Supreme Court Orders Empowering Queer And Personal Rights

--– Jóhanna Sigureardóttir, a former Icelandic Prime Minister and the first openly gay head of state.

With the Supreme Court of India hearing arguments on same-sex marriages, the legal and social landscape around LGBTQIA+ rights, personal laws and the Right of Choice is gradually evolving in the country. A number of landmark cases in recent years have led to a shift in the socio-political discourse on queer visibility and autonomy over one’s body and life. We map the cases that have attempted to break away from Victorian laws and regressive rules in order to strengthen individual liberty and freedom.

KS Puttaswamy v Union of India

On August 24, 2017, a nine-judge Bench of the Supreme Court of India delivered a crucial judgment in the case of Justice K.S. Puttaswamy (retd.) vs Union of India. The bench formally acknowledged the right to privacy as a fundamental right embedded in the right to life and personal liberty, guaranteed under Article 21 of the Indian Constitution. The Bench held that while the right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy, it is still not an “absolute right” in and of itself, placing limitations in a manner similar to those placed on the right to free speech and expression.

However, concerns over the breach of this right have arisen due to the recent interference by the government aiming to restrict Indian nationals from subscribing to and accessing VPN services. This intrusion at the government level reflects a disregard for individual privacy. Furthermore, the Government has demanded that VPN service providers, most of who operate in jurisdictions outside India start collecting and maintaining KYC records on Indian nationals who seek to avail of these services. The requested information includes personal details of an individual such as full name, phone number, home address, and more (information which generally is not sought by VPN service providers, and which may only be validated by a potential customer having to furnish valid identity documents to a given service provider), along with a small box asking for the “reason” for which an individual sought access to the VPN service. The requested data will be collected, furnished and stored by the government on the grounds of “national security”.

Shafin Jahan v Union of India

In March 2018, the Indian Supreme Court set aside a Kerala High Court judgment that annulled the marriage of a 24-year-old woman, Hadiya who converted to Islam and married a man of her choice. The apex court affirmed the validity Hadiya and Shafin Jehan’s marriage, which was challenged by her family. Media outlets have described the underlying dispute as an allegation of "love jihad". Justice Chandrachud's concurring opinion in the case (Shafin Jahan v Ashokan K.M.) upheld Hadiya’s choice of religion and marriage partner and reiterated that an adult’s right to make decisions in marriage or religion falls within her zone of privacy. The ruling upheld Hadiya’s right to choose one’s partner as a facet of the fundamental right to liberty and dignity.

“…The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith…Social approval for intimate personal decisions is not the basis for recognising them,” the court stated.

NALSA v Union of India

The milestone Supreme Court judgement in April 2014 ensured legal recognition to the transgender community. The verdict on the National Legal Services Authority (NALSA) versus Union of India judgement, legally recognised the gender identity of transgender persons, granting the community a raft of rights and entitlements and paving the way for the Parliament to enact the Transgender Persons (Protection of Rights) Act, 2019. While the Trans community has a long struggle ahead of them to access other rights and get their due representation, granting gender identity recognition has resulted in several changes for the transgender community which affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution.

Shakti Vahini v Union of India

In March 2018, a three-judge Bench on the SC issued directives for the protection of those who marry without the approval of the panchayats and for the prevention of honour killings at the behest of Khap panchayats. Quoting French philosopher and thinker, Simone Weil, the then Chief Justice of India Dipak Mishra said, “Liberty, taking the word in its concrete sense consists in the ability to choose.” The court recognized the right to choose one’s life partner as a fundamental right while emphasizing that the assertion of choice is inalienable to?liberty and dishonesty.

When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. “The so-called ‘honour killings’ or ‘honour crimes’ are not peculiar to our country. It is an evil which haunts many other societies also. The belief that the victim has brought dishonour upon the family or the community is the root cause of such violent crimes. Such violent crimes are directed especially against women. Men also become targets of attack by members of the family of a woman with whom they are perceived to have an ‘inappropriate relationship’. Changing cultural and economic status of women and the women going against their male-dominated culture has been one of the causes of honour crimes,” the report read.

Navtej Johar v Union of India

The breakthrough Supreme Court order repealed Section 377 of the IPC in 2018. The bench?unanimously held that?the Indian Penal Code section, 1860, criminalized ‘carnal intercourse against the order of nature’, and was thus unconstitutional. The court recognized that the IPC section criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer and LGBTQIA+ rights champion, Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court upheld that sexual orientation is an inherent part of self-identity and denying the same would be in violation of the right to life. The SC also said that fundamental rights cannot be denied on grounds that such laws only affect a minuscule section of the population.

Deepika Singh vs Central Administrative Tribunal

The August 16, 2022 landmark Supreme Court decision widened the definition of 'family' under Indian law. A woman cannot be declined maternity leave under the Central Services (Leave Rules) 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage. The appellant was denied a maternity leave on September 3, 2019, for her first biological child on grounds that she had already availed the benefit for her two surviving children, born to her spouse from his first marriage.

The Supreme Court ruling gave recognition to “atypical” families, including queer marriages, which could not be confined in traditional parenting roles. The court ruling breaks free from the prescribed idea of heteronormative marriages and family structures negating queer identities and experiences.