The Allahabad High Court on Monday ordered protection to a homosexual couple from Uttar Pradesh who have been allegedly facing harassment and resistance from their respective family members and society. In Sultana Mirza and anr vs State of Uttar Pradesh and Ors (WP [Civ.] No. 17394 of 2020), Dhirendra Kumar Srivastava and Mohammad Naushad appeared for the petitioners and Chief Standing Counsel represented the respondent State.
The Bench of Justices Shashi Kant Gupta and Pankaj Bhatia said that, “”The petition highlights the stark reality of the society where the citizens are 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.”
Referring to the Supreme Court’s landmark judgment in Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1, the Allahabad Bench reiterated some principles already laid down in the 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
The right to love and to a partner, to find fulfilment 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 fulfilment to same-sex relationships.
It emphasized that even the Supreme Court had observed that Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Hence, it noted “Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power.
“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.”, the court added.
The Division Bench was hearing a writ petition filed by a same sex couple who claimed that they have been in a live-in-relationship since a couple of years and are voluntarily living with each other on account of their sexual orientation. But they have faced resistance at the hands of family members as well as the immediate society, as a result of which the petitioners apprehend threat to their life and enjoyment of their relationship.
Considering the facts and circumstances of the case, on November 2 the Court directed the Superintendent of Police, Shamli to extend suitable protection to the Petitioners and ensure that no harassment is caused to them.
SabrangIndia had also reported on the protection offered to a lesbian couple by the Punjab High Court through Justice Monga in July this year who said that, “the petitioners are entitled to protection of their lives and liberty as envisaged under Article 21 of the Constitution of India, regardless of the nature of relationship between them. Assuming, they were living simply as friends together, even then they are constitutionally entitled to live in peace. Legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty.”
Contradictory Order by the Allahabad HC
In a case of similar facts but dissimilar results, the Bench of Justices Pankaj Mithal and Justice Ravindra Nath Kakkar had refused protection to a couple (a homosexual and transgender) in October 2018 who alleged harassment at the hands of their relatives. In Gulfam Malik and ors vs State of Uttar Pradesh and anr (WP [Civ.] No. 32683 of 2018), it was observed that, “The problem which has been raised in this petition is of a social nature between the individuals for which there is no cure in law. It is a in house problem which has to be resolved by the members of the family or its solution has to be found by the society. The Welfare State has to maintain law and order situation and has to provide security to the public at large in general but it does not mean that it is obliged to provide guards to each and every person individually. It is not even possible.”
The Delhi High Court is presently presented with a petition filed on behalf of activists and members of the LGBTQ community seeking legalisation of same sex marriage under the Hindu Marriage Act, 1955.
The Allahabad High Court order dated November 2, 2020 may be read here: