dismissed virtually identical arguments in the ‘Suresh Koushal’ case.
KS Puttaswamy v Union of India
In 2017, the right to privacy was recognized as a fundamental right under the Constitution by a unanimous decision of a nine-judge Bench of the Supreme Court. This ruling overruled the 2013 ‘Suresh Koushal’ verdict, which was seen as a “discordant note” in the development of constitutional jurisprudence regarding the right to privacy. The expression “so-called” in the Koushal ruling, which suggested that the rights of LGBT persons were illusory, was deemed unsustainable by the Court. Justice DY Chandrachud’s concurring opinion emphasized that the rights of the LGBT population are genuine rights that are grounded in constitutional doctrine, are essential to their identity, and are protected by the right to life, privacy, dignity, liberty, and freedom. Discrimination against individuals based on their sexual orientation is a violation of their right to equal protection under the law.
Shafin Jahan v Union of India
In March 2018, the Supreme Court of India made a landmark ruling recognizing the right to choose one’s partner as a fundamental aspect of the right to liberty and dignity. This ruling overturned a judgment by the Kerala High Court that had invalidated the marriage of a 24-year-old woman who had converted to Islam and wedded a man of her choice. The Supreme Court asserted that the choice of a life partner, whether within or outside of marriage, is a personal decision that falls exclusively within an individual’s domain. The Court also emphasized that matters of faith should not affect an individual’s absolute right to choose a partner. The privacy and intimacy of marriage were deemed inviolable and, therefore, should not be subject to social approval for recognition.
Navtej Johar v Union of India
In August 2018, the Supreme Court of India heard a curative petition challenging the ‘Koushal’ ruling. The Court’s five-judge Constitution Bench struck down Section 377 of the Indian Penal Code to the extent that it criminalized homosexuality. The ‘Navtej’ verdict established that the LGBTQ community should be treated as equal citizens and emphasized that discrimination based on sexual orientation and gender is unconstitutional. Essentially, the ruling highlighted that the law should not discriminate against individuals on the basis of their sexual orientation or gender identity.
Deepika Singh vs Central Administrative Tribunal
In August of last year, the Supreme Court of India issued a decision in the case of Deepika Singh v. Central Administrative Tribunal, ruling in favor of a woman who was denied maternity leave for her first biological child. The reason given was that she had already utilized the benefit for her two non-biological children. The verdict recognized the existence of “atypical” families, including those in queer marriages, that cannot be restricted to traditional parenting roles.
Justice Chandrachud stated that many families do not conform to societal expectations from the outset. Familial relationships can take many forms, including domestic partnerships, unmarried partnerships, and queer relationships. A household can also be a single-parent household for various reasons, such as the death of a spouse, separation, or divorce. Similarly, guardians and caretakers of children (who typically assume the roles of “mother” and “father”) may change due to remarriage, adoption, or fostering. Although these manifestations of love and family may not be considered typical, they are just as real as their traditional counterparts. Such atypical forms of the family unit should receive equal legal protection and social welfare benefits.
Written by Vaishnavi Goel (BA.LLB), 6TH Semester, Punjab School of Law, Punjabi University, Patiala
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