The Allahabad High Court recently granted protection to a homosexual couple, who alleged they were 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 division bench of Justice Mahesh Chandra Tripathi and Justice Sanjay Kumar Pachori passed this order while hearing a petition filed by Poonam Rani and another.
The Writ Petition has been preferred for a direction to respondent 2 and 3 not to adopt any coercive process against the Petitioners and for a further direction to respondent 4 to 6 not to interfere in the peaceful lives of the petitioners.
“The petition highlights the stark reality of the society where the citizens are facing discrimination at the hands of society only on account of their sexual orientation despite it being well settled that sexual orientation is innate to human beings,” the Court remarked.
It is averred that the first petitioner is a major woman having born on January 10, 1998 and the second is also a major with date of birth on January 5, 1999. Both petitioners are in a live-in relationship for a couple of years and are voluntarily living with each other on account of their sexual orientation. They are also facing resistance from their family members.
The Court, while quoting the Supreme Court ruling in the case of Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1, granted protection from harassment to the couple.
In the case of Navtej Singh Johar (supra), the Apex Court had considered the plight of LGBT community in context of the constitutional principles and had struck down Section 377 of IPC.
The Court has proceeded to examine the record in question as well as respectfully considered the judgments cited at Bar. For ready reference, the relevant portion of the judgment of Navtej Singh Johar (Supra) is quoted as under:‐
(1) Sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality.
(2) Intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state.
(3) Sodomy laws violate equality by targeting a segment of the population for their sexual orientation.
(4) Such a law perpetrates stereotypes, lends authority of the state to societal stereotypes and has a chilling effect on the exercise of freedom.
(5) 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.
(6) 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 aforesaid facts and circumstances, 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, as such considering the facts and circumstances of the case, we direct the Senior Superintendent of Police, Saharanpur to extend suitable protection to the petitioners in the event they approach the Senior Superintendent of Police, Saharanpur for the necessary protection and ensure that no harassment is caused to them,” the order reads.
WRICA_1213_2021-1