Role of Persuasive Legal Instruments for the Recognition of LGBTQ Rights in India

Abstract

Gender identity is one of the most fundamental aspects of life. The time has come that one must realize that gender identity cannot be categorised singularly to one’s orientation which may be associated with his or her birth. Gender identity and sexual orientation is not only limited to the intimate lives of the individual but it impacts everything such as their family, professional, social and educational life. Therefore, gender identity and sexual orientation has to be connected with the human rights perspective to avail all the rights that is being guaranteed to a human. It is only then the basic rights of being a human can be realised by all irrespective of their identity or sexual orientation. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. However, for the LGBTQ rights in India, the realisation of them being human and should be treated equal in dignity and rights was far from the truth until the year 2018. It was only in September 2018, the Supreme Court delivered a historic ruling legalising LGBTQ rights and partly holding Section 377 of the Indian Penal Code as unconstitutional. The colonial-era sodomy law violated the basic tenets of the constitution i.e., right to equality, right to privacy, and right to live with dignity. The right to life and personal liberty is a constitutionally guaranteed right that lays stress on the judicial recognition of such rights as an inextricable component of Article 21 of the Constitution and denial of it leads to discrimination which would offend Article 14 of our Constitution. Therefore, keeping in view the rights guaranteed by the Constitution of India, the rights of the LGBTQ community received the legal recognition in 2018. The LGBT rights in India would have not seen the light of the day if it was not looked into through the constitutional and human rights perspective. However, in recognition to the rights of the LGBTQ in India that stands today is also due to the role that has been played by the persuasive legal instruments such as international conventions, foreign judgments, etc.