The study of this article aims to acknowledge the struggle of the third gender in the Indian society. LGBTQ+ (Lesbian, Gay, Bisexual, Transgender and Queer and other identities) has come up as a new generation globally and most of the countries have been persuaded by their presence. LGBTQ being a third gender is not acceptable in many countries and is considered as a sinful act. The community is still fighting for their legal rights in the society. This blog talks about how the Indian LGBTQ community has struggled for their equality as India being a pious nation disregards and considers it an immoral activity. However, in recent years the LGBTQ community has received attention from the Supreme Court of India as Indian Constitution talks about equality and impartiality among sex, caste, religion, and place. This paper has discussed this issue in a chronological aspect and has given serious attention to LGBTQ rights and has also talked about further more development in the community.
Human Rights, homosexual, LGBTQ rights, transgender
Article 14 of The Constitution of India says that the state should not take away the rights of the people and should be treated equally. Similarly, Human Rights commands dignity and equality among humans. Anything which threatens the dignity results in violation of human rights. The world has always observed humans as two categories i.e., men and women but there is another sex which is slowly gaining its popularity and fighting for their rights around the world known as LGBTQ+, which means Lesbian, Gay, Bisexual, Transgender, Queer and other sexual and gender identities. Similarly, India did acknowledge the presence of sexual minorities but they were restricted to disclose themselves, so eventually they fought for their rights as it was against the Indian laws i.e., Section 377 of IPC. But how did LGBTQ community come into phase?
In 1869, a German doctor named KM Kertbeny originated the word ‘homosexual’ who was in the opposition of German buggery laws, but it was not made popular until 1880s, it was then adopted by people who belonged to the community by their own experience which they themselves could not explain it clearly and labelled it as ‘unnatural’ and ‘immoral’. The values and their viewpoints which was performed by the Judaeo-Christian said unnatural sexual acts were a sin against god and nature and also for their culture. This system of value took shape in the legal binding on buggery as a sinful crime and declared unlawful as seen in the Indian Penal Code.
India is an immense and a different country and has a different reaction towards the subject LGBTQ+ community. It becomes more difficult for India to understand this term as the country is divided into urban and rural India as both have different culture, rituals and has a very complicated history to understand new terms. But what we do have to know that the LGBTQ+ community is not a small minority section in India, it has its own voice and the ability to fight for their rights. Fighting for their equality was not easy and it took long years to convince the law. The fight started in 1977 when Shankutala Devi a mathematician published the first study of homosexuality in India called ‘The World of Homosexuals’. It called for decriminalization and “full and complete acceptance – not tolerance and sympathy”, the book however went unnoticed at that time.
On the subject of homosexuality there were two seminars held in India – ‘Gender Construction and History of Alternate sexuality in South Asia’ which was held in Delhi in December 1993, which forecast on bringing to life different possible historical and mythological traditions and customs and going deep into the problems of gay people, lesbians and bisexuals and a year after, another seminar held in Mumbai on ‘Gay men’ and men who have sexual intercourse with men. This was the first South Asian Gay conference popularly known, which emerged various gay identities, handled with the imputation of their actions and behaviour on their sexual health before it, on 1992, a conference was held which dealt with the politics of sexuality which was held in Delhi. In 1994, Hijras were legally granted voting rights as a third sex. Then, the filing of petition was made in Delhi High Court for the criminalizing beggary, to develop strategies of action AIDS Bhedbhav Virodhi Andolan (ABVA) organized a meeting in April 1995. The movement of Indian Gays and lesbians is unique in its on form where a visible liberation effort is made by the activism group ABVA which was not even in the identity of Gay group. On the other hand, in the western countries the movement of Gays and Lesbians was held by themselves only.
Sircar wrote that ‘the nationalist resolution of the homosexual question’ in India was a talk show on CNN-IBN news channel which discussed that whether an independent India should be opened to homosexuality which was channelled during independent day week, just a few days later when the Delhi High Court gave the judgement in the case NAZ Foundation 2009. The Naz Foundation name has become a history for its excellent work against section 377 of Indian Penal Code. In this case a question was lifted that whether section 377 should be abolished? The court handled in two angles, firstly by bringing Article 21, they said that without dignity and privacy no person can enjoy Right to Life and secondly they discussed the concept of Right to Equality where they said that Section 377 is violative to Article 14 as it is an unreasonable discrimination, it discriminates homosexuals as a class and criminalizes their consensual sex. The second important argument which was laid down was that under Article 15, discrimination on the basis of sex was prohibited. Later in 2009, by giving the judgement of this landmark case, Delhi High Court announces that the part of homosexual in Section 377 should be declared unconstitutional.
The next judgement was Suresh Kumar Koushal v. NAZ Foundation in 2013, in which there were two arguments which was brought down, firstly that homosexuality is a criminal offence and only the parliament has the power to decriminalize it and courts have no right to interfere in it, the second argument was that the Right to Privacy cannot be extended that much that in which people commit offence in it. So, it was further said that Right to Privacy cannot include homosexual acts. By this judgement, India lost its significance step and was pulled backward by many international organizations. After this judgement the people who were freely expressing their sexual orientation because of the judgement given in 2009, they were considered as criminals and targeted in the eyes of law.
In 2014, a new judgement was passed in the case NALSA v. Union of India ., in this case there were loopholes that the Indian laws concentrates on only binary genders i.e. male and female and transgender rights are not protected by any provision and because of this the transgender community was facing discrimination. By dealing this loophole, Supreme Court recognized multifaceted rights. Supreme Court further said that under Article 14 every person’s rights are protected and this all genders are included, even the transgender. Under Article 15 and Article 16 gender-based discrimination is prohibited so if there is discrimination on the grounds of sexual orientation then it would be violative of Article 15 & and 16. An important argument was made by the Supreme Court in Article 19, it was said that privacy, gender identity and integrity are all protected under Article 19(1)(a), Section 377 was indirectly included in this Article. In Article 21, Right to live with dignity includes right to choose gender identity. In explaining the ruling the bench said: “While reading down Section 377, the High Court noted that a minuscule fraction of the country’s population constitutes LGBT people…” Because of this case self-identity and gender identity got the legal recognition. Where three points were stated:
Right to self-identify their gender
Equal treatment of “all people”
Legal recognition of gender identity i.e. men, women and transgender.
The same year in 2014, the Indian Psychiatric Society released a statement saying that homosexuality is not a disease.
The next judgement was in the case of Justice K.S. Puttaswamy v. Union of India, in this the Supreme Court affirmed that Right to Privacy is our fundamental right. To decide this case there was 9 judge bench which was constituted. The judgement of this case was authored by Justice Chandrachud, he said that the Supreme Court has the responsibility to rectify the mistake which was done in the case of Suresh Kumar Koushal v. Union of India as sexual orientation is an essential attribute of privacy and should be protected at even platforms. In this case he rejected the idea of minuscule minority.
The final case was the Navtej Singh Johar v. Union of India which declared Section 377 partially unconstitutional. In this a five-judge bench was constituted who were CJI Dipak Misra, Justice Indu Malhotra, Justice Rohinton Nariman, Justice AM Khanwilkar and Justice DV Chandrachud. By taking the support of Article 14, Supreme Court said that the sexual acts should be criminalized of two consenting adults just because they are homosexual was considered as invalid intelligible differentia and an unrationed nexus and to give away ambiguous and subjective test which is based on morality.
On the contention of Article 15, Supreme Court said that the approach which was made during the case of NAZ foundation was the appropriate approach that sex is both biological sex and orientational sex and this approach reflects our improved understanding. By supporting Article 19, Justice Chandrachud said human sexuality cannot be narrowly defined, discrimination against LGBTQ+ is unconstitutional, it protects the identity of people and gives the right to freely express their identity. Finally, by taking the support of Article 21 Supreme Court said that Right to life and liberty includes privacy, dignity and autonomy. This right can be reasonably restricted and curtail our rights but by applying section 377 we cannot apply in rights and restrict their enjoyment.
By these development and cases which were fought in High Court and Supreme Court, the LGBTQ community got to express their identity freely in India. A long back implemented law by the British Empire in 1861 – Section 377 was decriminalized in 2018 where it is legal to maintain sexual relations with man or woman but with an exception that it is still a crime maintaining a sexual relation with an animal as for their rightful protection and non-consensual sexual relations with any gender. An important point is also to be noted that India has not given the privilege for same sex marriage. India is now with 125 other nations where homosexuality is legal. However, there are still 72 countries and territories worldwide still continue to criminalize same sex relationships.
LGBTQ+ has become a new generation activist who are fighting for their rights and want equality among everyone – marriage equality, increasing visibility of trans people and more support for LGBTQ youth. India has over 2.5 million gay population. A very unique flag is also used as a symbol for their identity which is a rainbow flag which was originated in World War 2. India’s famous Transgender Rights Activists and also a well-known Bharatanatyam dancer Laxmi Narayan Tripathi has represented and supported LGBTQ Community in a well – known way. She is the first transgender to be the spoke person at Asia Pacific in United Nation in 2008. She helped to conduct many movements like Mumbai Gay Pride 2012 and some other Indian transgender like Akkai Padmashali has given the voice to the Indian LGBTQ+ world and fight for their rights. For India and its citizens this has been a proud moment as after years of struggle the LGBTQ+ has got their rights and are means of equality in India. We are human beings and we are bound to be treated in equal manner and that is what the rights of the humans talk about no matter what gender are they!
Author: Aditi Sahay from Symbiosis Law School, Nagpur.