How to move forward in lesbian and gay rights case

By Shreya Gupta, Bharucha & Partners
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Arecent judgment of the Supreme Court of India has led to an uproar among human rights activists. A large section of the society believes that the overturning of Delhi High Court’s decision in the case of Suresh Kumar Kaushal & Another v NAZ Foundation & Ors violates the fundamental rights of lesbian, gay, bisexual and transgender (LGBT) persons, guaranteed under articles 14, 15, 19 and 21 of the constitution of India.

Court’s findings

The two-judge bench comprising Justice Singhvi and Justice Mukhopadhaya upheld the constitutional validity of section 377 of the Indian Penal Code, which criminalizes “unnatural” sexual acts. In pronouncing its judgment, the court observed that the number of LGBT persons in India is insignificant and does not warrant the designation of a “class” for the purposes of article 14 of the constitution and consequently could not be subject to discrimination.

Shreya Gupta
Shreya Gupta

The court said that Delhi High Court was too reliant on foreign decisions, which cannot be blindly used as aids to interpret Indian laws, as to do that would not appeal to the Indian sense and sensibility.

The judgment was also founded on strict adherence to the theory of separation of powers. The Supreme Court held that the appropriate forum to debate issues such as the efficacy and validity of a law was the legislature and not before the courts. The responsibility of looking into the constitutional validity of section 377 was, therefore, left to the legislature.

Whatever the merits (or demerits) of the Supreme Court’s decision, it is clear that it will be challenged.

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Shreya Gupta is an associate at Bharucha & Partners.

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