From Criminalization To Constitutional Morality: The Transformation Of LGBTQ+ Rights In India
Raj Upadhyay, Auro University
ABSTRACT
This paper explores the profound transformation of LGBTQ+ rights in India, from the oppressive criminalization under the colonial Section 377 of the Indian Penal Code to constitutional recognition grounded in the values of dignity, equality, and liberty. For over 150 years, LGBTQ+ individuals were marginalized and criminalized, their identities deemed unlawful by Victorian-era laws that perpetuated stigma and exclusion. The turning point came with landmark judicial rulings such as the 2009 Naz Foundation case and the landmark 2018 Navtej Singh Johar judgment, where the Supreme Court decisively prioritized constitutional morality over traditional social morality, affirming the fundamental rights of LGBTQ+ persons. This progressive jurisprudence recognized sexual orientation as a core aspect of identity and privacy, while also acknowledging transgender rights in key decisions like the NALSA verdict. However, the journey remains incomplete, as courts have shown restraint in extending civil rights such as marriage equality, leaving much to be addressed by the legislature and society. The study highlights the judiciary’s vital role in advancing LGBTQ+ rights through transformative constitutionalism while emphasizing that true equality requires continued legal reform and societal acceptance. This ongoing evolution reflects India’s commitment to dismantling colonial legacies and embracing an inclusive vision of citizenship where all individuals can live with dignity and freedom.
Keywords: LGBTQ+ Rights, Constitutional Morality, Section 377 IPC, Decriminalization, Minority Rights.
