The recognition of the rights of LGBTQ+ persons in India has been one of the most remarkable transformations in the country’s constitutional and social landscape. For decades, individuals belonging to sexual and gender minorities lived on the margins, denied equality, dignity, and autonomy. The struggle for recognition reached its turning point when the Supreme Court began to interpret the Constitution in a transformative manner, affirming that the fundamental rights guaranteed under Part III belong equally to LGBTQ+ citizens.
Historically, the biggest barrier to LGBTQ+ rights in India was Section 377 of the Indian Penal Code, a colonial-era provision criminalizing “carnal intercourse against the order of nature.” For years, this provision was used to stigmatize, harass, and exclude LGBTQ+ individuals, branding their intimate lives as criminal. In Naz Foundation v. Government of NCT of Delhi (2009), the Delhi High Court took the first step toward liberation by holding that consensual same-sex relations were protected by Articles 14, 15, and 21 of the Constitution. However, in Suresh Kumar Koushal v. Union of India (2013), the Supreme Court reinstated Section 377, stating that only Parliament could amend the law. This decision was widely criticized for ignoring constitutional morality and fundamental freedoms.
The breakthrough came in Navtej Singh Johar v. Union of India (2018), where a Constitution Bench of the Supreme Court unanimously struck down Section 377 insofar as it criminalized consensual homosexual relations between adults. The Court recognized that LGBTQ+ persons are entitled to the full range of fundamental rights—dignity, equality, privacy, and freedom of expression. Justice Dipak Misra emphasized that sexual orientation is an intrinsic aspect of identity, protected under Article 21. Justice D.Y. Chandrachud highlighted that constitutional morality must prevail over social morality, ensuring that individuals are not denied rights simply because of majority disapproval.
The right to equality under Article 14 has been central to the recognition of LGBTQ+ rights. By decriminalizing homosexuality, the Court affirmed that all persons, irrespective of orientation, deserve equal protection of the law. Article 15, which prohibits discrimination on grounds of sex, has been interpreted to include sexual orientation and gender identity. Similarly, Article 19 guarantees the freedom of expression, which protects the right of LGBTQ+ persons to express their identity without fear. Article 21, encompassing dignity, privacy, and autonomy, has become the constitutional foundation for LGBTQ+ rights, particularly after Justice K.S. Puttaswamy v. Union of India (2017), where privacy was recognized as a fundamental right.
Subsequent judgments have reinforced this constitutional protection. In National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court recognized transgender persons as a “third gender” and affirmed their right to equality, dignity, and reservation in education and employment. This judgment underscored that gender identity is integral to personal autonomy and cannot be dictated by external norms. In Navtej Johar, the Court further expanded on this by explicitly stating that LGBTQ+ persons must not face discrimination in any sphere of life.
Despite these landmark rulings, challenges remain. The recognition of fundamental rights has not yet translated into full equality in areas like marriage, adoption, inheritance, and healthcare. In 2023, the Supreme Court in Supriyo Chakraborty v. Union of India declined to recognize same-sex marriage, leaving it to Parliament to decide. While the Court acknowledged the rights of queer couples to cohabit and condemned discrimination, the absence of marital and family rights continues to leave LGBTQ+ persons in a position of legal vulnerability. Social stigma, workplace discrimination, and lack of political representation further limit the realization of their constitutional rights.
Nevertheless, the progressive jurisprudence of the last decade has established that LGBTQ+ persons are full and equal citizens under the Constitution. Their rights are not gifts of the State but inherent guarantees under Articles 14, 15, 19, and 21. The challenge now lies in ensuring that these rights are translated into legislative reforms and social acceptance, covering marriage, adoption, property rights, and protection from hate crimes.
In conclusion, the recognition of fundamental rights of LGBTQ+ persons in India reflects the triumph of constitutional morality over social prejudice. The judiciary has played a transformative role in affirming that dignity, equality, and liberty cannot be denied to individuals because of their sexual orientation or gender identity. The future course must ensure that this recognition extends beyond decriminalization to full legal equality, thereby fulfilling the Constitution’s promise of justice, liberty, equality, and fraternity for all citizens.
