Key moments that shaped LGBTQIA+ rights in India

While the apex court put the onus on the Parliament to frame the necessary laws, here are the key moments that shaped LGBTQIA+ rights in India.

The Supreme Court on Tuesday held that the law does not recognise the right to marry for same sex couples unless the Parliament makes a law for it. The SC also refused to strike down the Special Marriage Act and Foreign Marriage Act for not recognising queer marriages. 

While the apex court put the onus on the Parliament to frame the necessary laws, here are the key moments that have shaped LGBTQ rights in India:

Founding of LGBTQ+ organisations in India

Founded around the 1990s, AIDS Bhedbhav Virodhi Andolan (ABVA) was one of the first HIV/AIDS activist movements in New Delhi. They gained popularity with their publication ‘Less than Gay’ where they advocated for rights of the LGBTQIA+ community, same-sex marriage, parenting and decriminalising homosexuality.

Decriminalising Section 377

• In 2001, an NGO, Naz Foundation, filed a Public Interest Litigation to decriminalise homosexuality and strike down the 158-year-old colonial law under Section 377.

• In 2009, the Delhi HC ruled that Section 377 cannot be used to punish two consenting adults for having sex. 

• However, in 2013, the Supreme Court reversed the verdict of the Delhi HC and said that the right to decriminalise homosexuality lies only with the Parliament and not the court. While several petitions were filed challenging the SC verdict, the apex court on January 5, 2018 formed a Constitution Bench to hear the challenge to Section 377.

• On September 6, 2018, a five-judge bench decriminalised same-sex relations between consenting adults as it partially struck down Section 377 of the Indian Penal Code. While this was a major victory for the members of the LGBTQIA+ community, several legal cases have been filed since seeking the legalisation of same-sex marriage. 

• “Social exclusion, identity seclusion, and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society,” said the then-Chief Justice Dipak Misra.

Transgender Persons (Protection of Rights) Act

A bill to provide for the protection of rights of transgender persons and their empowerment was passed in 2019. The Act provides legal recognition of transgender individuals as a third gender, and recognises their right to self-identification based on their gender identity. Under the provisions made in the bill, transgender persons can not be discriminated against or given “unfair treatment” by any person or establishment in matters pertaining to education, employment, healthcare services.

The bill mandates the governments to formulate welfare schemes and programmes to facilitate and support livelihood for transgender persons including their vocational training and self-employment. 

SC’s same-sex ruling on October 17

The Supreme Court on October 17 passed a judgement that it could not legally recognise same-sex marriages, after hearing a batch of pleas seeking legal sanction for the same. The apex court put the onus on the Parliament to frame the necessary laws. "This court cannot make law, it can only interpret it and give effect to it," the CJI said while passing judgement.

He had started by saying there were four judgements in the case, one from him, and the others from the Supreme Court bench hearing the matter.

The bench took into the record the Union government's statement that it will constitute a committee to streamline the rights and benefits to be extended to queer couples.

It, however, did not strike down the Central Adoption Resource Authority (CARA) regulations either, which prohibit unmarried and queer couples from adopting.