By RIDDHIMA GROVER, student of Bharti Vidyapeeth institute of management and research
ABSTRACT
This research paper takes a look at how the civil rights regarding the LGBTQ+ community have progressed in India, from ancient times to the current situation. The study focuses on notable legal landmarks, especially the decriminalization of homosexuality in 2018 and the recognition of transgender rights in 2014. The paper also examines the difficult situations that LGBTQ+ people meet, for example, the lack of legal recognition of same-sex relationships and the fight for marriage equality. The paper comes to an end by taking a look at the current legal status of LGBTQ+ rights in India and highlights the prospects for full equality and acceptance in the future. The studies demonstrate the endurance of the LGBTQ+ community as they still struggle for their equality.
INTRODUCTION
History of Recognition of LGBTQIA+ In India:
1. Ancient India: Ancient Indian society was known for accepting and celebrating all forms of love. This can be seen in Indian religious books that contain homosexual characters and themes in their texts, which are neutral to the idea of homosexuality. The Rigveda contains the expression” Vikriti Evam Prakriti” meaning what seems unnatural is also natural. The Kama Sutra mentions that lesbians were called” Swarinis”, who frequently married each other and raised children together. The Khajuraho tabernacle of Madhya Pradesh, erected in the 12th century, is known for its overt erogenous puppets showcasing the actuality of sexual fluidity between homosexuals.
2. Medieval Times: During medieval times, there was some disapproval of homosexuality but LGBT people were not ostracised. Society was tolerant of them and no one was persecuted for a different sexual preference.
3. Colonial Era: In 1861, after the arrival of Britishers, sexual activities “against the order of nature” including all homosexual activities were criminalized under section 377 of the Indian Penal Code. This was mainly influenced by the Catholic Church’s belief that a sexual act unrelated to procreation is sinful.
- Post-Independence: In 1977, Shakuntala Devi published the first study of homosexuality in India, called “The World of Homosexuals”. It called for “complete acceptance and not tolerance and sympathy”.In 1981, the first All India Hijrah Conference was held in Agra and was attended by 50,000 members from all over the country. In 1994, Hijras were legally given the right to vote as a third gender.
CURRENT LEGAL STATUS
- Decriminalization of Homosexuality: The decision by the Supreme Court of India in 2018, nullifying Section 377, a provision that had criminalized “against the norm” sexual intercourse, was marked with some sentiments of relief among individuals in the LGBTQ+ community. The case had 5 constitutional grounds of which the court considered the five to be freedom of expression, privacy, and that equality, human dignity, and anti-discrimination cases to be violated.
2. Recognition of Transgender Rights: Per the Transgender Persons (Protection of Rights) Act, 2019, one can identify one’s gender from one’s perspective without any other bindings. The provision of identification papers to transgenders is done under the condition and confirmation of a doctor competent enough for a relevant purpose for either their gender to be represented as a female or as a male in the document. Next, is Non-gender, meaning people who choose to join the list of Transgender with Janaa Aadhaar central registry.
3. Cohabitation Rights: Just like cohabiting heterosexual couples, same-sex couples can have many similar rights to legally share a domestic relationship. So, people call the de facto relationships while talking about that as a community.
However, there are still areas where LGBTQ+ rights are not fully recognized in India: On the other side, the current scenario is not fully bright for an all-round acceptance of sexuality in India.
Same-Sex Marriage: India is not ready for the legal system of same-sex marriages or civil unions and has not so far granted those partners the opportunity to take advantage of any partnership certificates. In October 2023, the Supreme Court of India took many cases of marriages between homosexuals in refused to register or give any legal status to those marriages.
Adoption: All gender couples would be tightly restricted in their adoption capacities while LGBTQ+ individuals could go through this process.
Military Service: To be blunt and direct, the half-homosexual and unblessed folks are still not welcome in the military context.
CHALLENGES FACED BY LGBTQ IN INDIA
1. Decriminalization of Homosexuality: The decision by the Supreme Court of India in 2018, nullifying Section 377, a provision that had criminalized “against the norm” sexual intercourse, was marked with some sentiments of relief among many individuals within the LGBTQ+ community. The case had 5 constitutional grounds of which the court considered the five to be freedom of expression, privacy, equality, human dignity, and also anti-discrimination cases to be violated.
2. Recognition of Transgender Rights: As per the Transgender Persons (Protection of their Rights) Act, 2019, one can identify one’s gender from one’s perspective without any other bindings. The provision of identification papers to the transgenders is done under the condition and also confirmation of a doctor competent enough for a relevant purpose for either their gender to be represented as a female or as a male in the document. Next, is Non-gender, meaning people who choose to join the list of Transgender with Janaa Aadhaar central registry.
3. Cohabitation Rights: Just like cohabiting heterosexual couples, same-sex couples can also have many of the similar rights to legally share a domestic relationship. So, people call the de facto relationships while talking about that as a community.
However, there are still areas where LGBTQ+ rights are not fully recognized in India: On the other side, the current scenario is not fully bright for an all-round acceptance of sexuality in India.
Same-Sex Marriage: India is not ready for the legal system of same-sex marriages or civil unions and has not so far granted those partners the opportunity to take advantage of any partnership certificates. In October 2023, the Supreme Court of India took many cases of marriages between homosexuals who refused to be registered or any legal status to those marriages.
Adoption: All gender couples would be tightly restricted in their adoption capacities while the LGBTQ+ individual could go through this process.
Military Service: To be blunt and direct, the half-homosexual and unblessed folks are still not welcome in the military context.
LEGALIZING THE LGBT MARRIAGE GLOBALLY AND IN INDIA
Same-sex marital law is legalized in many countries, especially in the USA. And by 2024, there was 13% marriage between same-sex couples formally and in 35 countries which totals to 1.3 billion people (1 so wealth the world’s population). The list, however, is long and is composed of the independent countries in Europe, the Americas, and some of Asia.
The legalization methods mainly differ between the countries. Some countries have legalized alliances between people of different genders throughout the country through the legislature, while others have legalized it through court rulings. Similarly, Australia, Ireland, and Switzerland sometimes finally legalized same-sex marriage by voting for legislation only following a national vote.
In India, the existence of or legal status of same-sex marriage is not at present recognized. Even though the prohibition of homosexual attitudes was lifted in 2018, gay-related relationships do not still have the same privileges as heterosexual pairs. On 10th October 2023, the apex court denied the application for legalization of same-sex unions in India. The word of the court is that it exceeds its scope to so do and the parliament is the other day’s audience. While the court came down against the discrimination of queer relationships by the state, it also made a stand in favor of that separate victories in the best interests of society.
Same-sex relationships are apparently, facing these legal obstacles but there is also a wide acceptance of homosexual relationships in India today. About three of every four Indians surveyed in 2019 expressed support for them. The fight for the recognition of people as equal and thus acceptance is a persistent struggle.
CASE LAWS
- Naz Foundation vs Government of NCT of Delhi (2009)
The case of Naz Foundation vs Government of NCT of Delhi (2009) is a landmark judgment in the history of LGBTQ+ rights in India.
Date: The judgment became a reality for me as the 2nd of July 2009 was the day when it was pronounced.
Court: The hearings in the Delhi High Court took place.
Judges: The court which consisted of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar was seated on a bench.
Petitioner: The petitioner reached the said court as the Naz Foundation a non-governmental organization.
Respondents: Respondents covered by the identities – State of NCT of Delhi and others etc.
The Naz Foundation, under the name of the Naz Foundation, went into court and challenged to annul Section 377 of the IPC which makes “unnatural offenses” crimes. The institute alleged that the law goes against the constitutional rights and freedom of the LGBTQ+ population.
Delhi court stated that depicting such consensual sexual relationships among grown-up people as a crime violates those fundamental rights that are guaranteed by the Indian Constitution. Section 377 of the IPC was held to be violative of non-discrimination human rights, to the extent it penalized consenting carnal intimacies performed behind closed doors.
This verdict thus proves that minimizing the criminalization of homosexuality in India still remains a possibility. <No tags><No tags><No tags> Unlike that, it was set aside by the Supreme Court of India in the case of Suresh Kumar Koushal Vs. Naz Foundation in 2013 but Section 377 was not constitutionally struck down by the court. On the other hand, the Supreme Court gave back the criminality of homosexuality in 1974 in the case of Susan Hicks vs. Union of India, it eventually decriminalized the same behavior in 2018 in the Navtej Singh Johar vs Union of India.
- The Navtej Singh Johar vs Union of India (2018)
The Navtej Singh Johar vs Union of India (2018) judgment is a record-breaking decision having landed at the vanguard of the realm of LGBTQ+ rights in India.
Here are the key details: Here are the key details:
Date: It was on September 6, 2018, that the verdict had been pronounced.
Court: The matter went all the way to the Supreme Court of India.
Judges: The bench was constituted by the Chief Justice of India, Dipak Misra, and also other Justices A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud, and Indu Malhotra.
Petitioner: The petitioner was distinguished as the film Navtej Singh Johar, a man who dealt in the dancing from the LGBTQ+ community.
Respondents: On the other hand, the respondents wrote through the Secretary of the Ministry of Law and Justice of the Union of India.
Navtej being with others 4, approached the court and placed a claim to inquire about the constitutionality of Section 377 of the Indian Penal Code, which prohibits consensual sex in private amongst the adults of the same category. They went for the implantation of the “right to sexuality”, “right to sexual autonomy”, and “right to choose one’s sexual partner” in Article 21 of the Indian Constitution, which gives the ‘Right to Life with Human Dignity’. They swear to abolish the Sec. 377 provisions of the IPC certainly.
The apex court of the country settled the matter in favor of the petitioners by throwing out the prohibition of homosexuality in the country. The court affirmed this together with it making it unconstitutional that Section 377 of the IPC has criminalized consensual sexual activities between adults in private. This decision was a landmark judgment in that it brought forward the many nonexistent praises of the LGBTQ+ community of India.
The 1993 National Legal Services Authority (NALSA) vs The Union Of India
The 1993 National Legal Services Authority (NALSA) vs The Union Of India case was a transgender rights landmark verdict in Indian history.
Here are the key details: Here are the key details:
Date: And it was on this day, April 15, 2014, that the court handed down the judgment.
Court: The solicitor general appointed to defend the government’s case was a deterrent.
Judges: The bench consisted of justices of his honor, K.S. Radhakrishnan and A.K. Sikri.
Petitioner: The National Legal Services Authority, an independent authority formed under the Legal Services Authority Act, of 1997, was the concerner.
Respondents: The parties joined in the case were the Union of India and another.
The National Legal Services Authority intervened in the court on behalf of the transgender community by filing a writ petition to advocate for their legal rights. This petition requested juristic recognition of gender identity that existed other than the one assigned at their birthing time. The Opposition proclaims that their client that are Transgender has been misrepresentated and breach Article 14 and 21 of our constitution
The Supreme Court of India passed a favorable verdict that accepted transgenders as male and female, with transgender being the 3rd gender. The court put an end to this heartless practice and restored human dignity by granting unto them every basic right available to Indians according to the Constitution. This verdict evinced more of a progressive and developing Indian society because recognition of the rights of the transgender community was a big way forward in this direction.
The Same-Sex Marriage Ruling of 2023
The Same-Sex Marriage Ruling of 2023 that was delivered in India was indeed an important occurrence in the country’s legal system. Here are the key details: Here are the key details:
Date: September 15, 2023.
Court: India’s apex Court has decided the case.
Judges: The bench comprising the Chief Justice himself, Dr Dhananjaya Y. Chandrachud, and others.
Petitioners: They were people who belonged to the LGBTQIA+ community being petitioners, as they had filed applications to recognize same-sex marriages under several acts, among them were the Special Marriage Act, 1954 (SMA 1954), the Foreign Marriage Act, 1969 (FMA 1969), and the Hindu Marriage Act, 1955 (HMA
The Sapphic Woman maintained that she was a victim of enormous abuse because family members had turned down their advances, others had threatened to beat them up, and others rarely respected and were against their same-sex relationships. They wanted to be legally allowed to marry and the slogans should be such that their relationship would be considered officially recognised by the legal body.
Even the highest court of India referred to the matter of gay people’s marriage for resolution either through legal modification or ignoring the issue altogether. Through a unanimous verdict, a bench of five judges concluded that although there is no fundamental right to marriage, nevertheless it should not be interpreted as the special marriage act of 1954 considering the same relation between queer people and queer people. The court ruled by a 3:2 point in the majority against recognizing civil unions for LGBTQIA+ people. It is believed by jurisprudence that the Constitution of India doesn’t guarantee anybody the right to marry a person they like.
This was not only a setback to the LGBTQIA+ community in their struggle for marriage equality in India, but it also provided a lot of momentum to the anti-LGBT movements and the concept of homosexuality as being abnormal. Furthermore, the struggle for full equality and complete acceptance will be continual.
CONCLUSION
In the end, an embattled yet hard trail of the LGBTQ+ rights movement in India is evidence of success and failure. From homosexuality being part of ancient belief to the for homosexuality during the colonizer age only, and from repealing of anti-homosexuality to the current fight for the right of equality, the LGBTQ+ community in India keeps on battling for recognition and the equality of rights. The above-mentioned hurdles in legal systems have led to the amendment of not only the Indian legal landscape but also the perception of an increasingly changing society towards LGBTQ+ rights. Although it is a daunting task, the gay community’s rallying cry of “Don’t give up!” seems to demonstrate a glimmer of hope for a society that is kinder, respectful, and accepting with equal consideration for everyone irrespective of sexual orientation or gender identity. With that noted, the struggle is to achieve full equality and acceptance.
REFERENCES
1. Chakrapani, V., Newman, P. A., Shunmugam, M., McLuckie, A., & Melwin, F. (2007). Structural violence against Kothi-identified men who have sex with men in Chennai, India: A qualitative investigation. AIDS Education and Prevention, 19(4), 346-364.
2. Narrain, A., & Bhan, G. (2005). Because I have a voice: Queer politics in India. Yoda Press.
3. Vanita, R., & Kidwai, S. (Eds.). (2000). Same-sex love in India: Readings from literature and history. Macmillan.
4. Shah, A. P. (2018). Navtej Singh Johar v. Union of India: India’s Leap Forward to LGBTQ Rights. Indian Law Review, 2(4), 316-326.
5. Supreme Court of India. (2014). National Legal Services Authority v. Union of India and others (Writ Petition (Civil) No. 400 of 2012).
6. Supreme Court of India. (2018). Navtej Singh Johar and others v. Union of India (Writ Petition (Criminal) No. 76 of 2016).
