India adopted a parallel system of government, similar to many other nations, before gaining its independence. In this system, powers are divided among the legislature, the executive, and the judiciary. The judiciary serves as the guardian of the country’s fundamental rights, the executive enforces them, and the legislature is the primary body responsible for enacting laws to resolve both internal and external disputes. Key rights are safeguarded by the Constitution, which prohibits any law from violating them. Article 14 guarantees the right to equality, yet LGBTQ individuals in India still encounter several obstacles in achieving these rights.
Transgender rights are essential human rights that ensure equal treatment and safety for lesbian, gay, bisexual, and transgender individuals. These rights encompass various aspects of life, including constitutional recognition of relationships, protection from discrimination, access to healthcare, and the right to express one’s gender identity or sexual orientation without fear of harassment or violence. The judiciary plays a significant role in advancing LGBTQ rights, as evidenced by several landmark cases.
Gay individuals have long faced discrimination and vulnerability due to oppressive laws. However, the judiciary has often stood up for LGBTQ rights like a protective older sibling. The evolution of judicial activism has provided a glimmer of hope for the LGBTQ+ community. Significant milestones have been achieved by securing the rights of LGBTQ individuals in landmark cases such as Lawrence v. Texas and Navtej Singh Johar v. Union of India (2018).
Judicial activism has been instrumental in ensuring fairness for LGBTQ individuals. In the Navtej Singh Johar v. Union of India case (2018), Section 377 of the IPC was struck down by the Supreme Court. This section criminalized sexual intercourse between individuals of the same sex, labeling it as an “unnatural offense” punishable by up to ten years in prison.
By striking down such laws, the court actively upholds the rights of LGBTQ individuals. The decisions made by authorities regarding LGBTQ rights have a significant impact on societal perceptions. Although court judgments based on gender- or sexual orientation-based discrimination are prohibited by law, they play a crucial role in shaping public opinion about the LGBTQ community. These judgments set precedents for future cases, such as landmark decisions like Obergefell v. Hodges, which legalized same-sex marriage in the United States. They also serve as a basis for recognizing LGBTQ rights in various constitutional contexts.
The judiciary plays a vital role in recognizing and legalizing same-sex unions. In many countries, the issue of same-sex marriage has sparked debates around legal, social, and religious considerations. The judiciary often serves as a forum for debate and decision-making when legislative bodies are slow or unwilling to recognize the rights of gay individuals.
Despite the repeal of Section 377 of the IPC, LGBTQ individuals still face abuse, discrimination, and ostracism. They are at greater risk of rejection by their families, harassment and violence at school, and may experience emotional distress, poverty, and social isolation. A multifaceted approach addressing legal, social, and cultural barriers is needed to promote LGBTQ rights in India.
This includes media campaigns, workshops in schools and workplaces, community outreach programs, etc. Supporting and collaborating with LGBTQ activists and organizations is essential to advancing LGBTQ rights. Providing resources, funding, and assistance to bolster their efforts and strengthen the movement is crucial. Supporting legal actions to challenge discriminatory laws and regulations through strategic litigation is also important. This involves filing court petitions, providing legal aid to LGBTQ individuals facing discrimination, and supporting landmark cases that establish a legal precedent for equality.
Advocating for political parties and leaders to include LGBTQ rights in their policies and agendas is another crucial step. Urging lawmakers to enact laws that promote LGBTQ equality and protection, and encouraging judges to do the same, is vital. Supporting positive LGBTQ representation in media such as film, television, literature, etc., is essential. Supporting LGBTQ writers and storytellers in creating content that celebrates the diversity of the community and fosters empathy and understanding is also important. By implementing these strategies and fostering collaboration among various stakeholders, India can make significant strides toward achieving equality and acceptance for the LGBTQ community.
In recent court cases challenging discriminatory laws and entrenched social attitudes, judicial activism has been a driving force in advancing LGBTQ rights. Judicial activism has had a significant impact on advancing LGBTQ equality, dignity, and the eradication of discrimination in countries like India. In landmark judgments such as Navtej Singh Johar v. Union of India, the Supreme Court struck down Section 377 of the Indian Penal Code, decriminalizing consensual same-sex relationships. The ruling not only decriminalized homosexuality but also affirmed LGBTQ individuals’ constitutional rights to equality, privacy, and non-discrimination. Similarly, in National Legal Services Authority (NALSA) v. Union of India and Others, the Supreme Court recognized the rights of transgender people and affirmed their right to self-identify their gender identity.
These decisions upheld the principle that gender identity is an integral part of an individual’s personality and affirmed their right to live with dignity and respect. Judicial activism in advancing LGBTQ rights is characterized by a progressive interpretation of constitutional principles such as equality, liberty, and non-discrimination. Even in the face of opposition from conservative elements of society, courts have played
a significant role in expanding the scope of fundamental rights.
Moreover, judicial activism has established precedents for future LGBTQ rights cases and contributed to the evolution 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 legal victories are crucial, they alone are not sufficient to bring about lasting social change. Implementing court decisions will require concerted efforts from all stakeholders, including government agencies, civil society organizations, and the broader community.
In conclusion, 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 toward full equality continues, and sustained activism and advocacy are necessary to ensure the advancement of LGBTQ rights in India.
