Author: -Vallabhi Rastogi
India is a nation known for its diversity and multiplicity in all aspects and spheres. These can be the number of languages spoken, religions practised, geographical aspects, cultures observed or communities existing, etc. One such community is the LGBTQIA which is considered as a minority but in reality, this may not be the case. It is because of the attitude of facing dejection and fear of retribution, many individuals have still not come out freely and expressed/identified themselves as being proud members of this phenomenal group. LGBTQIA is an acronym given to the homosexual/transgender community which stands for Lesbian, Gay, Bisexual, Transgender/Transexual, Queer/Questioning, Intersex, and Asexual/Agender. The stern penal provisions until 2018 have led most of the citizens to disregard and form an unfavourable opinion about homosexuals which are humans first and then fall under the ambit of a different community. However, these regressive and orthodox mentalities have prevented them from being vocal about their identity and from enjoying their freedom which they have by the virtue of being humans. Their human rights need to be protected along with granting them social justice and political/economic equality. Even with the recent changes and reforms in the transgender laws of India, a huge amount of work needs to be done and protective legislation needs to be provided to this community to not only have a better standard of living but also a better society to live in.
Most of the well-renowned historians have claimed that Indians had a more liberal approach towards the LGBTQIA Culture when compared to the British who were responsible for criminalizing and disregarding homosexuality and unnatural sex in India under ‘Section 377 of the Indian Penal Code(IPC), 1860’1 during their dominion in India, considering the influence of the Christian faith and beliefs. In one of her interviews, “Historia Rana Safvi said that ‘Love was celebrated in India in every form and fluid sexuality was evident in the Indian society before the British rule.”2 The historical monuments were built in ancient times namely the Sun Temple in Konark, Khajurao temple in Madhya Pradesh, Ajanta and Ellora Caves in Maharashtra, some Gods and Goddesses in the Indian mythology, and Mughal Emperor Babar’s outright affection for men reflect that homosexuality was prevalent in India. Homosexuals were not completely disregarded in society until the British shunned it and became intolerant towards unnatural sex and same-sex marriages. The penal law criminalizing homosexuality depicted the British’s intolerant perception of this culture.
After Independence, certain changes were brought in over the years. Initiatives were taken to change the law legislated by the British. In 2002, this section was constitutionally challenged through a PIL and the Court ruled it as violative of an individual’s fundamental right, thereby, unconstitutional in 2009. However, this was overruled in 2013 wherein the constitutional validity of Section 377 of IPC was upheld. Several bills were introduced since then to decriminalize homosexuality but they were all rejected. Finally, in 2018, the apex court struck down a part of section 377, thereby decriminalizing consensual sexual activities between same-sex partners.
Reforms & Challenges – the long journey to equality
The first two decades of the 21st century have witnessed a series of cases dealt with by the Supreme Court and High Courts of India revolving around the dignity, rights, and status of the LGBTQIA community. The Courts have interpreted and ruled by applying various approaches and perspectives which has eventually, resulted in evolving yet progressive changes for the welfare of this community. These changes are about equality, dignity, rights, recognition, and status in comparison to the other people around. Thus, it can be said that India has undergone a string of reforms since the start of this century in this regard up until now.
Homosexuality is majorly covered under Section 377 of IPC, 1860 along with other relevant ancillary provisions. This section has been under a great deal of deliberation and controversy.
- NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI AND ORS. 3
An NGO under the name of Naz Foundation (India) Trust dealing with HIV/AIDS sufferers filed a suit before the Delhi High Court challenging the constitutional validity of Section 377. The petitioners contended that not only this section was violative of the fundamental rights but also that sexual relation should be permitted between consenting homosexual adults. Homosexuals faced inequality, discrimination, restriction on their right to freedom of speech and expression and right to life, and personal liberty due to this section. Other than this, the impugned section should only include non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors within its ambit.
The trust appealed to the Apex Court when their petition was dismissed by the lower court on the grounds of having no locus standi. The Hon’ble Supreme Court directed the Delhi High Court to reevaluate this case. Other than the respondents, the Ministry of Health Affairs and Family Welfare, as well as NACO, acted as interveners to retain this section in its entirety. They argued that this section tries to bridge the loopholes in the rape provisions and upholds morality, societal values, and decency. It took almost six years for the Delhi High Court to give the ruling in favour of the trust declaring “it to be violative of Article 14,4 21 and 155 of the Constitution of India, therefore, unconstitutional. Section 377 would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”6 This judgment given in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Murlidhar was not to be applied retrospectively, also stated that only adults, that is homosexuals who are 18 years and above will be able to give their consent to sexual activity.
- SURESH KUMAR KOUSHAL V. NAZ FOUNDATION & ORS.7
The judgment of the Naz Foundation case went to appeal to the Supreme court of India. Many other people who were not satisfied with the Delhi High Court’s ruling stated that such acts were illegal, immoral, and against the ethos of Indian societal and religious values. Health Ministry and NACO put in counter-arguments to the aforementioned ruling.
They stated that the impugned section “suffers no constitutional infirmity since it does not violate any of the fundamental rights guaranteed to the citizens of India. Further, there are no instances of arbitrary use of this section and these sexual acts are evidently against the order of nature. Other contentions by the appellants, in this case, were that this section was entirely gender-neutral and not violative of the right to privacy or dignity under Article 21. They further stated that decriminalizing this section would detrimentally affect and tempt people towards homosexual activities that are against the order of nature. In response, the council siding with the LGBTQIA community argued that ‘the right to equality under Article 14 and the right to dignity and privacy under Article 21 are interlinked and must be fulfilled for other constitutional rights to be truly effectuated. Considering this, right to choose and be treated equally with dignity and respect, all fall under Article 218 of the Constitution.’
The Division Bench of the Apex Court admitted the appeal and overturned the lower court’s ruling that decriminalized Section 377. The Supreme Court held that the impugned section is not violative of the Constitution or in other words, did not suffer from constitutional infirmity. “Further, it was held that Section 377 IPC applied irrespective of age and consent and that it did not criminalize a particular person or identity or orientation. Section 377 only identified certain acts which, when committed, would constitute an offence.”9 It held that only the Parliament could decriminalize homosexuality and not the High Court. Therefore, with this decision of the Supreme Court in 2013, the constitutional validity of Section 377 of the IPC was reinstated, thereby, criminalizing homosexuality.
- NALSA V. UNION OF INDIA & ORS.10
The Supreme Court division bench of Justice K. S. Radhakrishnan and Justice A. K. Sikri decided this case in 2014. The National Legal Service Authority filed a writ petition stating that not recognizing the rights of the transgender community was a violation of their Article 14, 15, 16, and 21. They were treated as inferior humans, discriminated against, and abused with regards to their gender. The main issue brought before the court was can transgenders be given a right to be recognized as people belonging to the third gender? The Court observed that the State must provide equal protection to all the people irrespective of anything under Article 14, so this includes the transgenders as well. Secondly, there can be no discrimination against them on basis of ‘sex’ which includes a prohibition on gender bias or stereotyping against them. Gender identity forms a part of the right to freedom and personal liberty which even the State cannot abridge. Self-identification with regards to gender is a choice which one should be free to make. Therefore, all kinds of oppression against transgender were considered violative. The Court stated that transgender other than binary gender will be recognized as ‘third gender’.
- Shashi Tharoor had also introduced and tried to pass a private member bill in favour of the transgender community in 2014. However, the bill was rejected twice by a huge majority in the parliament.
- NAVTEJ SINGH JOHAR V. UNION OF INDIA11
This has been the most recent landmark judgment that dealt with homosexuality. Five LGBTQIA activists filed a separate writ petition that challenged the constitutionality of Section 377. The Court was once again made to deliberate on this issue as to whether it was infringing Article 14 and thereby, discriminatory against people on the grounds of their ‘sexual orientation’ and ‘gender identity’. Another issue raised before the Court was whether it violated the right to dignity, respect, and autonomy under Article 21 by “penalizing private consensual activities between same-sex persons?”12
The Five Judges bench including Chief Justice Dipak Misra reversed the ruling held in Suresh Kumar Koushal’s case. The Court held that the ruling in Suresh Kumar’s case that homosexuals are a ‘minuscule minority’ cannot be the grounds to deny the right to privacy. “It observed that minorities face discrimination because their views and beliefs do not align with the majority and the Koushal decision violated the right of all persons to equal protection.”13 The Court found this section to be arbitrary as it allows others to disregard and look down upon this community. This not only allowed stereotyping but also they were treated as inferior humans thereby, leading to inequality.
Furthermore, the Court observed that same-sex marriages do not in any way disrupt public order, morality, or decency. This makes it non-violative of Article 19. Lastly, the bench ruled that the section in question was violative of autonomy, right to choose their identity, and liberty of the LGBTQIA community. As far as ‘against an order of nature’ is concerned, there is “no specific distinction between natural or unnatural.” The Court identified transgender as ‘Third Gender’. The obiter, finally, was that Section 377 was struck down to the extent that it penalized sex between two consenting adults.
After the Navtej Singh Johar v. Union of India ruling, Section 377 has been removed to the extent it penalized sexual intercourse/act between consenting adults. The LGBTQIA community deserves the same level of respect and dignity as any other community. They cannot be treated as ‘fewer humans. The section was severed to a certain extent since it was held to be violative of Articles 14, 15, 16, 19(1)(a) and 21. This has been a positive change that has been a great relief for this community who has battled hard for their right which they have by the virtue of being humans. They cannot be devoid of their basic human and fundamental rights. It has been a considerable victory since the court has woken up to this issue which unnecessarily made the transgender community vulnerable to atrocities and stereotyping. Positive actions and measures by the Government are a requirement, given the large share of struggles they’ve had. Navtej Singh Johar’s judgment only decriminalized homosexuality between consenting adults but has not expressly identified same-sex relationships/marriages.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
The issue regarding the LGBTQIA community was much in debates and was deliberated upon and the legislation dealing with it was in talks for quite some time. It was on the 26th of November, 2019 that the Transgender Persons (Protection of Rights) Bill, 2019 was passed in the Parliament. This bill has provisions for prohibiting discrimination against this phenomenal community in all spheres. According to it, “a ‘trans person’ is one whose gender does not match with the one assigned at birth.”
Along with being a great step towards alleviating the dejection faced by this community and creating a more favourable environment, this bill has been highly criticized on several grounds because it makes it mandatory for a person to get a certificate of identity issued by the District Magistrate to be recognized as a transgender. This acts as a restriction on their freedom and liberty. Other than this, activists have disparaged this bill because certain provisions of the bill are ‘detrimental to the fundamental rights’ guaranteed in Part III enshrined in the Constitution of India. The penalty for sexual offenses against transgender members is a maximum imprisonment of 2 years which is much less when compared to the minimum of 7 years imprisonment for women when they are sexually assaulted. Therefore, it is evident that the novel bill that was meant to benefit the LGBTQIA culture and make the transgender community feel secure is considered as degenerating and regressive, presently, by some of its members and activists.
The LGBTQ community has come a long way, facing all the hurdles and struggles throughout. Even after the British reign ended, it took India approximately 7 decades to change this law that contributed to inequality. The law criminalizing LGBTQ Community had been overturned in 2009 but was reinstated in 2013. This section of IPC had grave and adverse effects on the transgender community. This community was disregarded, hounded, and looked down upon as if they were heinous criminals. Over time, some people have internalized that homosexuality is against their faith, culture, and values. This has been mentally straining and traumatizing the transgender community. They fear to open out in public even after homosexuality is decriminalized. An open and liberal attitude is the need of the hour.
“The Universal Declaration of Human Rights expresses that all humans are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”14 Therefore, homosexuals need to be treated equally with respect and dignity since they at least have this basic human right. It is an individual’s choice as to whom he/she wants as a partner. Once they give their consent, the Government, or any other body/person should have no authority to take away this right. There is no ‘order of nature’ specifically mentioned against which homosexuality acted. Same Sexual Relations cannot be taken under the ambit of unnatural sex.
This community forms an integral part of society. Their rights need to be protected like all other people. They cannot be discriminated against or taken for granted since their development would also contribute to the nation’s development. India as a nation, needs to progress with the changing times and provide them with equal footing like all other individuals without any disparities. Considering their needs is not a charity anymore, it’s their absolute right which is significant to improve their standard of living.
- Unnatural offences—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 fine. Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this sect.
- Vikas Pandey, Why Legalizing Gay Sex In India Is Not A Western Idea, BBC (Dec 31, 2018) https://www.bbc.com/news/world-asia-india-46620242 .
3. WP(C) No. 7455/2001; (2009) 111 DRJ 1.
4. Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
5. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth –
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
6. Supra note 3.
7. (2014) 1 SCC 1.
8. Protection of life and personal liberty-No person shall be deprived of his life or personal liberty except according to procedure established by law.
9. Ravi Kulkarni, Anshul Prakash & Kruthi N. Murthy. India: Supreme Court On Section 377 IPC: The Foundation of An Inclusive Work Environment For LGBT Community In India. MONDAQ Ltd. (Sept 26, 2018) https://www.mondaq.com/india/discrimination-disability-sexual-harassment/739804/supreme-court-on-section-377-ipc-the-foundation-of-an-inclusive-work-environment-for-lgbt-community-in-india
10. (2014) 5 SCC 438.
11. Writ Petition (Criminal) No. 76 of 2016.
12. Navtej Singh Johar v. Union of India, Centre for Law & Policy Research (South Asian Translaw Database).
13. Supra note 11.
14. The Universal Declaration of Human Rights, 1948, art. 1.
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