Introduction:
The concept of human rights lies on the premise that all humans are created equal and must be treated as equals and with dignity. Anyone and anything undermining that dignity pave the path for discrimination violating the principle of equality. Section 377 of the Indian Penal Code has been regarded as an archaic holdover from colonialism. Since, 1861, homosexuality has been penalised and condemned to be illegal in India with the codification of a law by the British rulers which prohibited carnal, non-procreative sexual intercourse against the order of nature. This was merely a residue of an orthodox Victorian morality that has no place today. In a society where heterosexuality is the norm and homosexuality termed as abnormal, the LGBTQ+ community face several hurdles.
They fall prey to discrimination, intolerance, violence and harassment merely due to their sexual orientation. Most have to suppress or hide their sexual orientation or gender in fear of losing their job or isolation from the community. In several countries where homosexuality is regarded as a crime, they are penalised with fines or imprisonment. Additionally, many personal laws consider it to be a sin and unlawful. Courts have laid down precedents that have provided for more efficient protection against discrimination based on gender identity or sexual orientation.[1] There has been considerable evolution of the Indian Government’s stand on LGBTQ+ rights. Attitudes in India have been observed to differ greatly but the current scenario for bisexual, gay, lesbian and transgender youth in India is bleak. However, the fight for LGBTQ+ rights must rage on.
History
The earliest organizations which support the LGBTQ+ community can be traced back to the 19th century. Homosexual behaviour was not accepted socially and was considered to be a crime. In the 1920s the first bold step was taken by USSR when it decriminalised homosexuality. However, it was criminalised again during the rule of Stalin. The Homophile movement was started in a few European countries in 1945. In 1970 the Gay Liberation Movement was started and homosexual groups like the Gay Activists’ Alliance and Gay Liberation Front were formed. Bisexual persons gained prominence in the movement in the 1970s. Sweden in 1979 became the first country to abolish homosexuality as a disease. In 1977, Shakuntala Devi was one of the first people to conduct and publish a study on homosexuality in India. The movement to repeal Section 377 was started in 1991 by the AIDS “Bhedbhav Virodhi Andolan”. This movement got a thrust again in the year 2001 when a PIL was filed by the Naz Foundation in the Supreme Court of India.
International Scenario
There are different views and opinions on homosexuality all around the world. Around 81 countries have condemned homosexuality as a crime including India. The Right to have sex is an ingredient of the Right to Life and hence a fundamental right. A progressive stand was taken by the General Assembly of the United Nations Organisation which condemned violence, prejudice, harassment and discrimination due to sexual and gender identity against the members of the LGBTQ+ community which undermined their dignity. On 24th September 2014, the Human Rights Council of the United Nations adopted a resolution on “Human Rights, sexual orientation and gender identity”. However, it did not make it mandatory for States to amend or repeal the prevalent discriminatory or criminal laws. Furthermore, India had abstained from voting on this resolution. Furthermore, Article 7 of the Universal Declaration of Human rights provide that all persons are entitled to equal protection before the law and are equal. Article 23(1) of the UDHR further talks of protecting one against unemployment and the Resolution of the Human Rights Council adopted on 30th June 2016 provided for safeguards against discrimination based on sexual orientation and gender identity.
Constitutional Mandate
Right to Equality
Article 14 of the Constitution grants everyone an equal status and equal protection by law in the territory of India. It was observed in the case of the National Legal Service Authority v Union of India that the term “person” in Article 14 had a wide scope and even included transgender persons and made them entitled to equal civil, healthcare, citizenship and education rights as any other citizen without discrimination.
Right against Discrimination & Equality of Opportunity
Article 15 and 16 of the Constitution prohibit discrimination on a variety of grounds namely gender bias and gender-based discrimination. Discrimination based on sex includes that based on identity. These two Articles also enshrine the right to social equality and give power to the State to frame laws or provisions for the advancement of minorities or vulnerable communities.
Right to Life & Personal Liberty
Article 21 is regarded as the heart and soul of the Constitution and protects the fundamental rights of an individual which cannot even be taken away or violated by the State. In the case of R. Coelho v State of Tamil Nadu, the Court opined that one of the essential elements under a right to live with dignity includes that to elect one’s own identity. The right to dignity and one’s reputation also necessitates the recognition of gender identity.
Right Against Exploitation
Article 23 of the Constitution provides for the right against exploitation. It has a wide scope and aims to secure the independence of personal identities and prevent the exploitation of LGBTQ+ persons. Transgenders are one of the worst victims of exploitation who are often drawn into immoral activities like prostitution due to their degraded economic status and this Article seeks to prevent such acts like begging and human trafficking.
Case Laws
Naz Foundation v Government of NCT of Delhi and Others[2]
In July 2001, a few men were detained by the Lucknow police on the suspicion that they were homosexuals. Some others associated with the “Bharosa Trust” were also arrested and denied bail on the accusation of running a sex racket. This incident prompted a legal aid organization, The Lawyers Collective to establish the falsity of the charges to set them free. Consequently, the Naz Foundation along with the Lawyers Collective challenged the constitutional validity of Section 377 of the Indian Penal Code and filed a petition in the Delhi High Court. It was contended that Section 377 was violative of the rights to life, privacy, dignity, liberty, health, equality, expression and undermined the efforts to reduce the transmission of AIDS. The Court in 2009 held that Section 377 of the Code violated the rights enshrined under Articles 14, 19, 21 and 15 of the Constitution of India by imposing vexatious restrictions on two consenting adults engaging in private intercourse.
National Legal Services Authority v Union of India
In 2014, the Supreme Court gave transgenders the status of the “third gender” for welfare schemes such as education, employment, health and reservation. Apart from one being able to openly identify themselves as transgender, their basic human rights were also recognized. The Apex Court laid down that not recognising these identities violated Articles 14, 15, 21,16 of the Constitution, persons of the “third gender” should be treated as socially and economically backward class, in conformity with Articles 15(2) and 16(4) the Government should create policies which gives them equal employment and education opportunities and that they would be regarded as OBC for reservation in jobs and institutions. It was observed by the Court that the difference or conflict between a person’s identity and gender at birth was not a pathological condition. This landmark judgement gave members of this community the freedom to change their gender without a sex reassignment surgery and also benefit from the policies of health and housing made by the state government.
Justice K.S. Puttaswamy v Union of India[3]
In the case of Suresh Kumar Koushal v Naz Foundation, when the Naz Foundation contended before the Apex Court that Section 377 violated the right to privacy, the Court had underestimated this argument, stating that though there have been instances of misuse of Section 377 which has harmed the integrity and privacy of the LGBTQ+ community due to torture, harassment or blackmailing, this law was not beyond the vires of the Constitution as it neither condoned nor authorised such treatment. However, in the present case, Hon’ble Justice Chandrachud’s views on this issue were featured in a section called “discordant notes”. He observed that when the members of the LGBTQ+ community were treated with hostility, the fact that they were small in number could not deprive them of fundamental rights and that sexual orientation is also a part of the right to privacy. This established that the impact of this law is not limited to punishment or prosecution and has an indirect effect of creating a hostile environment for the members of the LGBTQ+ community.
Navtej Singh Johar v Union of India[4]
Homosexuality was criminalised again after the Naz Foundation judgement of Delhi High Court was overturned. There were increased protests and eminent personalities including Navtej Singh Johar were seen to file a petition before the Apex Court challenging the validity of Section 377 of the Indian Penal Code.[5] It was argued that this section violates the rights to equality, dignity, privacy and discriminates between members of the society. In September 2018, the Supreme Court held that Section 377 was unconstitutional as it violated the rights of identity, autonomy and intimacy. It read down this section to exclude intercourse between two consenting adults of the same gender or sex. The Hon’ble Court further observed that Section 377 did not create intelligible differentia between what was unnatural and natural and that it was violative of Article 19 of the Constitution. Criticizing the Koushal judgement and terming it irrational and arbitrary, the Apex Court opined that sexual identity was an inherent aspect of self-identity and could not be denied as it would take away the right to life. It further stated that it was unconstitutional to discriminate based on sexual orientation and that the government should strive to eliminate the stigma shrouding the LGBTQ+ community and create awareness among the public.
The Road Forward
Same-sex Marriage
Several petitions on same-sex marriages are yet to be settled by Courts. So, the government must be encouraged to frame legislation to enable the LGBTQ+ community to marry. Though the Union government let the Court decide the legality of Section 377 in 2018, it has also indicated that it may oppose petitions for legalising same-sex marriage. However, instances of same-sex marriage in India have also been observed after homosexuality was decriminalised in 2009. The Haryana Court had recognised the marriage of two lesbian persons. After Section 377 was deemed to be unconstitutional by the Supreme Court in 2019, the Madras High Court had upheld and directed for registration of marriage between a transgender woman and a biological man.
Adoption
Though Section 377 has been struck down as unconstitutional, the LGBTQA+ community is still barred from adopting children. This illustrates that homosexual persons are not considered to be equal in the eyes of the law. In the light of the NALSA v Union of India judgement, people possess the right to elect their gender and undergo gender reassignment surgery. However, there is no clarity on the legal implications in a case where a woman might adopt a child and consequently undergo a sex change to transform into a male.
Guardianship
The primary ground for granting someone custody or guardianship of a child is the best interest of the child. In order to enable LGBTQ+ persons to be a guardian, the language of the law must not be limited to the binary so as to allow persons regardless of relationship structure, sexual orientation or gender to obtain custody or guardianship of the child if proved that the interests
Surrogacy
As per the new surrogacy bill which was passed in the parliament, LGBTQA+ persons are not allowed to have their own children by surrogacy.
Inheritance
“Marriage” in inheritance laws is restricted to mean heterosexual marriages. Legal recognition of same-sex marriages is essential. Although inheritance occurs on the grounds of proximity to the deceased person and gender is irrelevant, the language of the legislation must be made gender-neutral so as to prevent discrimination against those persons who undergo a sex change.
Employment Rights
The present employment laws are not kind to the members of the LGBTQ+ community. Section 3 of the Transgender Act prevents terminating or denying employment of transgender people in employment due to their gender identity and Section 9 of the same Act safeguards them against discrimination of transgender persons in employment relationships.
Protection Against Discrimination at the Workplace
A survey in 2016 proved that more than 40% of people face harassment in India at the workplace due to their sexual identity. Many thus hide their identities in fear of losing their jobs or discrimination. Workplaces need to undertake sensitization programmes or other initiatives to ensure that such persons feel safer in these environments.
Protection Against Bullying in Educational Institutions
Gender neutral laws relating to sexual harassment in the workplace is the need of the hour. Strong anti-discrimination policies to prevent misuse of laws and gender-neutral harassment laws need to be implemented in an age of rampant homophobia and transphobia.
Conclusion
The United Nations education agency, UNESCO and the International Commission of Jurists, a non-governmental organization have published reports which shed light on the experiences and plight of LGBTQ+ Indians. The research conducted by UNESCO was focused on environments in school and the effect on the youth. On the other hand, ICJ focused their research on employment, education, housing and access to public spaces. The ICJ put forth instances of gender-specific uniforms, barriers in getting accurate documents of identity, lack of access to restrooms, male students being berated and beaten for acting effeminately and transgender students being forced to sit separately. They found that training and educational opportunities were often denied to LGBTQ+ persons because of violence, bullying and harassment. Surveying 371 gender and sexual minority youth, UNESCO gathered information through focus groups in Tamil Nadu. They found that 84% of the participants had been bullied by other students and one-fifth of them were bullied by male teachers. However, merely 18% of such people had reported the cases to school authorities.
Recently, Judge Anand Venkatesh of the Madras High Court ruled in favour of a young lesbian couple seeking protection from “harassing questioning” by the police upon a missing person report being filed by the disapproving parents.[6] After undergoing psycho-education for tackling his prejudice and ignorance, the Hon’ble Judge Venkatesh accepted that he belonged to the majority of people who did not fully comprehend sexuality and that he was a part of the society “with all the misconceptions present”. He stated that “Ignorance is no justification for normalising any form of discrimination” and that his goal was to educate himself to do social justice to the LGBTQ+ community. Such progressive judgements are the need of the hour. In order to protect vulnerable youth and acknowledge diversity, initiatives such as listing gender identity and sexual orientation in anti-bullying and non-discrimination policies should be undertaken. Nevertheless, LGBTQ+ citizens in India cannot be termed as a minuscule minority and their voices must be heard and not be silenced lest their efforts to reclaim equality fail.
References:
[1] Zainab Patel, The Long Road To LGBT Equality In India, UNITED NATIONS, https://in.one.un.org/blogs/the-long-road-to-lgbt-equality-in-india/
[3] (2015) 10 SCC 92
[4] (2018) 1 SCC 791
[5] Filip Noubel, The state of LGBTQ+ rights: ‘India does not have anti-discrimination code’, BUSINESS STANDARD (July 12, 2020), https://www.business-standard.com/article/current-affairs/the-state-of-lgbtq-rights-india-does-not-have-anti-discrimination-code-120071200179_1.html
[6] Apoorva Mandhani, Judge lays down rules for LGBTQ protection after counselling to get ‘woke’ on same-sex couples, THE PRINT (June 7, 2021), https://theprint.in/judiciary/judge-lays-down-rules-for-lgbtq-protection-after-counselling-to-get-woke-on-same-sex-couples/673453/
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