INTRODUCTION
The decriminalisation of consensual same-sex relations through the Supreme Court’s landmark judgment in Navtej Singh Johar v Union of India [1] (2018), marked as a crucial point in Indian Legal history by striking down Section 377 of the Indian Penal Code and deeming it as unconstitutional. This decision represents an important move toward equality and dignity for lesbian, gay, bisexual, transgender, and queer (LGBTQ+) individuals. However, merely decriminalising does not mean achieving complete equality. There are still major gaps in essential areas like marriage, rights related to family formation, and the actual enforcement of protective measures, especially for transgender individuals. These gaps show an ongoing constitutional journey toward real equality.
MARRIAGE EQUALITY: AN INCOMPLETE JOURNEY
Marriage is a constitutionally protected, socially recognised, and involves many rights and privileges. In the case of Shafin Jahan v. Asokan K.M[2], the Hon’ble Supreme Court highlighted that a person can marry whomsoever they like, as it is the fundamental right to marry guaranteed under Article 21[3]. But in the case of Supriyo v Union of India[4]The Supreme Court declined to grant same-sex couples the right to marry, determining that changes to marriage laws fall under the domain of legislation instead of the judicial system. The court encouraged the legislation to consider extending legal protections to queer couples and directed the formulation of the panel to examine these issues. By refusing equality in the matter of marriage, the Court maintained a narrow view of judicial capacity, as without marriage recognition, they face exclusion from inheritance rights, joint property ownership, and adoption rights. Article 14[5] prevents discrimination by guaranteeing equal rights for everyone. This further raises questions since same-sex marriages are not equally acknowledged as opposite-sex marriages.
ADOPTION & FAMILY RIGHTS
In India, the adoption law is regulated by the personal law, but there are also secular laws that guarantee individuals this right. But none of these laws recognises homosexual couples’ right to adopt children.[6] The current adoption laws in India, primarily the Hindu Adoption and Maintenance Act of 1956[7] and the Juvenile Justice (Care and Protection of Children) Act of 2015[8], do not specifically allow joint adoption by same-sex couples. The Central Adoption Resource Authority (CARA) only allows adoption by a single individual in a same-sex relationship, which means the other partner has to give up their right to adopt a child. Although CARA’s earlier circular preventing live-in partners from adopting has been withdrawn, same-sex couples still cannot adopt together in practice.[9] Without a statutory reform, queer couples will remain legally invisible to adoption and family rights and remain vulnerable to discrimination.
COHABITATION AND RELATIONSHIP RIGHTS
Besides traditional marriage, the legal stance on cohabitation and non-traditional relationships varies. Various High Courts and the Supreme Court have slowly begun to support the idea of the rights of individuals of the same sex living together, irrespective of their gender or sexual orientation. In the case of Chinmayee Jena v State of Odisha[10]The Odisha High Court ruled that a consensual relationship between two adults, including a transgender person, is protected by Article 21 of the Constitution. This article guarantees the right to life and personal liberty. The Court found that sexual orientation and gender identity are vital parts of a person’s freedom, dignity, and privacy. It stated that opposition from family or society cannot override these basic rights.
However, in the case of Ujjawal v State of Haryana, the Punjab and Haryana High Court dealt with a petition filed by a same-sex couple seeking police protection from threats posed by their families due to their relationship. The Court declined to grant protection, observing that such relationships were not socially acceptable and could potentially disturb social harmony. The ruling reflected a traditional view of the law. It prioritised moral & societal values over individual freedom. This stance conflicted with more progressive rulings that recognised the right of same-sex couples to live together. This judgment has been criticised for diluting the constitutional rights under Articles 14 & 21.
LACK OF PROTECTION AGAINST CONVERSION THERAPY
The largest issue for LGBTQ+ individuals in India is that of conversion therapy, which tries to change the sexual orientation or gender identity of an individual back to ‘normal’; something that is fully disapproved of by medical and psychological associations, yet still practised in this country under the disguise of ‘religious’ or ‘medical’ treatment.[11] In the case of S. Sushma v Commissioner of Police[12]The Madras High Court delivered a landmark judgement by effectively banning the practice of Conversion therapy. The court held that any attempt to cure or change an individual’s sexual orientation or gender identity is illegal, unconstitutional, and in violation of Article 21.
But, even after these judgments, no statute legally banned conversion therapy, and no one is held accountable for performing these methods. Due to this, most LGBTQ+ individuals are forced by their families or societies to undergo conversion therapy. This lack of legal protection leaves the LGBTQ+ community vulnerable to psychological abuse and emotional damage resulting from long-term mental health issues such as anxiety, depression, and even suicidal ideation due to coerced involvement in conversion therapy.[13]
TRANSGENDER RIGHTS & THE LIMITS OF STATUTORY PROTECTION
Even though the judiciary has recognised transgender rights, legal protections in India remain limited and inadequate. In the case of NALSA v Union of India, the Supreme Court recognises Transgender persons as a third gender and protects their fundamental rights as stated in the Constitution. The court noted that gender identity is important to personal freedom, dignity, and self-expression, as recognised in Articles 14, 15, 19, and 21. However, the Transgender Persons (Protection of Rights) Act, 2019, undermines the principle of self-identification by creating a bureaucratic certification system. This requires them to obtain identity certificates from a District Magistrate. To be recognised as male or female, they need to provide documentation of sex reassignment surgery. This approach goes against the autonomy-focused method established in the case of NALSA.
Further, the punishments for sexually abusing transgender individuals under the Act are much less severe than those for similar offences against cisgender women. The punishment for the physical and sexual abuse of transgender people is a minimum of six months and a maximum of two years in prison, with a fine. On the other hand, men convicted of raping a woman face a minimum of 10 years’ imprisonment, with the possibility of an extension to life. Lighter sentences send a message to society that the lives of transgender individuals are not valuable enough to protect. This increases their risk of violence. One of the first transgender judges in India, Swati Bidhan Baruah, said, “The huge discrepancy in rape laws and the punishment for sexually assaulting a transgender person is just another way of showing that our lives don’t matter.”
CONCLUSION
The progress in India regarding LGBTQ+ rights, particularly the decriminalisation of homosexuality, represents a significant step in upholding constitutional principles of dignity, privacy, and personal autonomy. But, even after the decriminalisation, it does not provide complete equality. In India, there are still many queer people who are excluded in real life. There are still important gaps, such as a lack of equal rights in marriage, adoption, family affairs, protection against discrimination, inheritance, and social security benefits. Consequently, the law continues to overlook LGBTQ+ relationships. In the absence of a clear legal framework, LGBTQ+ individuals continue to depend on differing interpretations of the law by the courts. True equality will only be achieved when the legal system stops viewing queer lives as exceptions and recognises them as an essential part of India’s principles of justice, dignity, and freedom.
Author(s) Name: Krishna Sood (Himachal Pradesh National Law University, Ghandal, Shimla)
References:
[1] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
[2] Shafin Jahan v Asokan K M and Others (2018) 16 SCC 368
[3] Constitution of India 1950, art 21
[4] Supriyo Chakraborty v Union of India (2023) SCC OnLine SC 1348
[5] Constitution of India 1950, art 14
[6] Yashmeet Sehrawat, ‘India’s LGBTQ+ Community: The Right of Adoption’ (2023) 2(3) International Journal of Human Rights Law Review art 5
[7] Hindu Adoption and Maintenance Act 1956
[8] Juvenile Justice (Care and Protection of Children) Act 2015
[9] ‘Lacunae in Law: LGBTQ+ Community’s Right to Adoption’ (Expert Speak, Young Voices, 9 September 2022) < https://www.orfonline.org/expert-speak/lacunae-in-law-lgbtq-communitys-right-to-adoption > accessed 16 January 2026
[10] Chinmayee Jena v State of Odisha (2020) SCC OnLine Ori 520
[11] Anushree Dwivedi, Aryan Menon and Aditi Vibhute, ‘Unfinished Fights for LGBTQ+ Community Rights in India’ (2024) 7(1) Indian Journal of Law and Legal Research 3799
[12] S Sushma v Commissioner of Police (2021) SCC OnLine Mad 1724
[13] Dwivedi, Menon and Vibhute (n 1) 3799