Legal journey of LGBTQ+ community in India: An overview of laws and ongoing discourse
Author: Krishna Shroff, a student of GLS University
The evolution of the LGBTQ+ community in India is a dynamic process that involves legal, social, cultural, and economic dimensions. It was on 6th September 2018 when Supreme Court of India decriminalised homosexuality. The LGBTQ+ community were beaming with joy as the bench nominated the part in Section 377 which criminalised unnatural sex as “irrational, indefensible and manifestly arbitrary.”
Striking down the 1861 colonial law gave the country a new direction to move forward in terms of the protection of the LGBTQ community. This law remained in force for 200 years which was removed by a five judge bench in 2018.
The value and significance of the whole judgement can be summarised in the light of the statement made by Justice Indu Malhotra 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”.
As major as this judgement was this was only the first step towards the long road in guarding and securing the equivalency rights of LGBTQ community. Repealing of this social law was only the tip of the iceberg and the LGBTQ community has a long way to go. The Indian judiciary took 2 decades to repeal this law which affected numerous people- individualities and their daily life. Menaka Guruswamy had asked the bench, “How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is a love that must be constitutionally recognized and not just sexual acts”. In 2018, because of the historic judgment, love was constitutionally recognized but it was just the beginning of the challenge-filled long road in achieving legal rights for the LGBTQ+ community.
Evolution of LGBTQ Community in India:
Hinduism has depicted various positive artistic-cultural expressions in respect to the LGBTQ+ people. Numerous artworks, oils, puppets and stories depict the actuality of the LGBTQ+ community in the ancient period. Numerous erogenous artworks are carved in the mediaeval period, a fine example of which is Khajuraho temple located in Madhya Pradesh.
With Mughal and British rulers, the laws got stricter, and people were faced with stricter laws including death penalaties. Mughals with their strict religion saw homosexuality as a sin. Although numerous Muslim poets through their artwork showed examples of celebrations of male homoeroticism. Section 377 was criminalised in the pre-independence period by the British rulers. Same- sex relations were considered illegal, and heavy punishments and banishments were implied on them. It became a reason to kill the people and exploit them.
In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a garden and detained many men on the assumption of them being homosexuals. After the Lucknow incident, an NGO, Naz Foundation, along with Attorneys Collaborative, went ahead and filed a petition before the Delhi High Court in 2001 challenging the indigenous validity of Section 377 of IPC.
The petition argued that Section 377 of IPC violated the fundamental right to privacy and dignity, right to health, right to equivalency and freedom of expression. It was also submitted that the law undermined the public health awareness that aimed at reducing the threat of transmission of HIV/ AIDS, as the fear of prosecution under the Section prevented people from talking openly about sexuality and lifestyle
Eventually, in 2009 in the case of the Naz Foundation Govt.v. NCT of Delhi, the High Court of Delhi held that Section 377 of IPC assessed an unreasonable restriction over two grown-ups engaging in consensual intercourse in private. Therefore, it was in direct violation of their introductory fundamental rights given under Article 21 of the Indian Constitution.
The Supreme Court reversed the judgement in 2013 in the Suresh Koushal case and stated that the power to decriminalise the composition was with the parliament and not with the court. Numerous petitions were filed challenging the judgement and latterly in 2018 the Supreme Court formed a constitution bench to discuss the challenges in the section 377. On September 6th 2018 the court partially struck down section 377 decriminalising same-sex relations between consenting adults.
Legal dialogues encompassing same sex marriage:
Same-sex marriages mean marital relations between two people of the same gender. It is again believed that this is a western concept and people of India are influenced by it. But this is nothing but far from the truth however several accounts paint a different picture. Same-sex relations have been existing in ancient India. Homosexuality has always been rooted in Indian history; it was homophobia that was brought by the western world and Britishers. Many instances in Ramayana and Mahabharata show that homosexuality was existent without any restrictions. In a tale of Ramayana there was a king named Dilip who had two wives and after his death lord Shiva told them to make love with each other to have a child, they did and were blessed with a boy who later became a king.
Many countries such as Switzerland, Austria, Taiwan etc have legalised same sex marriage. On February 15th 2024 Greece legalised same-sex marriage.
Supriyo v Union of India was a landmark case where two same –sex couples filed writ petition in the Supreme Court seeking legal recognition of same- sex marriages in India. The petition was filed on November 14th 2022 in Supreme Court of India. The arguments were centred on the constitutionality of the Special Marriage Act, 1954(the Act). The pleaders argue that Section 4(c) of the Act recognises marriage only between a ‘male’ and a ‘female ’. This discriminates against same- sex couples by denying them matrimonial benefits such as adoption, surrogacy, employment and retirement benefits. The pleaders asked the Court to declare Section 4(c) of the Act unconstitutional. The pleaders argue that the non-recognition of same- sex marriage violates the rights to equality, freedom of expression and dignity. They relied on NALSA vs. Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) which recognised non-binary gender individualities and guaranteed equal rights to homosexual persons.
On 17 October 2023, the Supreme Court ruled unanimously that the legalization of same- sex marriage is a matter for the Parliament to decide, not the courts. In a 3 – 2 decisions, it ruled against ordering the government to introduce civil unions, and in a separate 3- 2 decisions, ruled against ordering the government to allow adoption by same-sex couples. Still, the court unanimously accepted the government suggestion that it sets up a high- powered commission headed by the Cabinet Secretary to investigate the discrimination faced by LGBTQ+ people, and study the provisions providing limited legal rights and benefits to same- sex couples, including access to joint bank accounts, recognition as next-of-kin, medical decisions for a hospitalized partner, prison visitations, and succession rights. Chief Justice Chandrachud wrote that the court couldn’t declare the SMA unconstitutional because this would bar interfaith and inter-caste marriages, and argued that reading same-sex couples into the Act would violate the separation of powers
Viewpoint:
LGBTQ+ community faces discrimination and violence in their daily lives. Government denying to legalise their existence and giving them their rights goes against the constitution of India and fundamental rights. The Supreme Court, with this decision, denied them marriage, civil unions and adoption rights. All these rights are given to the heterosexual individualities. This discrimination to a large community shows that India still has a long way to go to achieve equivalency rights for all.
Conclusion:
In conclusion, the evolution of the LGBTQ discourse in India has been a remarkable trip marked by significant strides towards acceptance, visibility, and legal recognition. Over the times, there has been a gradual shift in societal stance, with a growing mindfulness and understanding of different sexual exposures and gender individualities. The decriminalization of Section 377 in 2018 was a major corner, furnishing a legal frame that acknowledges the rights of individualities regardless of their sexual exposure. While progress has been made, challenges persist, and the trip towards complete equivalency. Discrimination, stigma, and societal prejudices persist, challenging ongoing efforts in education and advocacy.
The LGBTQ community in India has shown adaptability, courage, and determination in demanding their rights amidst gruelling societal morals. As the community becomes increasingly visible and vocal, it fosters a sense of empowerment among its members, inspiring positive changes in various sectors of society. Grassroot movements, pride events, and supportive allies contribute to building a more inclusive nation. The evolution of the LGBTQ+ community in India is a dynamic process that involves legal, social, cultural, and economic dimensions.
In the coming times, it’s pivotal to build upon the foundations laid by the achievements, and work towards comprehensive legal protections, inclusive programs, and societal acceptance. The evolution of the LGBTQ+ community in India reflects not only the changing geography of human rights, but also the collective strength of individualities and the unwavering pursuit of a more just and equitable society for all.
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