Allahabad HC orders restoration of LGBT staff of U.P. Home Guards

The home guard was dismissed from service after a video of the petitioner with his same sex partner went viral.

File photo of a marching contingent of UP Home Guards commandoes. (Image for representation only)

Treating a person’s sexual orientation as an offence would be interference in the individual’s right of privacy, the Allahabad High Court noted as it directed the Uttar Pradesh Home Guards to reinstate a staff member belonging to the LGBT community whose appointment was cancelled after a video revealing the person’s sexual orientation was widely shared.

The court directed the Commandant General of Home Guards, Headquarters, Lucknow, U.P., to take the aggrieved 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 was due, the court noted.

Referring to the order dated June 11, 2019, through which the petitioner’s appointment was cancelled, the court said it was done on account of “some video of the petitioner which was made viral by someone.”

The assertion in paragraph No. 8 of the counter affidavit showed the perception of the officer, District Commandment of Home Guards, Bulandshar, who had passed the order of cancellation, the court said.

“From the reading of the order itself, it is found to be vindictive in nature,” justice Sunita Agarwal noted in an order dated February 2, while quashing the order of cancellation of the appointment of the petitioner.

The sexual orientation of the petitioner had been stated to be “indulgence in untoward activity”, which was completely in violation of the observations of the Supreme Court in Navtej Singh Johar v. Union of India reported in (2018) 10 SCC 1, the court said.

The Supreme Court in the said case held that the sexual orientation of the person was an individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned, Justice Agarwal noted.

Any display of affection among the members of the LGBT community towards their partners in public, so long as it did not amount to indecency or had the potentiality to disturb public order, could not be bogged down by majority perception, the court further said referring to the Supreme Court case.