Allahabad High Court on same sex couples & right to live with each other

The Allahabad High Court in SM And Another vs. State of U.P. And 5 Others on 2.11.2020 (and another decision later in the case of P R & Another vs. State of U.P. And 5 Others on 20.1.2021) granted protection to a homo-sexual couple who had 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 petitioners are females who have attained the age of majority and have been voluntarily living with each other on account of their sexual orientation. However, their relationship has faced resistance at the hands of family members as well as the immediate society, as a result of which the petitioners are apprehending harassment and threat to their life and enjoyment of their relationship. The Court expressed that it is the stark reality of the society where the citizens have been 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 Apex Court had in the case of Navtej Singh Johar & Ors. v. Union of India [(2018) 10 SCC 1], granted protection from harassment to a homosexual couple. For reference, High Court reiterated the following principles laid down in the judgment of the above stated 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.

The bench highlighted that the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so therefore it is the duty of theConstitutional Court to monitor as well as observe the Constitutional morality and the rights of the citizens which have been under threat only on account of the sexual orientation and thus disposed off the writ petition accordingly.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Inclusion at Work

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