Respect for each person’s freedom and rights is a fundamental need everywhere in the globe.
— Jóhanna Sigurardóttir, the first openly homosexual head of state and a former Icelandic prime minister.
The legal and social environment around LGBTQIA+ rights, personal laws, and the Right of Choice is steadily changing in India as the Supreme Court of India hears arguments on same-sex weddings. A change in the socio-political discourse on LGBT visibility and autonomy over one’s body and life has been brought about by a number of landmark cases in recent years. In order to increase individual liberty and independence, we trace the instances that have sought to depart from Victorian laws and regressive regulations.
Union of India v. KS Puttaswamy
In the matter of Justice K.S. Puttaswamy (ret.) v. Union of India, a nine-judge bench of the Supreme Court of India rendered a significant decision on August 24, 2017. The Indian Constitution’s Article 21 guarantees the right to life and personal liberty, which include a basic right to privacy that is legally recognised by the court. The Bench concluded that while a person’s capacity to enjoy bodily autonomy depends on their right to privacy, this right does not exist as a “absolute right” in and of itself, and is subject to restrictions comparable to those that apply to the freedom of speech and expression.
However, worries about the violation of this freedom have emerged as a result of recent government action seeking to prevent Indian citizens from signing up for and using VPN services. This government incursion reveals a disrespect for people’s privacy. The government has also mandated that VPN service providers, the most of whom are based outside of India, begin compiling and keeping KYC information on Indian citizens who want to use these services. The information requested also includes a small box asking for the “reason” why the person requested access to the VPN service, which is typically not requested by VPN service providers and can only be verified by a potential customer presenting valid identification documents to a particular service provider. The government will gather, provide, and preserve the desired data under the pretext of “national security.”
Shafin Jahan vs. the Indian Union
A Kerala High Court decision that had declared the marriage of Hadiya, a 24-year-old woman who converted to Islam and wed a man of her choosing, invalid was overturned by the Indian Supreme Court in March 2018. The legitimacy of Hadiya and Shafin Jehan’s marriage, which her family had contested, was upheld by the supreme court. The basic argument has been referred to as a “love jihad” claim in the media. Hadiya’s choice of religion and marriage partner was maintained by Justice Chandrachud in his concurring opinion in the case of Shafin Jahan v. Ashokan K.M. He also reaffirmed that an adult’s freedom to choose her marriage partner or religion belongs in her personal space. In accordance with the basic right to liberty and dignity, the decision supported Hadiya’s ability to choose her life mate.
“…Each person is solely responsible for making their own relationship decisions, whether they take place inside or outside of marriage. Marriage intimacy exists inside a core, inviolable zone of seclusion. Questions of religion have absolutely no bearing on a person’s inalienable right to choose their life mate.The court ruled that social recognition of private, intimate choices is not required.
Union of India v. NALSA
The transgender community now has legal recognition according to the landmark Supreme Court decision from April 2014. The Transgender Persons (Protection of Rights) Act, 2019, will be passed by the Parliament as a result of the court’s decision in the National Legal Services Authority (NALSA) v. Union of India case, which recognised transgender people’s gender identities as legal. While the transgender community still faces a long battle to obtain other rights and adequate representation, the recognition of gender identity has already brought about a number of changes that have confirmed the constitutional rights of transgender people under Articles 14, 15, and 21 of the Constitution.
Union of India v. Shakti Vahini
A three-judge SC bench issued orders in March 2018 to safeguard those who get married without the panchayat’s consent and to stop honour murders at the request of Khap panchayats. Dipak Mishra, then Chief Justice of India, once quoted French philosopher and thinker Simone Weil when he declared that “liberty, taking the word in its concrete sense, consists in the ability to choose.” The court emphasised that the assertion of choice is inherent to liberty and dishonesty while recognising the freedom to select one’s life partner as a basic right.
When a person’s freedom of choice is curtailed in the name of class honour and their physical appearance is regarded with utter contempt, a chilling impact permeates the minds and bones of society as a whole. The ‘honour murders’ or ‘honour crimes’ are not unique to our nation. It is an evil that permeates several other civilizations as well. Such violent acts are motivated by the idea that the victim has dishonoured the family or the society. These violent crimes target women in particular. Members of a woman’s family may assault men who they believe are in a “inappropriate relationship” with the lady. One of the reasons of honour crimes has been women rebelling against their male-dominated cultures and changing their economic and cultural position, the survey said.
In re: Union of India, Navtej Johar
2018 saw the groundbreaking Supreme Court ruling that eliminated Section 377 of the IPC. The court determined that the Indian Penal Code section, 1860, was unconstitutional since it criminalised “carnal intercourse against the order of nature.” The court acknowledged that the IPC provision made it illegal for individuals of the same sex to engage in consenting sexual activity. Navtej Singh Johar, a dancer and advocate for LGBTQIA+ rights, filed the petition in which he contested Section 377 of the Penal Code on the grounds that it infringed upon his constitutional rights to freedom of expression, privacy, equality, and protection against discrimination. The Court maintained the idea that sexual orientation is an essential component of self-identity and that to reject it would be against one’s right to life. The SC also said that basic rights cannot be argued to be unimportant because they only apply to a tiny portion of the people.
Central Administrative Tribunal v. Deepika Singh
The Supreme Court’s historic judgement on August 16, 2022 expanded the legal concept of “family” in India. According to the Central Services (Leave Rules) of 1972, a woman cannot be denied maternity leave for her biological kid on the grounds that her husband had two children from a previous marriage. On September 3, 2019, the appellant was refused maternity leave for her first biological child on the basis that she had previously used the benefit for her two still-living children from her husband’s previous marriage.
The Supreme Court’s decision recognised “atypical” households, such as gay marriages, which could not be restricted to conventional parental duties. The court’s decision disassociates itself from the conventional notion that heteronormative unions and family structures invalidate LGBT identities and experiences.
