Allahabad High Court Extends Protection To Same Sex Couple, Acknowledges The Stark Reality of Discrimination Faced By The Community In The Society

"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 Bench of Justices Shashi Kant Gupta and Pankaj Bhatia said.

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.

In the case at hand, the Petitioners were gainfully employed females, voluntarily living with each other on account of their sexual orientation since a couple of years.

The Court noted that their relationship had somehow faced resistance at the hands of their family members as well as the immediate society, as a result whereof, the Petitioners apprehended harassment and threat to their life and enjoyment of their relationship.

Thus, considering the facts and circumstances of the case, the Court directed the concerned Superintendent of Police to extend suitable protection to the Petitioners and ensure that no harassment is caused to them.

"This Court being a 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 Bench observed.

It emphasized that even the Supreme Court had observed that Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity.

It reiterated,

"Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power."

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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 this year.

The Delhi High Court is presently seized of a petition seeking to recognize the rights of same-sex couples to get married under the Hindu Marriage Act, 1956.

Marriage Equality For Same-Sex Couples: The Delhi HC Says This Is Not an Adversarial Petition

Case Title: Sultana Mirza & Anr. v. State of UP & Ors.

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