Whether right to sexual orientation is a part of Article 21 of the Constitution


Court :
Supreme Court of India

Brief :
Upon hearing the parties, the Court held that, sexual orientation is inextricable facet of Article 21 and thus it cannot be violated. The Court also gave directions for the recognition of the transgender community. Some of the notable directions include providing public toilets for the Community, reservation in educational institutions.

Citation :
REFERENCE: WRIT PETITION (CIVIL) NO.400 OF 2012 PARTIES Petitioner:National Legal Services Authority Respondent:Union of India

  • JUDGMENT SUMMARY:National Legal Services Authority v. Union of India
  • DATE OF JUDGMENT:  15/04/2014
  • JUDGES:K.S. Radhakrishnan, A.K. Sikri

SUBJECT:

The judgment revolves around the question of whether right to sexual orientation is a part of Article 21 of the Constitution.

FACTS:

The petitioner a non-governmental organisation filled a writ petition under Article 32 of the Constitution before the SC for the recognition of third gender rights.

IMPORTANT PROVISIONS:

THE INDIAN CONSTITUTION:

Article 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law. 

Article 14:  The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

ISSUES:

Whether right to sexual orientation is a part of Article 21 of the Constitution?

ANALYSIS OF THE JUDGEMENT:

The petitioner contended that,

  • Non-recognition of sexual orientation violated an individual’s right to dignified life under Article 21
  • Every person of the transgender community has a legal right to decide their sex orientation and to espouse and determine their identity.
  • Transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders.

Respondents contended that, the issue raised by the petitioner is a serious issue for which the Ministry of Social Justice and Empowerment has formed a Committee, called “Expert Committee on Issues relating to Transgender”, to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to the Ministry.  Upon the recommendations being given a proper legislation would be enacted. 

Upon hearing the parties, the Court held that, sexual orientation is inextricable facet of Article 21 and thus it cannot be violated.  The Court also gave directions for the recognition of the transgender community.  Some of the notable directions include providing public toilets for the Community, reservation in educational institutions.

 

Nandhini SR
on 10 July 2020
Published in Constitutional Law
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