Day 18 – Q 5. Examine the role played by the judiciary in protecting and promoting the rights of the LGBT community.
5. Examine the role played by the judiciary in protecting and promoting the rights of the LGBT community.
एलजीबीटी समुदाय के अधिकारों की सुरक्षा और प्रसार में न्यायपालिका द्वारा निभाई गई भूमिका की जांच करें।
Approach
- Key words in this question are, “Judiciary”, “Rights” and “Examine”.
- In Introduction, either define LGBT or start with the recent Supreme Court judgment. Write in short. In body of the answer, examine the various courts’ judgments regarding LGBT. Give it proper sequence. You can write earlier negative judgments, which were against LGBT, and then later progressive judgments which are in favor of LGBT rights.
- Keep in mind that “judiciary” includes all courts, not only Supreme Court. You can conclude answer with some suggestions.
Introduction
LGBT Community is one of the most prosecuted and discriminated minorities of the world. Though historically discriminated in India too, recently various courts gave progressive judgments upholding the rights of LGBT community.
Body
Right to life: Sexual identity
- In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
- In 2013, the Supreme Court overturned the Delhi HC’s decision, after finding it “legally unsustainable”.
- The Supreme Court, in a landmark judgment in August 2017, held Right to Privacy as a fundamental right.
- SC also observed that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
- Going further, in September 2018, the Supreme Court of India decriminalised homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional.
- The Court ruled that individual autonomy, intimacy, and identity are protected fundamental rights.
- The judgment also included an inbuilt safeguard to ensure that it cannot be revoked again under the “Doctrine of Progressive Realisation of Rights”.
- This was the journey of Delhi HC and SC in one aspect of LGBT community that is their sexuality.
- There are issues related their right to education, livelihood and right against discrimination.
Other rights
- Various courts throughout India played an active role in upholding rights of LGBT community. Some of them are as follows.
- In 2011, a Haryana court granted legal recognition to a same-sex marriage, involving two women. Similarly, Kerala HC also supported same sex marriage.
- Similarly, The Supreme Court has ruled that discrimination on the basis of sexual orientation is prohibited by the Indian Constitution.
- In 2014 (NALSA vs Union of India), the Supreme Court of India declared transgender people a socially and economically backward class entitled to reservations in education and jobs, and also directed union and state governments to frame welfare schemes for them.
- The Supreme Court ruled that transgender people have a fundamental constitutional right to change their gender without any sort of surgery, and called on the Government to ensure equal treatment for transgender people.
- In light of the ruling, government documents, such as voter ID cards, passports and bank forms, have started providing a third gender option alongside male (M) and female (F), usually designated “other” (O), “third gender” (TG) or “transgender” (T).
- In case of public employment, Madras High Court in 2013 gave permission to write the TNPSC Group II exam to a transgender as a female candidate.
- Now, LGBT community themselves are being represented in judiciary. Two transgender people were appointed by the Kolhapur District Legal Services Authority (KDLSA) in Maharashtra as panel members for the local Lok Adalat. We also find similar examples from Assam Lok Adalats also.
Conclusion
- Though there are many judgments to mention the role of judiciary in upholding the rights of LGBT community, there are challenges to implement these judgments in letter and spirit.
- Supreme Court directed the Government to take all measures to properly broadcast the fact that homosexuality is not a criminal offence, to create public awareness and eliminate the stigma members of the LGBT community face, and to give the police force periodic training to sensitise them about the issue.
- Judiciary played its role, now government and society has to play their role by giving rights to LGBT community.
Best Answer: P29
Shravya Byri
