Legal Recognition of LGBTQIA+: a Tussle between Popular Morality and Constitutional Morality

Abstract

The Apex Judicature of the nation has held the prism of human rights high ever since 2009, but the fight for social acceptance seems never-ending. The question is whether society is understanding or accepting “them” to be one of them? The rights of the non-conformists are being referred to as ‘an urban elite trend’, and their distress calls are blatantly ignored by society and even the government. The repeated recognition of their rights by the Supreme Court is hurdling a cultural revolution that society is not ready to stand. This lesser treatment to the LGBTQIA++ necessitates society and not just the protector of unpopular citizens to walk a full mile.
Right to live with dignity is a recognised fundamental right to every citizen of this nation, which guarantees enjoyment of more than the bare minimum of life. The progressive journey of Supreme Court raises a storm betwixt popular morality and constitutional morality. One hopes that the Supriyo @ Supriya Chakraborty case, questioning the established narrative of only man and woman’s association as a family unit, becomes instrumental to illuminate as to what many numbers of legislation are inclusive of the new age, if not a precursor to legislative amendments. The primary focus of the authors is to interpret the present Indian legislations to understand the support it furthers to the LGBTQIA++ community along with analysing the stance of other jurisdictions on the same. The paper advances to reveal the impact of their intersecting identities on the pre-existing lack of legal recognition and social stigma of the community notwithstanding the rights accorded by the courts. Finally, the authors make non-illusory recommendation to the deplorable discrimination, extreme abhorrence and non-inclusivity by focusing on constitutional idealism.