Author: Kanak Kumari, Symbiosis law school, Nagpur
To the Point
The juridical statue for LGBTQ + rights in India has acquired a dynamic shift in the framework of criminalization inherited from the colonial period to the constitutional guarantee of sexual self-determination and gender identity. Such development can be seen as the gradual expansion of the judicial understanding of the fundamental rights, especially the right to equality, dignity, and privacy in Articles 14, 15, 19, and 21 of the Indian Constitution. Navtej Singh Johar v. The case of Union of India (2018) and the enactment of Transgender Persons (Protection of Rights) Act, 2019 are the steps on the way to inclusive jurisprudence in India.
Abstract
The main talk of this article will be the legal history of LGBTQ + rights in India, legal statues, problems faced by them. However, despite the current misbeliefs, same-sex relations were a part of Indian society since the centuries; homophobia (and not homosexuality) was from the western colonialist influence. By doctrinal examination of the leading cases such as Navtej Singh Johar, National Legal Services Authority. This article illustrates the incremental expansion of the constitutional paradigm by Indian courts to incorporate the sexual orientation and gender identity into the fundamental rights jurisprudence in Union of India and Puttaswamy.
Use of legal jargon
The Transgender Persons (Protection of Rights) Act, 2019
In National Legal Services Authority v. in Union of India, (2014) 5 SCC 438, the Supreme Court held that recognition of transgenders should be as a third gender along with all the rights as per part III of the Indian constitution. Thus, they passed the Transgender Persons (Protection of Rights) Bill in the year 2016.
But later, the 2016 bill dissolved with the dissolution of Lok Sabha. Hence, the Transgender Persons (Protection of Rights) Bill, 2019 was drafted.
Section 2(k) of the Transgender Persons (Protection of Rights) Bill, 2019 states that a transgender person is someone whose gender identified is different from the gender assigned at birth.
In the legislation, Chapter II to VI have provisions relating to, vis-a-vis Prohibition of Discrimination; Recognition of the Identity of Transgender Person; Welfare by the Government; Duties of other persons and establishments towards transgender persons and provisions relating to social security, education and health of transgender persons.
Chapter VII has the provisions of constitution of National Council for Transgender Persons and Chapter VIII has listed the offences against transgender persons and the punishment against the same.
The United Nation and it’s role
UN Women, together with the Ministry of Women and Child Development in India, has helped to establish a gender-inclusive communication guide.
In the meantime, the UNAIDS and UNDP office in India are trying to help the LGBTQIA+ community by organizing awareness and empowerment campaigns and offer those communities improved health and social protection services.
THE Mental Healthcare Act, 2017
In Navtej Singh (supra) the Supreme Court said that Section 2(1)(s) of the Mental Healthcare Act, 2017 that defines mental illness read with Sections 3 and 21(1)(a) of the 2017 Act, puts to the winds, all the previous misunderstandings about same-sex couples. The Court believed that the current definition of mental illness under the 2017 Act leaves no doubt that homosexuality is not a mental illness and through this provision, the Parliament has unambiguously taken away the stigma of mental illness on same sex couples.
Rights under Constitution of India:
The Constitution of India has been drafted following the Independence War; the drafting was also an independence following all the chains. Article 14, 15, 21 has been incorporated in the Constitution that ensures that each individual is entitled to right to equality as well as right to life that are the fundamental human rights. Article 14 puts a ban on any form of discrimination ever on the basis of religion, race, caste, sex or place of birth and Article 21 offers right to life and personal liberty to all persons. Though, the rights granted in accordance with Indian Constitution were not the ones that were needed as a result, the special laws had to add to the efficiency of these provision.
The atrocities have been committed on the LGBTQ community since ages. The above laws might not be enough to see the end of the problem but these are steps in the right direction of normalising at least the discourse. The young population in India is enlightened on the challenges and issues surrounding the LGBTQ community in the country. To solve these issues, several seminars, pride parade, painting of pride wall, discussing it on open platforms has been carried out actively. The individuals are attempting to make it normal at least to discuss it and the corner stone of all this is the 377 judgments. The verdict of the Apex Court in decriminalising Section 377 has been hugely rejoiced across the nation. The greatest provision of this judgment is that the society began to discuss these problems.
The right of the LGBTQ community legislations are just baby steps because the greatest struggle of amending the marital, adoption and all other related laws, is yet to be expected.
The proof
Homosexuality did not start yesterday but it has historical roots. Same-sex love may be evidenced in Hindu Mythology and in several works of literature based on Hindu, Buddhist, Muslim, and modern fiction, ancient literature such as the Manu Smriti, Artha Shastra, Kamasutra, Upanishads and Puranas explores the aspect of sexual acts. Even the sacred Hindu book Rigveda states the phrase: Vikriti Evan Prakriti, which means that what seems to be unnatural is natural. Same-sex relationships were more common during the Muslim rule although it was illegal, and even the Delhi sultans are involved in such relationships besides literature, visual representation of sexual acts can be found all over India in the form of art, paintings, and sculptures.
Among the temples of Khajuraho, one can come across one such incredible narration. The Khajuraho temples sculptures were constructed by the Chandela dynasty between 950 and 1050 AD, and they show men having intimate moments with other men. Other historians and scholars view these sculptures as a same sex love and sexual activity recognition of that time. These sculptures stand tall depicting the multi-sexuality of men, women and the third gender. Likewise, the 13th-century Sun temple, also called Surya Devalaya in Odisha at Konark, has similar imagery. This temple is devoted to the Hindu Sun god and there are sculptures depicting the explicit positions of the Kamasutra. Colourful images of queer couples are also seen in Puri and Tanjore temples. These visual documents dispense any notion that the Indian culture did not have sexual practices.
Moreover, such expressions of gender identity were very stunning to the British colonizers who aimed at controlling such daring representations of gender. Consequently, the colonizers did not only instil a sense of gender on India by outlawing the deviant sexual activities. They also forced their ethical system on India, among other things. Section 377 of the Indian Penal Code during the British rule criminalized sexual acts of unnatural nature with any man, woman, or animal and is punishable with life imprisonment or up to ten years of imprisonment and a fine. It is to be noted that although this social control lasted till 2009, the Delhi High Court in the case of Naz Foundation v Government of NCT of Delhi held Section 377 void, as it violates Articles 14 and 15 of the Indian Constitution.
According to the year 2023 reports of BCC and Times of India the estimate population of homosexual people in India is around 10% of India’s population which is 135 million. Regardless of the controversies and antagonism that characterize the medication and therapy; there is a growing acceptance of the reality that homosexual orientation is a natural diversity of human sexuality; that is physiological, psychological, and emotional. Thus, the Indian government should come out strongly on how to deal with the existing bias in the society.
Problems Faced
Homosexuals lack the dignity and respect even in the modern society. It is frustrating to note they are denied the same principles and ideals which were advocated during French revolution in the 18th century. They are constantly harassed by many other aspects of the society be it politically or economically. Sadly, the situation is even exacerbated when they face ill-treatment even in the hands of their own families that are expected to offer refuge and protection. This part seeks to discuss the plight of the homosexuals in the society.
The second aspect of the problems that they encounter is the socioeconomic one. Gays also earn less as compared to their non-gay counterparts and are more prone to discrimination in the work place.
The homosexual youth in India also face some other problems such as high dropout rates of the school, unemployment, unsupportive family, and vulnerability to drugs. They also become more vulnerable to becoming subjects of human trafficking and being forced to take part in solicitation. Moreover, schools in India fail to offer a gender-neutral space to these youngsters.
Modern Day problems:
Marriage Equality- The issue of same-sex marriage is controversial. Supriyo Chakraborty v. Union of India, Petitioners contested the omission of the same sex couples in the laws of marriage. The Supreme Court left the issue of marriage rights to be considered another day thus creating legal uncertainty in Navtej Singh Johar.
Adoption and Surrogacy Rights- The existing laws on adoption and surrogacy are heteronormative and thus gay, lesbian, bisexual, trans, and queer individuals and couples may not be able to enjoy these reproductive rights.
Anti-Discrimination Legislation- In India, there is no extensive anti-discriminatory law to guard LGBTQ + people in the areas of labour, housing, health services, and hotels.
Case Laws
National Legal Services Authority Vs. Union of India, (2014)
The landmark judgement passed by the Supreme Court in NALSA held that:
Articles 14, 15, 16, 19, and 21 gives a third gender persons certain basic rights
Gender identity
The State should accept the gender identified by transgender persons
Third gender status is recognition that is stated in the constitution
Navtej Singh Johar and ors. Union of India (2018)
This historic, five-judge Constitution Bench unanimously pronounced the obliteration of Section 377 to the level that its denial criminalized gay sex between adults. Justice Indu Malhotra, made observations that constitutional morality should prevail over social morality when fundamental rights are concerned.
Privacy and Sexual Autonomy: The Court also revealed that the sexual orientation comes under the right to privacy, which was ruled in the K.S. Puttaswamy case.
Transformative Constitutionalism: The court stress that a transformative vision of the Constitution presupposes active abolition of discriminatory arrangements.
K.S. Puttaswamy v. Union of India, (2017)
The declaration of privacy as a fundamental right by the nine-judge bench created important jurisprudential support to LGBTQ + rights. The Court said that privacy includes:
Autonomy
Sexual orientation
Defence against state invasion into individual consensual behaviour
Arunkumar v. Inspector General of Registration, (2019)
The progressive order of the Madras High Court accepted same-sex marriage in Hindu personal laws and said that sexual orientation cannot be a reason to deprive someone of the right to marry. This is however, subject to appellate jurisdiction and does not have pan-India applicability.
Conclusion
The history of LGBTQ+ rights in India through the lens of law is an exceptional story of decriminalization to constitutionality. Progressive jurisprudence of the Supreme Court in NALSA and Navtej Singh Johar has declared sexual orientation and gender identity as part of constitutional rights to equality, dignity and privacy.
Nevertheless, there are still big obstacles. The lack of a thorough anti-discrimination law, the ambiguous status of marriage equality, and the gap in application of the transgender rights law all send the message that legal recognition has to lead to substantive equality. The living constitutional law illustrated by the judiciary in the interpretation of the constitution shows how the constitutional law changes with the changing social knowledge with the constitutional spirit intact.
The path towards Section 377 criminalization to constitutional validation can be regarded as an illustration of how transformative constitutionalism may eradicate past injustices and validate human dignity and equality as seminal constitutional principles.
FAQs
What was the Section 377 of the Indian Penal Code? A: Section 377 was used to criminalize “carnal intercourse against the order of nature”, which in effect criminalized gay behaviour.
Is same-sex marriage can be performed in India? A: In India, same-sex marriages are not legalized now. Although the Madras High Court in Arunkumar indicated that they should be recognized under the Hindu personal laws, this is not pan-India as well as Supreme Court approved.
Is it possible to adopt children in India as an LGBTQ + person? A: The existing laws related to adoption are unclear concerning LGBTQ+ people. They are not explicitly excluded by the Juvenile Justice Act, however, the application in practice differs within different jurisdictions.
Which articles of the constitution defend the rights of LGBTQ+? A: The constitutional guarantee of LGBTQ + rights is interpreted by the Supreme Court in terms of articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression), and 21 (life and personal liberty).
Does LGBTQ+ have anti-discrimination laws? A: In India, there is no encompassing anti-discriminatory law. There is some protection under the constitutional interpretation and certain points in the Transgender Persons Act, however, a wider protection in the form of legislation is required.
