- LGBT rights fight against two hundred years previous British era law
that criminalised homosexual intercourse which is against the order of
nature under the code
- Under section 377 of the Indian Penal Code, 1860 is classified as an
- In 1977 first book published named "The world of homosexuality" based on
their full and complete acceptance not tolerance and sympathy needs.
- In 1981 the first all India hijra conference was held in Agra, attended
by fifty thousand members across the country.
- In 1994 hijras were legally granted voting rights as a third gender. And
the same year also the first petition challenging section 377 by AIDS
Bhedbhav Andolan was dismissed that time.
- In 1999 Calcutta was host to the first pride march to ever be organized
in South Asia.
- After that, the Naz Foundation filed a PIL (Public Interest Litigation)
in Delhi High Court for justice against these laws which damage their pride,
respect, community, rights and freedom in India.
Laws and Provisions:There are certain provisions under section 377 of the Indian Penal Code,
1860 since the British ruling period:
- Any sexual acts that is against the order of nature are criminalized.
- The sexual relation against the order of nature for example between man
to man, between woman to woman or between human being to animal.
- Offence punishable for life imprisonment which may extend to ten years
with or without penalty.
- The rights are already mentioned as under six fundamental rights of our
Indian Constitution to safeguard each and every individual who is the
citizen of India under various Articles;
- Article 14 states concerning right to equality and equal protection to
all citizens including men, women and transgender,
- Article 15 of the Indian Constitution states concerning protection
against the discrimination on the grounds religion, race, caste, sex or
birth place. It clearly means that gender based discrimination is
unreasonable no one can discriminated on the basis of sexual orientation,
- Article 19(1)(a) of the Indian Constitution concerning that all citizens
of India have the right to freedom of speech and expression. Defend their
rights to express their gender identity,
- Article 21 of the Indian Constitution concerning protection of life and
personal liberty. This right protects gender privacy, identity and
What is LGBT?
LGBT is a short form of the english term in which the first letter "L" stands
for Lesbian means "a woman who is sexually attracted to other women", the second
letter "G" stands for Gay means "a man who is sexually attracted to other man",
the third letter "B" standd for Bisexual means "a person who has both male and
female organs or is sexually attracted to both men and women", and the forth
letter "T" stands for Trangender means " a person whose gender identity is
different from the gender they were thought to be at birth".
Current existence of Section 377 of IPC and their Impact in India;
- After 150 years this section no longer exists without any reasonable
grounds. No one can punish people who belong to LGBT community under section
377 of IPC.
- Social impact: they live with dignity, respect, freedom as normal as
like other gender lives in a society.
- Educational impact: they can take higher education, schooling and jobs
as normal as that.
- Personal impact: they are free to choose their partners too and live in
a peaceful environment.
- Global impact: they can also take part to serve the nation and their
contributions towards the nation helpful for developing countries.
- This restricted free life encourages their potential to grow, learn and
apply to achieve their dreams and desired goals.
Navtej Singh Johar v/s Union of India (6th September 2018):
- The five judges bench of the Supreme Court of India delivered a
historical verdict on sexual orientation in which the homosexuality
partially de-criminalised as under section 377 of IPC, 1860,
- With the support of Article 14 of the Indian Constitution consensual
homosexual sex between adults was not a valid Intelligible Diffrentia means
is not against the order of nature or not a Rationale Nexus means which is
based on subjective test like morality ect., which is not clearly
- With support of Article 15 the approach of Delhi High Court at the time
Naz Foundation case is that sex includes biological sex with sexual
orientation is actually true which reflects improved understanding.
- With the support of Article 19 human sexuality can not be defined
narrowly. So, discrimination against LGBT is completely unconstitutional. It
gives right to express sexual orientation freely.
- With the support of Article 21 right to life and liberty include
privacy, dignity and autonomy. It can be restricted only on reasonable
- But there is something which is still remains that in case of force
relating to sex with minors, non-consensual sexual acts, and bestiality is
also a criminalized offense.
- Apology to the members of LGBT community and their families, for the
delay in providing redress for the dishonor and avoidance that they have
suffered through the centuries.
K.S. Puttaswamy Vs. Union of India (2017):
- The nine judges bench of the Supreme Court of India is responsible for
rectifying the judgment given in the case of Suresh Kumar Koushal vs Naz
- Sexual orientation is an essential attribute of privacy which is
protected by various Articles of Indian Constitution.
- Equality in sexuality of each individual be protected at an even
- The minuscule population of LGBT cannot be the ground to deprive them of
the basic fundamental rights,
- And such limitations of the fundamental right cannot be held acceptable
even when a few, as opposed to a large number of people, are subjected to
National Legal Services Authority Vs. Union of India (2014);
- The court held that the non-recognition of their identities was in
violation of Article 14,15,16 and 21 of the Constitution of India.
- The Supreme Court of India redirected the Government of India to treat
the members of LGBT community as a "Third Gender" as an economically and
socially backward class.
- It was also specified that the government should make proper policies
for the LGBT community in the light of Articles 15(2) and 16(4) to protect
equal opportunity in education and employment As per the judgement.
- The third gender would be placed as other backward classes (OBC) to
offer them the benefit of reservation in government jobs and educational
- The Court also took cognizance that a difference between one's birth
gender and identity is not essentially a pathological condition.
Suresh Kumar Koushal Vs. Naz Foundation (2013);
- This case mainly based on two arguments first homosexual act is an
criminal offense only Parliament have only the power to decriminalised it.
- Second thing is that the right to privacy cannot cover the homosexual
- The Supreme Court of India step backward the judgment of the Delhi High
Court and re-criminalised homosexuality.
- LGBT persons constituted a 'less minority' and therefore did not deserve
constitutional protection and more determined that Section 377 of IPC did
not suffer from the vice of unconstitutionality.
Naz Foundation Government Vs. NCT of Delhi (2009):
- The High Court of Delhi held that Section 377 of IPC, 1860 arguments
supported decriminalisation, not legalization, and imposed an unreasonable
restriction over two adults engaging by mutual consent intercourse in
- And also stated that a part of section 377 of IPC which criminalized the
homosexual act need to declare unconstitutional.
- Whether it violates the basic fundamental rights enshrined under
Articles 14,15,19 and 21 of the Indian Constitution.
- According to Article 21 of the Indian Constitution nobody can enjoy
their life without dignity and privacy.
- And according to Article 15 of the Indian Constitution discrimination
without any reason ( homosexuality treated as a class) is restricted against
their sexual orientation.
- The first time Court de-criminalised the homosexuality in India.
Apart from everything, why are LGBT persons facing a lot of problems that's only
because of their gender identity like discrimination and physical and mental
harassment not only at the workplace but also extended to the higher education,
schooling, and vocational trainings.
People who belong to LGBT community are also human beings like others so they do
not need to justify themselves because of their gender attractions. On the other
hand the people for their natural sexual attractions can't be treated as a
criminal offence. If two people want to happily live together with their
consent, and it is also medically proven to be not a disease, it is all about
natural things which are still out of human control. Hence, this type of act
can't be criminalized.
The rights are given in our constitution equal for each one no matter they are
man, women, and transgender they all are not only having the equal rights but
also have protection against the discrimination on the basis of sex is
prohibited as under Art. 14, 15, 19(1)(a) and 21 of the Indian Constitution.
"My life, my choice, my partner with consent",slogan state about that they also
have right to live with pride so, meanwhile everyone has a natural rights as a
human being to live with the dignity in our society whether they are men, women
or transgender without any restrictions.
Written By: Vineeta Narayan
- Navtej Singh Johar Vs. Union of India AIR 2018 SC 4321; W. P. (Crl.) No.
76 of 2016; D. No. 14961/2016.
- K.S. Puttaswamy Vs. Union of India W. P. (Civil) No. 494 of 2012; (2017)
10 SCC 1; AIR 2017 SC 4161.
- National Legal Services Authority Vs. Union of India W. P. (Civil) No.
400 of 2012.
- Suresh Kumar Koushal Vs. Naz Foundation Civil Appeal No. 10972 OF 2013.
- Naz Foundation Government Vs. NCT of Delhi 160 Delhi Law Times 277; W.
P. (Civil) No.7455/2001.