The Navtej Singh Johar judgement of 2018, was a breath of fresh air. There was a hope of equality and acceptance. 3 years later, sadly, the LGBTQIA+ community is still yet to get access to civil rights and legal protection.
Facts of the Case
A video that went viral, that depicted a person displaying affection to his same-sex partner. Owing to the virality of the video, the person depicted video, lost his appointment as the Home Guard. The District Commandant of Home Guards, Bulandshahar filed the cancellation of his appointment. The grounds of dismissal was that the video was “indecent” in nature. The order passed by the officer who cancelled the appointment stated in his Counter Affidavit that,
“Sexual orientation of the petitioner was stated to be indulgence in an untoward activity.”
Allahabad High Court
The Allahabad High Court after hearing the arguments quoted that,
“It was held that any display of affection amongst the members of the LGBT community towards their partners in the public, so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception.”
The single-judge bench of Justice Sunita Agarwal also cited the landmark case of Navtej Singh Johar v Union of India ((2018) 10 SCC 1), when observing that,
“The Apex Court in the said case has held that the sexual orientation of the person is his individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned.”
The Court when ordering the reinstatement of the Home Guard stated, “The respondent No.2 i.e., the Commandant General of Home Guards, Head Quarters, U.P. Lucknow is directed to take the petitioner back in service with immediate effect. The petitioner shall be entitled to all admissible dues and the honorarium shall be paid regularly as and when the same falls due.” The Court in its judgement described the order to be “vindictive in nature”
Similar Decisions
High Courts across the country have tried their best to uphold the rights of the members of the LGBTQIA+ community. Few such instances include:
- Orders passed for the protection of the transgender community by the Karnataka, Jharkhand and Telangana High Courts
- Kerala High Court’s order that stated: “Person cannot be denied a legitimate right only because she is a transgender”.
- The recent inclusion of Transgender as a separate gender category in the NCRB records by the Centre as informed to the Delhi High Court.
- Calcutta High Court decision of reservation and other benefits of the transgender applicants of the Joint CSIR-UGC examination.
These are a few instances where the Court upheld minority rights and basic human rights.
Pramod Kumar Sharma v. State Of U P And 2 Others [WRIT – A No. – 8399 of 2020]
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