SVKM’s NMIMS SCHOOL OF LAW

NAVI MUMBAI

Legal Methods Research Paper

TOPIC: - Indian Jurisprudence on Discrimination
faced by LGBTQAI+ at workplace.

UNDER THE GUIDANCE OF

PROF. PREETI KAVIKATTA

NAME: - Saniya Avadhoot Savant

B.B.A.LL. B(Hons.)
First year, Semester I
Date of Submission: - 11th February 2021

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 DECLARATION

I the undersigned solemnly declare that the research work on Indian

Jurisprudence and discrimination faced by the LGBTQ Community at
workplace is based on my own work carried out under the guidance of Prof.
Preethi Kavilkatta.
I assert the statement made and conclusions drawn are an outcome of my
research work. I further certify that: -
1) The work contained in the research paper is original and has been done
by me under the general supervision of my supervisor.
2) The work has not been submitted to any other institution foe any other
degree/diploma/certificate in this institution or any other university of
India and abroad.
3) I have followed the guidelines provided by the university in writing the
report.
4) Whenever I have used materials (data, theoretical analysis and text) from
other sources, I have given credit to them in the text of the research paper
and giving their details in the references.

SANIYA SAVANT.

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 TABLE OF CONTENT

SR. No. Topic Page

no.

1. Title Page 1
2. Declaration 2

3. Table of content 3

4. Table of Cases 4

5. Abstract 5

6. Introduction 5

7. Chapter 1 6

8. Chapter 2 10

9. Conclusion 13

10. Bibliography 14

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 TABLE OF CASES
Content
Naz Foundation Govt. v. NCT of Delhi.................................................................................7

Suresh Kumar Koushal vs Naz Foundation............................................................................7

National Legal Services Authority v. Union of India.............................................................8

K.S. Puttaswamy v Union of India (2017).............................................................................8

Navtej Singh Johar V. Union of India....................................................................................8

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 ABSTRACT
Rights of LGBTQ is one of the major evils in the society. In my view this community faces
more discrimination, bigotry. But we are on our path to eliminate this discrimination with the
decriminalization of Section 377 by the Supreme court. This judgement brought a limelight
on various issues faced by the LGBTQ community. In this paper, I will be focusing more on
the discrimination they face when it comes to employment opportunities, and discuss various
legislative measures can for the same along with brief explanation of some iconic cases who
eventually led to the scrapping of the draconian Section 377. I hope my paper does justice
and gives voice to the struggles of the LGBTQAI+ Community.

Key words

court | community | sexual | discrimination | right | rights | 377 | employment

| transgender | protection |

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 INTRODUCTION
I would like to begin this paper by quoting Justice Indu Malhotra’s statement that she said
while reading her 50-page verdict that “History owes an apology to the members of this
community and their families, for the delay in providing redressal for the ignominy and
ostracism that they have suffered through the centuries”1. 

Section 377 of IPC which criminalised all kinds of non-procreative sexual intercourse was
enacted in the pre-independence era by the British colonial Government. The draconian law was
not only criminalized sexual intercourse against the homosexuals but also all other forms of non-
traditional sexual intercourse even between that of heterosexual union.

The recent judgment of the United States discussed the point of non-removal of employees
merely on the ground of their transgender and homosexual identity. The courts increased the
parameters of words “discrimination on the basis of sex” in the Civil Rights Act 1964 by
including gender identity and sexual orientation under the definition of sex. The court also
said that employment decisions have nothing to do with a person’s homosexuality and
transgender status2.

This brings to limelight to issue of discrimination against the lgbtqai+ community in India.
Suspension and termination based on sexual orientation is not new in India. In the year 2018
Avjit Kundu, a teacher in a reputed school of Kolkata alleged that he was fired for the sole
reason of coming out as gay to his colleagues3. There are a plethora of cases in India where
people are sacked because of their sexual orientation on the grounds of “unlawful behaviour”
and “deviant mischief.” Initially, even the legal framework of India explicitly was biased
against the people of the LGBTIQ+ community. It was only after the first Transgender

1
Apurva Vishwanath et al., JUSTICE INDU MALHOTRA'S READING OF SECTION 377 VERDICT WAS A MIC-DROP
MOMENT THEPRINT (2018), https://theprint.in/opinion/off-court/justice-indu-malhotras-reading-of-section-377-
verdict-was-a-mic-drop-moment/113642/ (last visited Feb 10, 2021).

2
BIZJOURNALS.COM, https://www.bizjournals.com/sanantonio/news/2020/08/02/us-supreme-court-bans-sex-
discrimination-against.html (last visited Feb 10, 2021).

3
Premankur Biswas, KOLKATA TEACHER SAYS HE WAS FIRED FROM REPUTED SCHOOL BECAUSE HE IS
HOMOSEXUAL THE INDIAN EXPRESS (2018), https://indianexpress.com/article/india/kolkata-teacher-says-he-
was-fired-from-reputed-school-because-he-is-homosexual-5104894/ (last visited Feb 11, 2021).

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Protection Bill in the year 2016 and the case of Navtej Singh Johar v. Union of India that
India where Section 377 was declared unconstitutional as it infringes the fundamental rights of
intimacy, autonomy and identity.

Chapter 1
The evolution of decriminalization of Section 377

It took more than 70 years and almost 2 decades of the long legal battle to scrape down this old
age law which was used as a tool of exploitation and harassment for people whose gender
orientation and sexual preferences all those who didn’t conform with the traditional binary of
sexuality and gender. But scrapping of the Victorian Section 377 is insufficient for securing basic
human rights to the LGBT+ community in India 4. Though the beginning of the LGBT rights
movement can be traced back to the early 1990s but all the major developments that
happened since then can be discussed in the reference of the following key judgements and
their aftermath.

Naz Foundation Govt. v. NCT of Delhi

In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a park
and detained a few men on the suspicion of them being homosexuals and arrested more than
nine people who worked for the NGO Bharosa trust. This trust was working to create
awareness amongst people about safe sexual practices and STD’s. These people were then
accused of running a sex racket and were denied bail. The Lawyers collective, a legal aid
organization along with Naz foundation went ahead and filed a petition before the Delhi High
Court in 2001 challenging the constitutional validity of Section 377 of IPC. The petitioner
argued that Section 377 of IPC violated the fundamental right to life and liberty, right to
privacy and dignity, right to health, right to equality and freedom of expression. Finally, in
2009 the High Court of Delhi held that Section 377 of IPC imposed an unreasonable
restriction over two adults engaging in consensual intercourse in private. Thus, it was in

4
Guest Writer - et al., A YEAR AFTER SECTION 377: WHERE ARE WE NOW? FEMINISM IN INDIA (2020),
https://feminisminindia.com/2019/09/06/year-after-section-377-where-are-we/ (last visited Feb 11, 2021).

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direct violation of their basic fundamental rights enshrined under Articles 14,15,19 and 21 of
the Indian Constitution5.

Suresh Kumar Koushal vs Naz Foundation

Various Individuals and faith-based groups vehemently rejected the idea of decriminalizing
homosexual relationships, in light of India’s rich history bathed in ethics and tradition. They
further appealed before the Supreme Court of India to reconsider the constitutionality of
Section 377. When the community, after eight years of a long battle, was just letting out a
sigh of relief, the Supreme Court on 11th December 2013, overturned the judgment of the
Delhi High Court and re-criminalised homosexuality6. 

National Legal Services Authority v. Union of India

The Supreme Court in its landmark judgement created the ‘third gender’ status for hijras or
transgenders. As earlier, the transgender people were forced to describe themselves as either
male or female, but after the judgement, they could proudly identify themselves as
transgender. the court recognised the difference between both the gender and biological
components of sex. The court defined biological characteristics to include genital, secondary
sexual features, chromosomes etc. but defined gender attributes as one’s self-image i.e., an
individual’s deep emotional or psychological sense of sexual identity and character which is
not restricted to the binary sense of male and female but can lie on a broad spectrum7.

5
Asmita Sahay - et al., NAZ FOUNDATION VS. GOVERNMENT OF NCT OF DELHI & ORS. LAW TIMES JOURNAL
(2019), http://lawtimesjournal.in/naz-foundation-vs-government-of-nct-of-delhi-ors/ (last visited Feb 12, 2021).

6
Chennabasaveshwar, SECTION 377 VERDICT: KNOW ABOUT SURESH KUMAR KOUSHAL VS. NAZ FOUNDATION
HTTPS://WWW.ONEINDIA.COM (2018), https://www.oneindia.com/india/section-377-verdict-know-about-suresh-kumar-
koushal-vs-naz-foundation-2770379.html (last visited Feb 11, 2021).

7
NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA - South Asian Translaw Database -
THIRD GENDER, SOUTH ASIAN TRANSLAW DATABASE (2020), https://translaw.clpr.org.in/case-law/nalsa-third-gender-
identity/ (last visited Feb 11, 2021).

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K.S. Puttaswamy v Union of India (2017)

In this case, the court recognised that although there have been cases of misuse of Section
377 against the LGBT+ community putting their privacy and integrity at stake on the pretext
of blackmailing, harassing or torture, and in general. Justice Chandrachud observed that
sexual orientation also falls within the wide ambit of right to privacy. Puttaswamy decision
notes also registered the criticism about minimis hypothesis principle used in the Koushal
judgement and stated that the minuscule population of LGBT+ cannot be the ground to
deprive them of the basic fundamental right8.

Navtej Singh Johar V. Union of India

The Court finally gave its verdict on 6th September 2018 that Section 377 is unconstitutional
as it infringes the fundamental rights of intimacy, autonomy and identity. and decriminalised
homosexuality by reading down Section 377 to exclude consensual intercourse between
adults of the same sex/gender. The Supreme court also directed the government to create
public awareness regarding LGBT rights and to eliminate the stigma surrounding the LGBT
people. The judges further elaborated upon the issues surrounding mental health, dignity,
privacy, right to self-determination and transgenders9.

8
Supreme Court Observer -, SCOBSERVER,
https://www.scobserver.in/court-case/fundamental-right-to-privacy (last visited Feb 11,
2021).
9
Diganth Raj Sehgal, CASE COMMENT ON NAVTEJ SINGH JOHAR V. UNION OF INDIA
IPLEADERS (2019), https://blog.ipleaders.in/case-comment-navtej-singh-johar-v-union-india/
(last visited Feb 11, 2021).

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Chapter 2
The Discrimination faced by the lgbtq community at workplace

At present, even after decriminalizing homosexuality, the LGBTIQ+ community of India lag
behind as compared to other countries when it comes to the protection of employment and
providing them equal pay. There exists a lot of systemic bias against the job seekers of this
community. The current situation of pandemic and economic slowdown, has made it worse
for the community as they are the first targeted people when it comes to dismissal from
employment. India lacks in providing specific safeguards to the people of the community in
terms of employment.

The legislations providing protection against Discrimination

Article 7 of the Universal Declaration of Human Rights (UDHR) states that “all are equal
before the law and entitled to equal protection without discrimination”. Article 23(1) of the
UDHR further contemplates protection against unemployment, by recognising the rights to
work, free choice of employment, and just and favourable conditions of work, along with the
protection against unemployment. 

Resolution 32/2 of the Human Rights Council, which was adopted on 30 June 2016,
specifically provides for “protection against discrimination based on sexual orientation and
gender identity”.

In addition, article 2 of the International Labour Organisation’s Discrimination (Employment

and Occupation) Convention, 1958 promotes equality of opportunity and treatment in respect
of employment and occupation, with a view to eliminating any discrimination in respect
thereof through a national policy.

A recent development for LGBTQ+ labour rights took place in the United States, when the
US Supreme Court held that employees cannot be fired on the basis of their sexual
orientation or gender identity in the Boston v. Clayton County case. It also held that the
prohibition of discrimination on the basis of sex includes the prohibition of discrimination
against transgender and homosexual people under Title VII of the Civil Rights Act, 196410. 

10
Because of 'Sex': The US and India on Workplace Discrimination Against LGBTQI
Persons, THE WIRE, https://thewire.in/law/india-us-supreme-courts-lgbtqi-workplace-
discrimination (last visited Feb 11, 2021).
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The Protection of Civil Rights Act 1955 of India is provides protection from discrimination
only against untouchability (caste-system) and disability. Article 14 of the Indian
Constitution requires equal protection of all citizens before the law. Further, Article
15 prevents the state from discriminating on the ground of sex, religion, race, caste, or place
of birth. Moreover, Article 19(1)(a) provides for freedom of speech and expression, the
Supreme Court has given wider interpretation to the word “expression” and has included
sexual orientation in the same. Lastly, Article 21 which talks about protection of life and
personal liberty, over the years has been interpreted in a way that now it includes the Right to
Privacy, right to live with Dignity and Right to Autonomy and hence this article protects the
LGBTIQ+ community in various aspects.

These constitutional provisions rainbow washes the reality and makes it appear that India has
a great shield of frameworks to protect the LGBTIQ+ community. These rights can only be
enforced against the state, its instrumentalities, and only against those private entities which
are performing state actions. In the era of privatization where most of the employment in the
country is provided by the private sector, the country doesn’t have any regulation to protect
the LGBTIQ+ community in these entities. Currently, India only has a statue regarding
Transgender people; the latest framework is the Transgender Persons (Protection of Rights)
Act, 2019 which in its various sections provides certain employment relating safeguards to
the Transgender people. Although it is a progressive approach by Indian Legislation to
introduce such an act yet it is not a well-framed document and is subject to a lot of criticism.

The Trans persons (Protection of Rights) Bill, 2019

This bill was expected to bring relief and provision for safety and acceptance of the
transgender community in the society but it failed to do so. This bill failed to address existing
ground realities. First and foremost Chapter III of the bill talks about the certification of the
transgender people that means the people of this community have to get the approval of the
government for keeping their identity which in itself is discriminatory. Secondly, Section 3
and 9 of this bill even though established no discrimination policy in the workplace yet there
is no imposition of a penalty for non-compliance of the same. This breaches the principle of
‘Ubi jus ibi remedium’ which means where there is a right there is a remedy. The non-
imposition of sanctions in case of discrimination makes it a theoretical right and does not

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help to make the situation better. Thirdly, Section 18 of the act creates a disparity in
penalizing the crime of sexual abuse against transgender people. This act only imposes a
punishment maximum of two years of imprisonment for sexual abuse against transgender
people. On the other hand, a much higher degree of punishment exists for a similar crime
against cisgender people. Lastly, this bill failed to provide any reservation to the people of
this community even after the direction of the apex court in the National Legal Service
Authority (NALSA) v. Union of India11.

The Indian judiciary always comes to the rescue of its citizen by giving broad interpretations
to the existing regimes like in the case of a college professor of Aligarh Muslim University
named Dr. Shrinivas Ramchandra Siras was suspended majorly because of his sexual
orientation and was found to be indulged in sexual intercourse with the male partner in his
residential quarter and this incident lead to his suspension on the ground of indulging in
“immoral sexual activity in contravention of basic moral ethics.” The court held that an
adult’s sexual preference does not amount to misconduct and also held that the privacy of the
person should be protected and termination or suspension of employment is not applicable
until the misconduct of a person has actual reason to his employment.

Conclusion

11
Sasha R, TRANS BILL 2019: WHY INDIA'S TRANSGENDER COMMUNITY IS OPPOSING A BILL
WHICH IS SUPPOSED TO PROTECT THEIR RIGHTS YOURSTORY.COM (2019),
https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-
rights (last visited Feb 11, 2021).

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Even after the repeated requests of the Judiciary, there are still no specific laws or
amendments to the existing laws for the protection of LGBTIQ+ community members in the
employment sector. Thereby these judgments clarify the stance of the judiciary in India and
show that the suspension or termination of service based on sexual preference/orientation is
not appropriate and encouraged.

It is high time that India should bring in force specific regulations to protect the people of the
LGBTIQ+ community. The legislation should establish various guidelines regarding the
formation of policies pertaining to employee onboarding and offboarding. Sanctions should
be imposed on the private entities in case of inconsistency in following the clear and explicit
non- discrimination guidelines. Authors believe the discrimination emerges out of
unfamiliarity and ignorance. The old mindsets can be changed through the sharing of
experiences and meaningful interactions; hence the government should ask the entities to
have these sessions regularly to ensure the proper behaviour of co-workers with people of the
LGBTIQ+ community. The government should follow the principles of equity and provide
these people with reservations to stabilize the community. The approach of the legislation
should be to create an exhaustive document to dilute the possibility of any grey area in terms
of safeguards, impositions, and sanctions. Lastly, such changes require continuous follow-up
and it cannot be achieved through a single policy, action, or reaction.

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BIBLIOGRAPHY

www.feminisinindia.in

www.thehindu.com

www.blog.ipleaders.in

www.indianexpress.com

www.livemint.com

www.thequint.com

www.indiankanoon.org

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