Supreme Court Cases on the rights of LGBTQIA+ Persons

Gauri: Hello everyone, Welcome to SCO Explains! I’m Gauri, 

Spandana: and I’m Spandana 

Gauri: and today’s video traces the remarkable evolution of queer persons’ right to marriage in India. 

Spandana: We begin our “Court in Review” with a case from over a decade ago, where the Supreme Court found the criminalisation of consensual homosexual intercourse as constitutional. We then map out how the Court’s jurisprudence evolved to recognise the rights of LGBTQI+ persons. 

Gauri: Across 5 cases we look at how personal liberty, dignity and expression has evolved for the queer community. Let’s dive in!

Our story begins with one provision of the Indian Penal Code—Section 377. This provision criminalised “unnatural offences”. What were these unnatural offences? “Carnal inter­course against the order of nature with any man, woman or animal”. 

The law always viewed consensual intercourse between same-sex persons to come under this scope. In 2009, the Delhi High Court turned this view around. It held that Section 377 ‘cannot’ be used to punish consensual sex between two adults, as it violates the right to privacy and personal liberty under Article 21 of the Constitution. The High Court held that targeting and classifying homosexual persons goes against the equal protection guarantee outlined in Article 14 of the Constitution. 

Several organisations and individuals who were unhappy with this Judgement of the Delhi High Court took the case to the Supreme Court. They argued against the decriminalisation of homosexuality, claiming that the right to privacy should not extend to committing offences. You’ll remember that the IPC had categorised these activities as offences.  They also expressed concerns about the potential impact on marriage and feared that the decision would influence young people to engage in same-sex activities.

In 2013, in Suresh Kumar Koushal v NAZ Foundation, the Supreme Court reversed the Delhi High Court verdict. It held that only Parliament had the authority to decriminalise homosexuality, not the Court. It held that Section 377 didn’t target or classify any group of persons, it simply criminalised certain ‘acts’. They highlighted the relatively small number of individuals within the Queer community who had been prosecuted under Section 377.

Despite this setback, several curative petitions were filed in the Supreme Court asking for this case to be reconsidered. While this was happening, in 2016, five individuals from the LGBTQIA community—renowned Bharatanatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath, and media person Sunil Mehra—filed a fresh writ petition. Their goal was to scrap Section 377 IPC, specifically in cases where it criminalised consensual sex between same-sex individuals. The fruits of this petition would be seen two years later, in 2018. But let’s get to that in a second. 

Spandana: A year after Suresh Kumar Koushal v NAZ Foundation, in 2014, the Supreme Court legally recognised the “third gender” or transgender persons, in National Legal Services Authority v Union of India.  The Supreme Court acknowledged the rights of persons who do not belong to the binary of male and female, to self-identify their gender. The Court clarified that gender identity was not limited to biological characteristics. Instead, it is an innate perception of one’s identity. The Court’s expanded interpretation of ‘dignity’ under Article 21 to include self-expression. It found that self-expression was crucial to lead a life of dignity. 

Further, the Court recognised that the right to equality under Article 14 and freedom of expression under Article 19 were deliberately phrased using gender-neutral language, that is, “all persons” and not just men and women. Further, they held that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community. 

What this case did was explicitly declare that non-binary persons enjoyed the fundamental rights vested in our constitution. This set the background for pushing the envelope of rights from their basic understanding, to secure the rights to a dignified life for the Queer community. It also set the stage for the next case in our list, where 9 judges of the Supreme Court declared privacy a fundamental right. 

Gauri: In 2017, the SC delivered what is perhaps one of the biggest judgements of our generation—Justice K. S. Puttaswamy v Union of India. Here, the Supreme Court recognised the right to privacy as a fundamental right. 

But how does this affect gender identity, sexual orientation, or marriage? Let me read an excerpt from the Puttaswamy judgement:  

‘Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity.’ 

And the next part is important here: 

‘The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.’ 

 So we see here that the Court clearly draws a connection between what it means to enjoy a life of dignity and how the right to self-determination of one’s gender, sexual orientation, family, marriage and other such meaningful aspects of life. This judgement laid a strong foundation for the years to come. 

Spandana: We see its first big effect in 2018 when the Supreme Court decriminalised consensual homosexual intercourse. We go back now to the cases filed in the aftermath of Suresh Kumar Koushal judgement, which now had a new ground to fight on. To quickly recap, in this case, members of the LGBTQIA+ community had challenged section 377 of the Indian Penal Code, which criminalised unnatural sex. This included intercourse between persons of the same sex. 

This 5-judge bench struck down section 377 to the extent that it applied to the queer community. First, the Court identified that discriminating persons based on gender identity or sexual orientation clearly violated articles 14 and 15 of the Constitution. Criminally prosecuting persons for engaging in consensual sexual intercourse, based purely on their sexual preferences violated one’s right to live a life of dignity, and right to personal autonomy and choice. The court also recognised that stifling a person’s identity was a violation of the right to freedom of expression. 

Gauri: Now we come to our 5th and final case in our list. Supriyo Chakraborty v Union of India. Here, two same-sex couples approached the Court seeking legal recognition of marriages between persons of the same sex. Specifically, they argued that section 4(c) of the Special Marriage Act was unconstitutional. This provision only recognises marriage between a ‘male’ and a ‘female’. They argued that excluding queer couples from enjoying the right to marry deprives them of marital benefits such as adoption, surrogacy, inheritance, social security benefits, and more. 

This petition was heard together with a bunch of other cases all seeking the right to marry for non-heterosexual couples. Broadly, the petitioners argued that depriving queer couples the right to marry violates the right to equality, the right to live a life of dignity and of self-expression. 

The Union argued that the Court was not the appropriate forum to ask for this right. Lawmakers would have to gather to discuss whether the Special Marriage Act could include queer couples. They also argued that ancillary rights such as social security benefits and marital benefits could be granted by tweaking relevant laws. Just these “Administrative changes” would be sufficient—the Court need not declare a right to marry. Many advocates also argued that legally recognising queer marriages would adversely affect the welfare of children and would break the ‘natural form of family’. 

This year, a 5-Judge Constitution Bench heard this case for 10 days and completed hearings. We expect the judgement to be released soon. 

Spandana: The petitioners in Supriyo v Union of India appear to have a strong series of precedents to support their claim. But will this be enough to change a law that strikes at the heart of how families are formed in India?

Gauri: Thank you for watching this episode of SCOExplains. Like, Share and subscribe to our Youtube channel for more on the Supreme Court of India.

Spandana: As always visit SCObserver.in for more!