Categories: Journal, JOURNAL


VOLUME:-9 ISSUE NO:- 9 ,MARCH 30, 2024

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com



Authored by:- Gaurangi Mehrotra

Co-author:- Shweta Singh



The rights of LGBT (lesbian, gay, bisexual, transgender, and queer) people have changed in India in recent years. Nonetheless, compared to those who do not belong to the LGBTQ community, LGBTQ residents continue to confront particular social and legal challenges. The people have a responsibility to accept the court’s decision with open arms, the government has a duty to make sure the verdict reaches the general public, and the court has a duty to issue just and reasonable orders. Though the Supreme Court of India in the Navtej Singh Johar vs Union of India ruling in 2018 took a step forward for LGBTQ+ rights by striking down a portion of Section 377 of the Indian Penal Code that made homosexuality a crime yet there hasn’t been much of an improvement in the LGBTQ community’s circumstances.

LGBTQ individuals did not receive any special treatment from the federal or state governments, nor did they receive social acceptability from the nation’s populace. The study examines the long-standing fight for basic rights by the LGBTQ community and the discrimination they encounter in a variety of contexts, with a focus on transgender individuals and judicial declarations. The paper finally examines the path ahead for the LGBT community and what additional social and legal reforms are required to ensure that LGBT people are treated equally and with complete acceptance in the traditional Indian culture. 


KEYWORDS: LGBTQ+, Literature Review, Issues Faced by LGBTQ+ people, Section 377 IPC 1860, The Transgender Persons (Protection of Rights) Bill, 2019, Landmark judgements , same sex Marriage in India 




The descriptive research is focused on secondary sources and involves the analysis of books, research papers, articles, and blogs. Verified e-data sources, including SCC online, Indian Kanoon, Manupatra e-database, and others, are the source of the case laws and reports. The study looks at a variety of problems that the LGBTQ group faces in social, legal, and personal contexts.
An examination of the LGBTQ community’s legal battle history and equality.
The effects of social interventions on communal life and the legal recognition of marriage.
A critical assessment of the 2019 Transgender People (Protection of Rights) Act
Analysis of judgements that have favoured the LGBTQ community.




 “Like the fair Hermia and Helena, let us pursue love fearlessly, regardless of the obstacles that stand in our path” a reference from Shakespeare’s plays “ A midsummer Night’s dream”. This phrase encapsulates the spirit of love, acceptance, and identity that the LGBTQ community celebrates by drawing from the rich tapestry of literature. In a same vein, individuals cannot be treated differently, subjected to discrimination, or denied their basic human rights just because of their sexual preferences, they even need love, identity and acceptance.

The fundamental tenet of human rights is the equality of all people. It follows that everyone is entitled to respect and that everyone ought to be treated equally. Anything that compromises its dignity is wrong since it goes against equality and encourages prejudice. The fundamental principles of the Indian Constitution’s preamble, which demand justice and equality of position for all people in all domains—social, economic, and political—are likewise broken by this kind of discrimination. This article examines the legal rights, significant rulings, and continuous struggles that the LGBTQ+ population in India faces in detail.


What is “LGBTQ+”

The phrase “LGBTQ+” refers to the following groups of individuals:


Lesbian: A lesbian is a woman who is drawn to other women on a sexual level.

Gay : A man who is attracted to another man sexually is considered Gay.

Bisexual :Someone who is attracted to people of both sexes sexually is said to be bisexual.

Transgender : People whose gender identity and expression diverge from those typically linked with their biological sex are referred to as transgender.

Queer: The term “queer” describes a group of people who identify as neither heterosexual nor cisgender (the reverse of transgender). The word “queer” itself refers to a community since its members typically use pronouns rather than only, He, She, etc.


The + in “LGBTQ+” denotes that additional categories, such as pansexual, asexual, intersex, etc., are included in the preceding list, which is not all-inclusive.




In India, the topic of homosexuality has long generated discussion. The literature on the historical aspects of homosexuality and the current state of same-sex relationships in India is reviewed in this section. The research is focused on the characteristics of homosexuality in India during the ancient, mediaeval, British colonial, and post-independence periods.

The Rig Veda, which was written around 1500 BC, mentions Thadani, one of the earliest cosmologies in the Rig Veda that is associated with the twin feminine deity Dyava. It symbolises the joining of two females who can be viewed as sisters, mothers, lovers, or other roles.

The idea of homosexuality is implied by the ancient writings’ depiction of Yoni as two points of light, which are thought to be twin females. Three genders are described in the ancient sexology treatise Kamasutra: pums prakriti, stri prakriti, and tritya prakriti, which are modern terms for man, woman, and third sex. Lesbians and homosexuals were the subcategories of the third sex. It demonstrates how attitudes towards gender equality and love were more liberal and nonconformist in the past.

In the mediaeval era, Urdu poets and Muslim kings’ courts were common places for girls to fall in love. In Tuzuk-i-Babri, it is said that Babur had a romantic relationship with a small kid in his court. In the courts of Pathans and Nawabs, homosexuality was considered the norm. The Chandela monarchs erected the renowned mediaeval sculpture known as Khajurao Temple, which features sensual depictions of men and women flashing their genitalia to one another. A similar scene with a woman having sex with a third person may be seen on the temple’s southern wall. A similar scene with a woman having sex with a third person may be seen on the temple’s southern wall. Furthermore, as reported in his diary Muraqqu-e-Delhi, Quli Khan, a resident of Hyderabad, had witnessed homosexual relationships and activities in Delhi society.

The practice of homosexuality began to decline with the arrival of British colonisation, and imperialist Britain’s influence over Indian sexuality manifested itself as dominance and suppression. As a result, the Indian Penal Code, 1860’s Section 377 was introduced, including concepts like “unnatural” and “order of nature.” According to this clause, having sex with any man, woman, or animal only requires penetration in order to engage in carnal intercourse against the natural order. Violators risk life in jail, a fine, or both.

Regarding some case laws, the post-independence scenarios addressed the phrase “against the natural order.” The court in Lohana Vasantlal Devchand vs. The State used a criteria to define the term “homosexual conduct” in opposition to the order of nature, which is specifically referenced in section 377 of the Indian Penal Code. The court in this case used the newly coined word “sexual perversity,” which is defined as abnormal behaviour carried out by the spouses for gratification. The State of Kerala vs. Kundumkara Govindan and Anr, Brother John Antony vs. The State , and Calvin Francis vs. the State of Orissa cases all follow the same legal process. Other reviews that appeared in books, articles, and reports said that the LGBTQ community’s voting rights cannot be addressed apart from those of other communities. Due to prejudice and gender disparity in the workplace, the exclusion of the LGBTQ population is probably going to result in minimal financial costs. The government is under pressure to enact laws that support LGBTQ individuals. The day will come when the LGBTQ community is accepted by society and their rights are viewed as equal to those of other citizens.




1-Despite the fact that we consider ourselves to be a forward-thinking and contemporary age, it is depressing to witness the horrors that members of the LGBTQ community endure in a variety of settings. Among the typical issues they deal with are:

2-LGBTQ children experience discrimination and a great deal of bullying in schools, colleges, and other settings, according to a 2018 UNESCO report. It frequently takes individuals years to heal from the indelible scars left by these acts of prejudice and bullying. (2018 UNESCO Report)

3-A bounty is often set for someone who declares themselves to be a member of the LGBTQ community or is discovered to be one. These honour killings have claimed the lives of numerous victims in recent times.


4-Women suffer the most from being part of the LGBTQ community because, when a woman comes out as a lesbian or bisexual, her family usually advises her to undergo legally sanctioned corrective rapes, which involve having sex with a man against her will in order to treat the “Disease of Homosexuality.”

5-LGBTQ individuals not only experience prejudice in schools and colleges, but this threat persists even after they graduate. They encounter discrimination when applying for jobs because no employer wants to hire someone who has a different sexual preference because that preference does not align with society and is frequently questioned by coworkers. They are thereby trapped in the poverty cycle and unable to obtain better-paying employment.

6-LGBTQ people are not only not accepted in rural areas; LGBTQ people are not accepted in urban areas either. In urban areas, families are more worried about their standing in society than they are about their children’s needs, and when they learn that their child is part of the LGBTQ community, they frequently throw them out of the house to protect their reputation.

7-LGBTQ individuals are frequently sent to prisons where, as “corrective therapy for homosexuality,” they are given psychiatric medications. They grow so dependent on these drugs that, even after escaping the hell of correctional facilities, they continue to turn to narcotics and other psychoactive substances for comfort, which feeds their addiction.


8-Individuals who identify as LGBTQ+ are frequently cut off from society, which causes them to experience despair.


9-Indian Penal Code, Section 377, 1860
An artificial construct of colonialism, Section 377 of the Indian Penal Code made unnatural sexual practices illegal “since its application as law in 1862.” Sexism is one of these behaviours and can result in legal      action.


10-According to  Section 377 of the Indian Penal Code, 1860, which addressed unnatural acts, anyone found guilty of engaging in sexual relations with a man, woman, or animal against the law faces a maximum 10-year sentence in harsh jail or life imprisonment.

11-In the years that have passed, Indian courts have interpreted “carnal inter-course against the order of nature,” which is not clearly defined, to encompass oral sex, anal intercourse, and occasionally other non-procreative sexual acts including mutual masturbation.

12- Since sodomy and homosexuality were viewed as synonymous, this offence was made cognizable and nonbailable. It was believed that a homosexual man is a “type of person” who exclusively engages in anal sex with his partner. However, there was insufficient thought given to the fantasies, emotional bonds, and other aspirations. Therefore, it was an attempt to criminalise sodomy de jure while criminalising and stigmatising homosexuality de facto.


Naz Foundation Govt. vs. NCT of Delhi

A few men were arrested by Lucknow police in July 2001 after they stormed a park on the grounds that they might be homosexuals. They were subsequently booked under section 377 IPC. Following their accusation of operating a prostitution racket, these individuals were not granted bail. In 2001, the Delhi High Court received a plea from the Naz Foundation, a non-governmental organisation that has been working on HIV/AIDS, sexual health education, and education since 1994. The appeal contested the constitutionality of Section 377 of the IPC.

The petitioner claimed that their fundamental rights to equality, freedom of expression, privacy and dignity, health, and life and liberty were all violated by Section 377 of the IPC.

The Delhi High Court ruled in 2009 that the two consenting adults were unjustified to be prohibited from having sex, even in private, by Section 377 of the IPC. As a result, it was a clear breach of their fundamental rights, which are guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution. Religious leaders denounced the ruling with equal fervour as sexual minorities around the country reacted to it with immediate and profound joy.


National legal services authority vs Union of India

Whether the hijra and transgender population needed to be recognised as a third gender for the reasons of public health, education, employment, reservations, and other welfare schemes was the question that the Honourable Supreme Court had to decide in this case.

In this historic decision, the Supreme Court granted hijras and transgender people the status of “third gender.” Previously, transgender individuals were compelled to identify as either male or female; but, following the verdict, they were free to openly declare their identity as Third Gender or transgender. The following basic human rights, which are guaranteed to the transgender community by the Judgement, can be summed up as follows:


The Supreme Court ruled that Articles 14, 15, 16, and 21 of the Indian Constitution were violated by not acknowledging their identities.
The Supreme Court also ordered the Indian government to grant reservations to members of the “Third Gender” on the basis of their social and economic backwardness. In accordance with the ruling, the third gender would be classified as one of the other backward classes (OBC), granting them the benefit of reservation in relation to government jobs and educational institutions. It also mandated that the government create appropriate policies for the transgender community in light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment.

The court also acknowledged that a disagreement between a person’s identity and gender at birth is not always indicative of a medical illness. So, the emphasis should be on “resolving distress over a mismatch” rather than on “treating the abnormality.” Put simply, it indicates that the court understood the distinction between the biological and gender aspects of sex. The court defined gender attributes as an individual’s self-image, or their deep emotional or psychological sense of sexual identity and character, which is not limited to the binary sense of male and female but can lie on a broad spectrum. Biological characteristics were defined as genital, secondary sexual features, chromosomes, etc.


Transgender people can now alter their gender without having a sex reassignment operation performed according to this ruling. They also possess a constitutional right to self-identification and registration as members of the third gender. Aside from this, a few state governments implemented modest housing and health measures to assist the transgender community. However, the Transgender Persons Bill, 2018’s passage dealt a serious blow to this ruling.


The Transgender Persons (Protection of Rights) Bill, 2019

The Transgender Persons (Protection of Rights) Bill, 2019 was passed with the intention of safeguarding the rights of the transgender community by outlawing discrimination against them in the workplace, in the classroom, in the healthcare system, and when gaining access to public or private facilities.

However, the bill dehumanises their identity and body while increasing their exposure to institutional oppression in the name of community empowerment. Among the Bill’s shortcomings are:

The bill denies transgender individuals the freedom to choose their sexual orientation. According to the measure, a district magistrate’s certification of sex reassignment surgery is a prerequisite for changing one’s gender identity on official papers. Transgender individuals are not only at risk of harassment from authorities, but their autonomy and privacy are also compromised.

The Transgender Persons (Protection of Rights) Bill of 2019 stipulates that the maximum sentence for sexual abuse of transgender persons is two years in prison. In contrast, similar offences against women carry a severe seven-year prison sentence under the Indian Penal Code.
There are no clauses about offering scholarships, making reservations, modifying the curriculum to include LGBT+ content, or guaranteeing safe, welcoming environments for the trans community in schools and workplaces.


Hence, rather than releasing transgender people from a pit of despair, the act’s contradictory provisions place greater limitations on them.




K.S. Puttaswamy vs. Union of India

The Naz Foundation contended before the Supreme Court in the Suresh Kumar Koushal V. Naz Foundation ruling that Section 377 of the IPC infringed the right to privacy, but this argument was not given much weight because the right to privacy was not a settled law. Subsequently, in 2017, the Puttaswamy Judgement essentially concentrated solely on the right to privacy, stating that it is an essential component of the right to life under article 21 and, as such, is a fundamental right.

But because of Justice Chandrachud’s opinion in the Puttaswamy judgement under the heading “discordant notes,” which rejected the court’s rhetoric in the Suresh Kumar Koushal case and noted that sexual orientation also falls within the broad definition of right to privacy, this case is also closely related to the rights of the LGBT community. Furthermore, a third party may file a lawsuit against the partners under Section 377 if they willingly committed sodomy, violating their constitutionally guaranteed rights to privacy and personal liberty. The Puttaswamy decision notes also noted the criticism levelled at the minimis hypothesis principle applied in the Suresh Kumar Koushal judgement. They stated that the tiny number of LGBT+ people cannot be used as justification for denying them access to basic fundamental rights, and that such a curtailment of rights cannot be justified even in cases where a small number of people experience hostile treatment as opposed to a large number.


Suresh Kumar Koushal vs Naz Foundation

As the LGBTQ+ community was beginning to breathe a sigh of relief following eight years of a protracted legal battle, a number of individuals and faith-based organisations categorically rejected the Delhi High Court’s 2009 ruling in Naz Foundation Govt. V. NCT Of Delhi, decrying India’s long history steeped in morality and custom. In an attempt to have the constitutionality of Section 377 reexamined, they filed an appeal with the Indian Supreme Court.


Judges GS Singhvi and SJ Mukhopadhaya’s division bench in the Hon’ble Supreme Court reversed the Delhi High Court’s decision on December 11, 2013, and homosexuality was once again made illegal. The bench additionally noted that Section 377 of the IPC did not suffer from the vice of unconstitutionality and is therefore fully constitutional, holding that LGBT+ people were a “minuscule minority” and did not merit constitutional protection. The Supreme Court disregarded the fundamental rights outlined in Articles 14, 15, 19, and 21 out of passionate opposition to the tiny minority that is the LGBT community. so avoiding the core of the Indian Constitution.


The bright side of this ruling was that it sparked a fresh surge of activism in India rather than ending the LGBT movement. The Supreme Court’s discriminatory ruling, which erased homosexuals’ fundamental human rights, drew harsh criticism from all quarters. As a result, there was a boom in public discussion regarding LGBT rights in India, which eventually led to a large-scale movement.


Navtej Singh Johar vs union of India

Following the Supreme Court’s overturning of the Delhi High Court’s 2013 ruling in the Suresh Kumar Koushal case, homosexuals were once again deemed criminals for engaging in consenting sexual practices. Following this, there were more and more protests in India for LGBT rights as prominent figures like dancer Navtej Singh Johar, Ritu Dalmia, and hotelier Keshav Suri filed a petition with the Supreme Court questioning the constitutionality of Section 377 of the IPC.

The Supreme Court heard multiple petitions regarding the matter and decided to forward it to a more senior bench. The Government went on to say that it will not get involved in the case and will let the Supreme Court make its own wise decision. The petitioners claimed that section 377 infringed upon their rights to equality, human dignity, privacy, and freedom of expression as guaranteed by the constitution.

On September 6, 2018, the five-judge panel ultimately rendered a decision and unanimously decided that

Insofar as consensual adult sexual relations are concerned, Section 377(1) is illegal because it violates the fundamental rights to intimacy, autonomy, and identity. Consequently, homosexuality  activity was decriminalizeed.
Because of its vagueness, Section 377 fails to distinguish between what is “natural” and what is “unnatural.”
Additionally, it restricts the ability to express one’s sexual identity, which is a fundamental freedom guaranteed by Article 19 of the Indian Constitution.
A person’s sexual orientation is an integral component of who they are, and to invalidate it is to deny someone their right to life.

It cannot be a legitimate argument to deny people basic rights merely because they make up a small percentage of the population.
The Koushal ruling was harshly condemned by the court, which described it as illogical, capricious, and obviously unconstitutional.
Additionally, it was emphasised that discrimination based on sexual orientation is unlawful because scientific and biological evidence demonstrate that sexual orientation is a natural phenomenon.
The government was also ordered by the Supreme Court to eradicate the stigma attached to LGBT individuals and raise public knowledge of LGBT rights. The judges went into more detail on the problems with transgender people, mental health, privacy, dignity, and the freedom to self-determination.


Arun Kumar vs. Inspector general of Registration

In a case from the Madras High Court, transwomen are included in the definition of brides under the Hindu Marriage Act of 1955. The Hindu Marriage Act of 1955 defines marriage as involving only males and women. This ruling broadened the definition of women to include transgender persons who identify as women and who wish to marry. It adopts the self-identification clause from the NALSA ruling, which states that an individual is free to identify as any gender identity without requiring confirmation from the government or another third party.

The Court expanded on this clause by stating that a person has the fundamental right to identify as a transwoman. 




In a long-awaited decision, the Supreme Court dismissed applications to legalise same-sex unions and looked more closely at the Special Marriage Act of 1954’s provisions, which are closely related to and have a convergence with homosexuality.

In a 3:2 verdict, the five-judge Supreme Court of India panel, led by Chief Justice DY Chandrachud, decided against legalising same-sex unions. Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and PS Narasimha were the other members of the bench.The legislature should be responsible for drafting laws pertaining to same-sex marriages, according to the court, which declined to invalidate portions of the Special Marriage Act that would have allowed for such unions. The LGBTQ community did, however, receive several other rights from the court, such as immunity from discrimination, the freedom to select a partner, the right to private association, and the ability to adopt children.




The Special Marriage Act (SMA) has not had any of its provisions overturned or amended by the SC. The Act, which is intended for marriages between castes and religions, was to be amended to allow same-sex unions.

The LGBTQ community’s main contention was that discrimination based on ascriptive characteristics, specifically sexual orientation and gender identity, to gain entry into the institution of marriage violated the constitutional guarantees of equality (Article 14), non-discrimination (Article 15(1)), freedom of expression (Article 19(1)(a)), and privacy and dignity (Article 21). They wanted the same rights to marriage as heterosexual couples. The Centre had informed the SC that any constitutional ruling on this matter made by the court might not be a “correct course of action” since the court would not be able to anticipate, visualise, understand, and address its consequences. 

In his ruling, the CJI stated that the court is only able to interpret the law—not create it. He stated that the court would be going into legislative territory if it struck down or added language to Section 4 of the Special Marriage Act granting marriage privileges to members of the LGBTQ community. The SC further declared that the LGBTQ community cannot assert a right to marriage because it is not a basic right.

As a result, the Supreme Court bench declined to recognise same-sex unions legally and instead directed Parliament to draft the necessary legislation. The CJI stated that Parliament should determine if the Special Marriage Act’s framework needs to be changed.



The SC granted the LGBTQ community various other rights even though it declined to legalise same-sex unions. The CJI stated that LGBTQ community members have the right to choose a partner and the right to intimate association, even in the absence of a legislatively granted right to marry. The state is required to acknowledge these rights in order to guarantee that these couples are able to exercise their right to association without interference. It has given orders to the Union Territories, states, and the federal government to uphold those rights.


1-2The government has been instructed by the Supreme Court to guarantee that the LGBTQ community is not subjected to discrimination on the grounds of their sexual orientation. It has instructed the government to stop discriminating in the provision of goods and services and to raise public awareness of LGBT rights. Additionally, the SC stated that homosexuality and queerness are neither urban concepts nor exclusive to the upper classes of society. Regardless of one’s caste, position, or financial situation, one can be queer.


2-Preserving the community: The Supreme Court has instructed the government to establish a hotline, safe places for LGBTQ couples, and make sure that intersex youngsters are not coerced into having surgery. Nobody will ever be made to take hormone therapy against their will.

3-4Rights regarding adoption: The Supreme Court ruled that the Central Adoption Resources Authority’s (CARA) circular, which forbids LGBTQ couples from adopting children, is discriminatory and, as such, unconstitutional. The bench disagreed on a number of issues, most notably whether adoption laws applied to gay couples. 

4-Rights against police harassment: The Supreme Court has instructed the government to make sure that LGBTQ couples are not harassed by being called to the police station or having their homes visited just to be questioned about their sexual orientation or gender identity. If such individuals do not want to return, police cannot make them go back to their original families. When an LGBTQ person files a police complaint, claiming that their family is restricting their freedom of movement, the police are required to, after confirming the validity of the allegation, make sure that their freedom is not restricted. Upon confirming the authenticity of the report, the police will provide appropriate protection when a complaint of abuse from a family is made on behalf of an LGBTQ individual or someone in a similar relationship. In accordance with the ruling in Lalita Kumari v. Government of UP, police must first conduct a preliminary investigation to make sure the complaint reveals a crime that can be prosecuted before filing a formal complaint against an LGBTQ couple or any of the individuals involved in such a relationship. 

5-The panel of experts: The CJI granted Solicitor General Tushar Mehta’s request on behalf of the Centre to form an expert panel led by the Cabinet Secretary to examine extending a range of rights and advantages to LGBTQ couples that are accorded to heterosexual couples, with the exception of marriage. The committee will take into account all other rights, including those pertaining to banking, government products and services, etc.



The conditions and predicament of the LGBTQ community in obtaining their fundamental rights—such as the freedom from exploitation, the right to equality, and the right to equal opportunities in the workplace and for employment—are discussed in the article.
In practically every aspect of life, the LGBTQ community continues to face harassment, violence, and bullying in spite of multiple historic rulings in their favour. If people can’t marry the person of their choice even if homosexuality is decriminalised, what good would that serve? Despite intense work, the Transgender Persons (Protection of Rights) Bill was enacted in 2019, although there are still a number of issues and disagreements with it.

The LGBTQ community encounters violence, discrimination, and gender inequity not only in India but in many other nations across the globe. Prior to the 20th century, homosexuality was viewed as a horrible sin or crime and was never acknowledged by the public or the state. The UNHCR published its first report on human rights and the LGBTQ community in 2011. It highlights the community’s rights and provisions, such as the prohibition of homosexuality, the protection of social violence and bullying victims, and many more. Notwithstanding these initiatives, raising public awareness of the rights and protections related to homosexuality presents numerous challenges for the UN’s official institutions. 

However, despite all of the advancements, LGBT people continue to face obstacles in obtaining social acceptance. A Supreme Court ruling can only establish a resolution; society must ensure that LGBT people are treated equally and with acceptance. Merely permitting sexual acts between people of the same sex will not put them in the same danger as other citizens because the community is still battling for rights against discrimination, same-sex marriage’s future, and the legal sanctity of same-sex adoptions. Therefore, there is still a long way to go before India can be considered an inclusive nation in the genuine sense of the word.


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