This could lead to ancillary legal battles as well as legislative reforms for LGBTQ members to enjoy other rights – marrying a person of their choice (as has been held by the SC in the Hadiya-Safin Jahan case), adoption of children, guardianship rights and right to inherit property from partner. This could also make them liable to the flip side of these rights – right to divorce, entitlement to alimony, booking a partner for domestic violence (will it also extend to Section 498A of IPC that punishes a spouse for cruelty in matrimonial, or partner’s, home for dowry), custody right of children and allowing one to slap rape charge if the partner goes back on the promise to marry after establishing consensual sexual relations.
Of the five judges on the bench, CJI Dipak Misra touched on this issue while Justice DY Chandrachud devoted some pages of his judgment to this aspect – enjoyment of all constitutional rights by LGBTQ community members. Justice Chandrachud made an elaborate reference to the LGBTQ community’s future rights. He said, “In seeking an adjudication of the validity of Section 377, these (LGBTQ) citizens urge that the acts which the provision makes culpable should be decriminalised. But this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law.
“The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship. Above all, our decision will speak to the transformative power of the Constitution. For, it is in the transformation of society that the Constitution seeks to assure the values of a just, humane and compassionate existence to all her citizens.”
Frowning at the discrimination meted out to the community, the CJI said, “Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future… the courts must step in whenever there is a violation of fundamental rights, even if the rights of a single individual are in peril.”
Further indication of the stage being set to extend all rights to LGBTQ community members came from Justice RF Nariman, when he directed the Centre to take measures “to ensure this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programmes to reduce and finally eliminate the stigma associated with such persons”.