Same-Sex Couple Facing Discrimination:Allahabad High Court Calls It 'Stark Reality Of Society', Grants Them Protection
The Allahabad High Court last week granted protection to a homo-sexual couple who alleged before the Court that they are being threatened with violation of their rights enshrined under Article 21 of the Constitution of India only on the ground of their sexual orientation. The Bench of Justice Mahesh Chandra Tripathi and Justice Sanjay Kumar Pachori was hearing the plea of one Poonam...
The Allahabad High Court last week granted protection to a homo-sexual couple who alleged before the Court that they are being threatened with violation of their rights enshrined under Article 21 of the Constitution of India only on the ground of their sexual orientation.
The Bench of Justice Mahesh Chandra Tripathi and Justice Sanjay Kumar Pachori was hearing the plea of one Poonam Rani and her partner seeking protection. They also alleged that they are facing hard resistance at the hand of their family members.
The Court noted that both the petitioners are major, earning handsome amount and are living in live-in-relationship since a couple of years and are voluntarily living with each other on account of their sexual orientation.
Importantly, the Court, while perusing their plea, remarked,
"The petition highlights the stark reality of the society where the citizens are facing discrimination at the hands of the society only on account of their sexual orientation despite it being well settled that sexual orientation is innate to human being."
The Court also observed,
"Constitutional Court is duty bound to monitor and observe the Constitutional morality as well as the rights of the citizens which are under threat only on account of the sexual orientation."
The Court, while quoting the Apex Court's ruling in the case of Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1, granted protection from harassment to a homosexual couple.
In the case of Navtej Singh Johar (supra), the Supreme Court had considered the plight of LGBT community in context of the constitutional principles and had struck down Section 377 of IPC as incantational.
Referring to this judgment, the High Court reiterated the following principles laid down in the case:
- Sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality;
- Intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state;
- Sodomy laws violate equality by targeting a segment of the population for their sexual orientation;
- Such a law perpetrates stereotypes, lends authority of the state to societal stereotypes and has a chilling effect on the exercise of freedom;
- The right to love and to a partner, to find fulfillment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights;
- Sexual orientation implicates negative and positive obligations on the state. It not only requires the state not to discriminate, but also calls for the state to recognise rights which bring true fulfillment to same-sex relationships.
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Recently, the Orissa High Court allowed the petition of a 24-year-old woman to get back her same-sex partner who was forcibly separated from her by partner's family.
While referring to the judgment of the Supreme Court in the case of National Legal Services Authority vs. Union of India and others, (2014) 5 SCC 438 and Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1 , the High Court concluded that it is evident that all humans have the universal right of enjoyment of human rights, the right to equality and non-discrimination, the right to recognition before the law, right to life, the right to privacy and right to treatment with humanity while in detention etc.
"There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner," the Bench observed.
Similar findings were made by the Uttarakhand High Court in June last year.
Case Title: Poonam Rani And Another v. State Of U.P. And 5 Others [WRIT - C No. - 1213 of 2021]
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