LGBTQ & Rights in India: A Legal Revisit | By Shubhi Shukla

LGBTQ is an acronym for Lesbian, Gay, Bisexual, Transgender, and Queer people. All around the world, these people have been subjected to discrimination and hatred on the grounds of who they are and whom they love. LGBTQ people in India also are subjected to torture, blackmail, imprisonment, and fear of expressing themselves and much more just for being who they are.  The Indian Penal Code, 1860 under Section 377 deals with unnatural offenses. Before declaring this part of Section 377 unconstitutional in 2018, homosexuality was considered unnatural, and having sexual intercourse with the same-sex was a crime punishable with 10 years of imprisonment. After a long fight for the rights of queer people, this was decriminalized on 6^th September 2018, and consensual gay sex was legalized.

Source: livemint.com

People often confuse a person’s sexuality in defining their character and gender. No matter what a person’s sexual orientation is, he or she is entitled to his or her rights. When LGBTQ people talk about their rights, they do not demand special rights for their sexual orientation, but simply basic human rights entitled to everybody on account of being human, irrespective of their gender or sexual orientation. The LGBTQ Community is one of the most vulnerable groups in the world, and they are exposed to emotional, psychological, social, and professional discrimination every day. They have been deprived of basic human rights such as the right to life, right to health, right to privacy, and much more given their sexual identities.

Although homosexuality has been legalized, there is still a long way ahead to true freedom. Homosexual people are still severely discriminated against, subjected to hatred and society invalidates their existence by labeling it a shame. The struggle to be accepted by society and to be given equal opportunities and protection by the law continues.

HISTORICAL BACKGROUND OF LGBTQ STRUGGLE IN INDIA

The historical mention of homosexuality, Transgender, Queer people in India dates long back and can be understood from the Puranas, Vedas, Religious books, etc. The major religions of the nation such as Hinduism and Islam always opposed homosexuality and preached that love is only possible between two opposite genders i.e. a man and a woman, and it is believed in Hinduism that sex between two men and two women is born out of lust and not love, which is improper. In Islam, the Muslim Shariat law considers homosexuality a grave crime.

A depiction of homosexuality and the sexual tension between members of the same sex can be seen through pictures and paintings on temple walls, ancient books, statutes  and ancient texts. This was considered unnatural. But there is no such solid evidence to prove that a sense of homophobia was prevalent in society.

Homophobia was introduced in the Indian society much later in the late 18^th century when the British enforced and enacted section 377 of the Indian Penal Code, which termed sex between two men and two women as unnatural lust and criminalized it. Since then, even long after the Britishers left and India became independent; this law remained valid until 2018 when the Supreme Court of India decriminalized it.

After Independence, many non-governmental organizations started filing petitions against Section 377 of the Indian Penal Code as it was discriminatory, and was against consensual gay sex. They argued that it violated homosexual people’s human rights. It took almost 71 years for the LGBTQ community to decriminalize their right to love and be loved.

LEGAL ASPECT OF LGBTQ

The scrapping of Section 377 of the Indian Penal Code, 1860

Section 377 of the Indian Penal Code was enacted by the British Raj in 1860. It states that “Whoever voluntarily has carnal intercourse against the order of nature with any man; woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to the fine[1].” This was a colonial-era section that criminalized gay sex; it was derived from a 16^th-century law, known as the Buggery Act.

The first step towards the legal freedom of the LGBTQ community in India was the decriminalization of this discriminatory law that criminalized consensual gay sex. The historic judgment by the Supreme Court of India on 6^th September 2018 decriminalized homosexuality in India and gave freedom to the LGBTQ community of the nation. The struggle and discrimination of long dark years finally came to an end. While pronouncing the historic judgment the then Chief justice of India Deepak Misra said that the law was arbitrary, irrational, and indefensible. [2]

It must be noted that only the part of Section 377 that criminalized consensual gay sex has been scraped off and unnatural lust i.e. inter-course between a man and an animal remains a punishable offense.

The Transgender Persons (Protection of Rights) Bill, 2019

A year after Section 377 of the Indian Penal Code 1860 was decriminalized, the Indian Parliament passed a bill to safeguard the interests of Transgender people and provide more freedom and legal backing to the LGBTQ community of the country. It passed the Transgender Persons (Protection of Rights) Bill, 2019 that forbids the discrimination of Transgender people against any subject related to education, employment, the ability to rent or buy a property. The bill has primarily two provisions for safeguarding the interests of the transgender people, firstly, it necessitates a person recognized as a transgender to apply for a “Transgender Certificate” from the District Magistrate of their respective residence. This is also applied to people of self-declared identity.

Secondly, the respective holder of the said certificate can apply for a “change in gender certificate,” which motions the authorities to change their legal gender to either male or female with a proof of medical surgery, issued by a licensed hospital office.

The Bill goes against the very notion for which it was designed, and instead of safeguarding the interests of transgender people, it makes it even harder for them to identify with their gender orientation. It also violates the Supreme Court judgment of Nalsa v. UOI[3], which held that transgender people belonging to the third gender are equally entitled to enjoy all fundamental rights irrespective of their gender orientation. The bill received mass criticism not just from the transgender community of the nation but from all over the world as it opposes the international standards of gender recognition such as the UN High Commissioner for Human Rights, World Professional Association for Transgender Health, and the Asia-Pacific Transgender Network. The transgender community has outrightly rejected the bill.

The Impact of decriminalizing homosexuality

The impact of decriminalizing homosexuality on the nation varied widely. The country roared with joy and celebrated the decriminalization all across India with pride parades. Although it gave the much-fought freedom to the LGBTQ community, it still has a long way to go. The stigma of homosexuality still prevails in society, and there are still no laws that protect the LGBTQ community from discrimination. However, one cannot deny the courage and legal freedom that is provided to the LGBTQ people. At the same time increasing their self-acceptance and confidence in society through education and counseling. It entitles them to their legal and fundamental rights such as the Right to Health and Right to Privacy which they were previously denied.

• Right to Health: Under Article 21 of the Constitution of India, all the citizens’ right to life becomes meaningless unless complemented by their right to health. The LGBTQ community was discriminated against here and denied medical facilities. Consequently, their mental health and dignity were played with. The law also created social obstacles to their access to healthcare from getting tested for sexually transmitted diseases such as HIV/AIDS.

• Right to Privacy: The law violated the right to privacy of a person by questioning and criminalizing the choice of the sexuality of an individual. Justice Chandrachud observed that “In conceptualizing the right to sexual privacy, it is important to consider how the delineation of ‘public’ and ‘private’ spaces affects the lives of the LGBTQ community.” A free adult must have the right to choose their sexual orientation and his or her decision to disclose it; this can only be guaranteed by the right to privacy.

Challenges faced by the LGBTQ Community even after homosexuality was decriminalized

As it is rightfully said by Barbara Gittings- “Equality means more than passing laws. The struggle is really won in the hearts and minds of the community, where it really counts.”  Even after homosexuality has been decriminalized, there is a long road ahead to true freedom. The LGBTQ community still faces major challenges in their everyday lives that need to be overcome lawfully. People still consider homosexuality a stigma and the society stands against them and their identities, disregarding their existence.

The LGBTQ community, even after being legalized, faces many challenges, they are still deprived of some of their rights such as same-sex marriages, gay couples legally adopting or surrogating, they still cannot join the military services and serve their nation in the army, and their conversion therapy is still not a crime in India.

These challenges are yet to be overcome by the LGBTQ Community of the nation.

CASE LAWS

The relevant case laws that challenged and changed the legal framework of Section 377 of the Indian Penal Code, 1860, are given below:

Naz Foundation v. Govt of NCT of Delhi: In Naz Foundation vs Govt of NCT of Delhi (2009), the Delhi High Court held that Section 377 of the Indian Penal Code imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. And further stated that it was a direct violation of the basic fundamental rights protected under Articles 14, 15, 19, and 21 of the Indian Constitution.

Suresh Kumar Koushal v. Naz Foundation: In this case, the Supreme Court on 11th December 2013 overturned the judgment of the Delhi High Court, and re-criminalized homosexuality. With a bench of Justice GS Singhvi and Justice SJ Mukhopadhaya, the Court held that “LGBTQ+ persons constituted a ‘minuscule minority’ and therefore did not deserve constitutional protection and further observed that Section 377 of the Indian Penal Code did not suffer from the vice of unconstitutionality”. Although this case was a defeat for the LGBTQ community, yet it served as a silver lining as it rekindled a new wave of activism in India and the fight for the LGBTQ rights reached a record high.

Navtej Singh Johar v. Union of India: This was the historic case that changed the legal framework of LGBTQ in India. On 6^th September 2018, the Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, that criminalized ‘carnal intercourse against the order of nature’, was unconstitutional and was violative of the right to equality by criminalizing consensual sex between adults in private. It decriminalized section 377 of the Indian Penal Code and made consensual gay sex legal.

CONCLUSION

We have come a long way, the LGBTQ community now has the confidence and power to come out openly and celebrate their identities. A person’s personal choice of partner and sexual orientation should not be restricted or governed by other people; they have fought a long battle and won the right to love and to be loved. But the struggle has not ended yet, there is still a long way to go, a long journey towards true freedom, acceptance, and a society where no one will be discriminated against based on who they are or who they choose to love.

We as a nation need to stand up against practices such as conversion therapy or we will keep on losing more people like Anjana Harish, the 21-year-old queer girl from Kerala who died by suicide because she was forced to conversion therapy by her family [4].

The decriminalization has helped the community to accept themselves and give them legal support, but we still need an anti-discriminatory law to protect the community from discrimination and exploitation to help the LGBTQ people live a normal life.

REFERENCES

[1]https://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code#:~:text=Section%20377%20of%20the%20Indian%20Penal%20Code%20is,sexual%20activities%20%22against%20the%20order%20of%20nature%22%20illegal.

[2]https://www.ndtv.com/india-news/top-5-quotes-of-chief-justice-dipak-misra-on-scrapping-section-377-1912474

[3] https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/

[4]https://www.thehindu.com/society/it-is-dangerous-and-unethical-but-queer-people-continue-to-be-subjected-to-conversion-therapy/article31922458.ece#!

 

*Author is a First-year student of B.A.LL.B(Hons) at Law School, BHU