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Judicial Activism In The Advancement Of LGBTQ Rights

After independence, India adopted the horizontal structure of government that most democratic countries follow. In this type of structure, the powers are divided between the legislature, the executive, and the judiciary. The main function of the legislature is to make laws and the executive is the one who enforces these laws and the judiciary is the protector of the fundamental rights or watchdog for the rights of the citizens of the country and resolves both internal and external disputes. The Constitution guarantees us fundamental rights which cannot be violated by any law. One of the fundamental rights is the right to equality under Article 14, but still LGBTQ people in India are facing various challenges in accessing their rights.

LGBTQ rights are fundamental human rights that ensure equal treatment and protection for lesbian, gay, bisexual, and transgender and queer persons. These rights cover various aspects of life, including legal recognition of relationships, protection from discrimination, access to health care, and the right to express one's gender identity or sexual orientation without fear of harassment or violence. This article highlights the role of the judiciary in promoting LGBTQ rights.

LGBTQ individuals had faced discrimination and vulnerability because of the discriminatory laws existed in the society. However, the judiciary always acts as their elder brother by protecting the rights of the LGBTQ community. The emergence of judicial activism provided a ray of hope for the LGBTQ+ community. Historical cases, such as Lawrence v. Texas and Navtej Singh Johar v. Union of India (2018) marked significant milestones by guaranteeing the rights of LGBTQ persons.

Judicial activism means the active role of the judiciary in protecting the rights of citizens. In India, the Supreme Court and the High Courts are vested with the power to examine the constitutionality of any law and if such a law is found to be inconsistent with the provision of the constitution, the court can declare the law unconstitutional. The practice of judicial activism first originated in the United States of America and the foundation of judicial activism in India was laid by Justice VR Krishna Iyer, Justice PN Bhagwati, Justice O Chinnappa Reddy and Justice DA Desai.

Judicial activism played a key role in providing equality to LGBTQ individuals. In the case of Navtej Singh Johar vs Union of India 2018. The Supreme Court struck down Section 377 of the IPC. It sees consensual sex between people of the same sex as an 'unnatural offence' which is against the order of nature. It was punishable by 10 years imprisonment.

By repealing the law, the judiciary plays an active role in protecting the rights of LGBTQ individuals. Courts' decisions about LGBTQ rights have a profound impact on social attitudes. While court decisions on discrimination based on sexual orientation or gender-based discrimination are not permissible by law, these decisions contribute to changing societal perceptions about the LGBTQ community. These decisions set precedent for future cases, for example landmark cases such as Obergefell V. Hodges, who legalized same-sex marriage in the United States, have set a precedent for recognizing LGBTQ rights in a variety of legal contexts.

The judiciary plays an important role in the recognition and legalization of same-sex marriage. In many countries, the issue of same-sex marriage has been controversial, with debates raging around legal, social, and religious considerations. When legislative bodies have been slow or unwilling to act to recognize the rights of LGBT individuals, the judiciary often becomes the forum where these rights are debated and ultimately determined.

Despite the crackdown on Section-377 of the IPC, LGBTQ people still face harassment, discrimination, and eviction. LGBTQ people are at greater risk of rejection by their families, bullying and harassment at school, and as a result, they may face emotional distress, homelessness, and support networks, and become isolated from their networks. Promoting LGBTQ rights in India requires a multipronged approach that addresses legal, social and cultural barriers.

This includes media campaigns, school and workplace workshops, community outreach, etc. Support and collaborate with LGBTQ organizations and activists working in the field to promote LGBTQ rights. Provide resources, money, and support to enhance their efforts and strengthen the movement. Support legal advocacy efforts to challenge discriminatory laws and policies through strategic litigation. This includes filing court petitions, providing legal aid to LGBTQ individuals facing discrimination, and supporting landmark cases setting a legal precedent for equality.

Advocate for political parties and leaders to include LGBTQ rights in their agendas and policies. urge legislators to introduce and support legislation that advances LGBTQ equality and protection; and encourage courts to support legislation that advances LGBTQ equality and protection. Support positive LGBTQ representation in film, television, literature, and other media. Support LGBTQ creators and storytellers to produce content that reflects the diversity of the community and promotes empathy and understanding. By implementing these strategies and fostering collaboration among various stakeholders, India can make great strides towards achieving equality and acceptance for the LGBTQ community.

Judicial activism has been a driving force in advancing LGBTQ rights, especially through landmark court cases challenging discriminatory laws and entrenched social attitudes. In countries such as India, judicial activism has played a significant role in promoting LGBTQ equality, dignity, and the elimination of discrimination; One of the most prominent examples of judicial activism in advancing LGBTQ rights is the case of Navtej Singh Johar vs Union of India. Union of India.

In this landmark judgment, the Supreme Court struck down Section 377 of the Indian Penal Code, which criminalised consensual same-sex relationships. The ruling not only downplayed homosexuality, but also affirmed LGBTQ constitutional rights to equality, privacy, and non-discrimination. Similarly, in the case of National Legal Services Authority (NALSA) Vs. Union of India and Others Vs. Union of India and Others, the Supreme Court of the Union recognized the rights of transgender persons and affirmed their right to self-identify their gender identity.

The judgment upheld the principle that gender identity is an integral part of an individual's personality and affirmed the right to live with dignity and respect. Judicial activism in advancing LGBTQ rights is characterized by a positive interpretation of constitutional principles such as equality, liberty, and non-discrimination. Courts have played an important role in expanding the scope of fundamental rights and encompassing the rights of LGBTQ persons, even in the face of resistance from conservative elements within society.

In addition, judicial activism has set important precedents for future cases involving LGBTQ rights and contributed to the development of jurisprudence. By clarifying the principles of equality and non-discrimination in the context of sexual orientation and gender identity, the courts have paved the way for further legal and policy changes to ensure the full realization of LGBTQ rights.

However, it is important to recognize that while judicial activism has helped advance LGBTQ rights, legal victories alone are not enough to bring about lasting social change. Implementation of the verdict will require a concerted effort by all stakeholders, including government agencies, civil society organizations and the wider community.

Finally, judicial activism has been a catalyst in advancing LGBTQ rights, challenging discriminatory laws and norms, and affirming the rights and dignity of LGBTQ individuals. However, the journey to full equality continues, and continued activism and advocacy is essential to ensure the realization of LGBTQ rights in India.

  • Vision IAS (LGBTQ+ Rights)
  • Legal Services India (Constitutionalism and LGBTQ Rights)
  • JSTOR (Assessing the Impact of Judicial Decisions on LGBTQ Rights)

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