Introduction
Human rights are universal and indivisible. They are inherent to every individual regardless of nationality, religion, caste, gender, or sexual orientation. The recognition that LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer, and Asexual) rights are a part of human rights has emerged strongly in recent decades across the world. In India, this journey has been long and complex, moving from invisibility and criminalisation towards gradual recognition and protection. The Indian legal framework has historically ignored or marginalised LGBTQ+ persons. Still, recent judicial and legislative developments have shifted the discourse, framing their rights within the broader human rights paradigm guaranteed by the Constitution. This article examines the legal developments in India concerning LGBTQ+ rights, highlighting how they are increasingly being recognised as human rights rather than privileges granted by the state.
Constitutional Foundations of LGBTQ+ Rights
The Constitution of India, adopted in 1950, enshrines equality, liberty, and dignity as its cornerstone values. Articles 14, 15, 19, and 21 are particularly relevant to LGBTQ+ persons:
- Article 14 guarantees equality before the law and equal protection of laws.
- Article 15 prohibits discrimination on grounds of sex; the Supreme Court has interpreted “sex” to include sexual orientation and gender identity.
- Article 19(1)(a) protects freedom of expression, which includes expressing one’s identity.
- Article 21 ensures the right to life and personal liberty, encompassing privacy, dignity, and autonomy.
These provisions collectively form the constitutional bedrock for LGBTQ+ rights, even though the framers of the Constitution did not specifically address sexual minorities. The judiciary has used these articles to interpret and expand rights in line with evolving notions of justice.
The Shadow of Section 377
For much of post-Independence India, Section 377 of the Indian Penal Code, a colonial-era law, criminalised “carnal intercourse against the order of nature.” This provision was used to harass, stigmatise, and criminalise consensual same-sex relations. It symbolised the legal invisibility of LGBTQ+ persons. The first major challenge to Section 377 came in Naz Foundation v. Government of NCT of Delhi (2009), where the Delhi High Court read down the provision, decriminalising consensual same-sex relations between adults. The judgment linked sexual orientation to dignity, privacy, and health under Articles 14, 15, and 21 of the Constitution. However, in Suresh Kumar Koushal v. Naz Foundation (2013), the Supreme Court reversed the decision, reinstating the criminalisation. This was a major setback, but it triggered public debate and activism on LGBTQ+ rights.
The Turning Point – Navtej Singh Johar v. Union of India (2018)
The real breakthrough came with the landmark judgment in Navtej Singh Johar v. Union of India (2018). A five-judge bench of the Supreme Court unanimously struck down Section 377 to the extent it criminalised consensual sexual acts between adults.
The Court held that sexual orientation is an essential attribute of privacy, dignity, and autonomy protected under Article 21. It also reaffirmed that equality under Article 14 and non-discrimination under Article 15 extend to sexual minorities. Importantly, the judgment recognised that the LGBTQ+ community had suffered “decades of discrimination” and needed constitutional protection. This decision not only decriminalised same-sex intimacy but also repositioned LGBTQ+ rights as intrinsic human rights.
Recognition of Transgender Rights
Parallel to the fight against Section 377, India also witnessed progress on transgender rights. In National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court recognised transgender persons as a “third gender” and affirmed their right to self-identify their gender. The judgment drew heavily on constitutional principles of equality and dignity, directing the government to provide reservations, healthcare, and welfare measures to the transgender community. Following NALSA, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019. This law prohibits discrimination against transgender persons in education, employment, healthcare, and public spaces. Although criticised for its procedural requirements for gender identity certificates, the Act represents a legislative acknowledgment of transgender rights as human rights.
Marriage, Family, and the Continuing Struggle
While decriminalisation and recognition of gender identity have been landmark achievements, the next frontier of LGBTQ+ rights in India involves marriage, family, and social security benefits. Same-sex couples currently have no legal right to marry, adopt jointly, or inherit property as spouses. In Supriyo @ Supriya Chakraborty v. Union of India (2023), the Supreme Court refused to legalise same-sex marriage, holding that marriage equality is a matter for Parliament to decide. However, the Court strongly affirmed the constitutional rights of LGBTQ+ persons to live with dignity, form relationships, and be free from discrimination. It also directed governments to prevent harassment of same-sex couples and ensure non-discriminatory access to services. This judgment illustrates the unfinished nature of LGBTQ+ rights in India. Decriminalisation is a starting point, but full equality—including marriage, adoption, and social security—is still pending.
LGBTQ+ Rights as Human Rights
The shift from criminalisation to recognition is significant because it reframes LGBTQ+ issues within the human rights discourse. This framing is supported by international human rights law, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which India has ratified. These instruments uphold rights to equality, privacy, and freedom from discrimination—rights applicable to all, regardless of sexual orientation or gender identity. Indian courts have increasingly cited international human rights principles to support LGBTQ+ rights. For example, the Navtej Singh Johar judgment referred to global developments in decriminalising homosexuality and protecting sexual minorities. By doing so, Indian jurisprudence aligns with a universal understanding that LGBTQ+ rights are human rights, not special privileges.
Challenges Ahead
Despite legal progress, LGBTQ+ persons in India continue to face social stigma, discrimination, and violence. Workplace bias, family rejection, lack of healthcare access, and harassment by authorities remain widespread. The legal system, while evolving, has yet to address issues such as:
- Legal recognition of same-sex marriage and civil unions.
- Joint adoption rights for same-sex couples.
- Anti-discrimination laws with clear remedies.
- Implementation of welfare measures for transgender persons.
- Sensitisation of police, judiciary, and healthcare workers.
Addressing these challenges requires not only legislative action but also social change, education, and advocacy to dismantle prejudices and normalise diversity.
Conclusion
India’s journey on LGBTQ+ rights reflects a broader struggle between tradition, morality, and constitutional values of equality and dignity. From being criminalised under a colonial law to receiving constitutional protection from the highest court, LGBTQ+ persons have moved closer to realising their human rights. Landmark judgments such as Navtej Singh Johar (2018) and NALSA (2014) have provided a constitutional foundation for equality, privacy, and self-identity. Yet, the road ahead remains long. Recognition of marriage, family rights, and anti-discrimination measures is essential to translate constitutional promises into lived realities. As Indian society becomes more aware of diversity, the legal system must continue to uphold the principle that LGBTQ+ rights are not “special” rights—they are simply human rights, guaranteed to every individual by the Constitution.
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