LGBTQ Rights in India

The day of September 6, 2018, was not an ordinary day. On that fateful day, something historic occurred that "blew a life of constitutionality" in the perished LGBTQIA+ community members who had endured decades of mind-numbing toil. The Supreme Court of India issued a landmark decision decriminalising homosexuality by partially repealing Section 377 of the IPC, making the day unique for the LGBT+ community.

Despite homosexuality been decriminalised, the laws in India still remain hostile and prejudicial towards the LGBT community in several ways.The reason behind this is that there exists an enormous gap between the legislative and the judicial development of LGBT laws in India.

So, though the Supreme Court of India through the landmark judgements of National Legal Services Authority v. Union of India, Navtej Singh johar v. UOI, and Justice K.S.Puttaswamy v. Union of India (Puttaswamy) has laid the groundwork to confer upon the queer and non-binary community a bundle of basic human rights, but the legislature has failed to keep up with the recent developments.

Evolution of LGBT Rights

Section 377 of IPC which criminalised all kinds of non-procreative sexual intercourse was enacted in the pre-independence era by the British colonial Government.

1. Naz Foundation Govt. v. NCT of Delhi

Background: In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a park and detained a few men on the suspicion of them being homosexuals.

Judgement: Finally, In 2009 in the case of Naz Foundation Govt. v. NCT of Delhi, the High Court of Delhi held that Section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. Thus, it was in direct violation of their basic fundamental rights enshrined under Articles 14,15,19 and 21 of the Indian Constitution.

2. Suresh Kumar Koushal vs Naz Foundation

Background: Various Individuals and faith-based groups vehemently rejected the idea of decriminalizing homosexual relationships, in light of India’s rich history bathed in ethics and tradition. They further appealed before the Supreme Court of India to reconsider the constitutionality of Section 377.

Judgment: When the community, after eight years of a long battle, was just letting out a sigh of relief, the Supreme Court on 11th December 2013, overturned the judgment of the Delhi High Court and re-criminalised homosexuality. A bench of Justice GS Singhvi and Justice SJ Mukhopadhaya of the Supreme Court held that LGBT+ persons constituted a ‘minuscule minority’ and therefore did not deserve constitutional protection and further observed that Section 377 of IPC did not suffer from the vice of unconstitutionality.

Aftermath: But the silver lining was that the Suresh Kumar Koushal V. Naz Foundation judgement, instead of putting a halt on the LGBT movement has rather rekindled a new wave of activism in India. The Supreme Court’s iconoclastic judgement faced immense criticism from every nook and corner for erasing basic human rights of homosexuals. The result was that public discourse about LGBT rights witnessed an upsurge in India.

3. National Legal Services Authority v. Union of India (2014)

The Judgement in his case brought in a new ray of hope and euphoria for these transgender people as for the first time in the history, they were recognised as the third gender.

Issue: The Supreme Court had to decide upon the question of whether there was a need to recognise the hijra and transgender community as a third gender for the purposes of public health, education, employment, reservation and other welfare schemes.

Judgement: The Supreme Court in its landmark judgement created the ‘third gender’ status for hijras or transgenders. As earlier, the transgender people were forced to describe themselves as either male or female, but after the judgement, they could proudly identify themselves as transgender. But apart from this, what made this judgement so special was that it laid down the framework to guarantee the transgender community a whole spectrum of basic human rights which can be surmised as follows:

1. The court held that the non-recognition of their identities was in violation of Article 14,15,16 and 21 of the Constitution of India.
2. The Supreme court further directed the Government of India to treat the members of “Third Gender” as an economically and socially backward class.
3. It was also stipulated that government should make proper policies for the transgender community in the light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment. As per the judgement, the third gender would be categorised as other backward classes [OBC] to confer them the benefit of reservation in relation to government jobs and educational institutions.
4. The court also took cognizance that a conflict between one’s birth gender and identity is not essentially a pathological condition. So, rather than adopting a “treatment of the abnormality”, the focus should be on “ resolving distress over a mismatch”.

Aftermath: After this judgement, transgender people now can change their gender without undergoing a sex reassignment surgery. Additionally, they have a constitutional right to identify and register themselves as the third gender. Apart from this, various state government took small steps to benefit the transgender population by making policies of health and housing.

4. K.S. Puttaswamy v Union of India (2017)

Background: The Court considered whether the right to privacy is a part of the right to life and personal liberty under Article 21 of the Constitution.

Judgement: The Court held that privacy is an attribute of human dignity. The right to privacy safeguards one’s freedom to make personal choices and control significant aspects of their life. In addition, it noted that personal intimacies (marriage, procreation and family), including sexual orientation, are at the core of an individual’s dignity.

• Further, the Court described discrimination on the basis of sexual orientation as “deeply offensive to dignity and self-worth”. It noted that the right to privacy was at the intersection of Articles 15 and 21 of the constitution, by referring to its decision in NALSA which grants the right to self-recognition of gender. It stated that the right to privacy was an expression of individual autonomy, dignity, and identity.
• Natural Rights
• The Court acknowledged that certain rights are not bestowed by the State but are inhered by a person by virtue of being human. All individuals have natural rights, irrespective of their class, economic status, gender or sexual orientation. Significantly, the right to self-determine sexual orientation was also recognised as a natural right.
  

5. Navtej Singh Johar V. Union of India

Background: After the overruling of the Delhi High Court judgement in 2013, homosexuals were again considered as criminals.

India witnessed an increasing number of LGBT rights protests when some high profile names including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej Singh Johar among many others came forward and filed the petition before the Supreme court challenging the constitutional validity of Section 377 of IPC.

Judgement: The Court finally gave its verdict on 6th September 2018 and it can be summarised as follows:

1. The court unanimously ruled that Section 377 is unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity. and decriminalised homosexuality by reading down Section 377 to exclude consensual intercourse between adults of the same sex/gender.
2. The court rationalised that the Section 377 is vague and does not create intelligible differentia between what is “natural” and what is “unnatural”. It also curbs freedom of expressing one’s sexual identity, ie. right to freedom of expression as enshrined under Article 19 of the Indian constitution.
3. The court further opined that the sexual orientation is an inherent part of self-identity and invalidating the same is denying the right to life and the fact that they constitute a minuscule section of the population cannot be a valid justification to deny them this right.
4. The court also heavily criticised the Koushal judgement and called it irrational, arbitrary and manifestly unconstitutional.
5. It was also emphasised that discrimination on the basis of sexual orientation is unconstitutional, considering it is a natural phenomenon as proven by scientific and biological facts.
6. The Supreme court also directed the government to create public awareness regarding LGBT rights and to eliminate the stigma surrounding the LGBT people. The judges further elaborated upon the issues surrounding mental health, dignity, privacy, right to self-determination and transgenders.
   

6. Deepika Singh versus Central Administrative Tribunal & Ors. (2022)

It is another landmark decision of the Supreme Court of India that widens the definition of ‘family’ under Indian law.

The Justices note that such atypical families are deserving of equal protection under law guaranteed in the Article 14 of the Indian Constitution and benefits available under social welfare legislation.

Significance: The ruling expands the definition of 'family' in Indian law to include unmarried partnerships, queer relationships and single parent families.

Transgender Persons (Protection of Rights) Bill, 2019

Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect the rights of the Transgender Community by prohibiting discrimination against them with regards to employment, education. healthcare, access to government or private establishments. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanises their body and identity.

The trans community in India has vehemently rejected the bill citing following provisions of the bill as they infringe their fundamental rights and do not comply with the NALSA judgement.

1. The bill snatches from an individual the right to determine his/her sexual orientation which is an integral component of the right to privacy as pronounced in the NALSA judgement. As per the bill, the change of gender identity in documents can only be done after proof of sex reassignment surgery which must be certified by the District Magistrate. This takes away from the Trans community the basic human right of autonomy and privacy and further exposes them to harassment in the hands of authorities.
2. Another discriminatory aspect of the bill is that the punishment prescribed in the case of ‘ Sexual abuse against Transgender’ is only of two years while a similar kind of offence if, happened against women attracts a serious punishment extending up to 7 years.
3. The bill is also worthy to be criticised as the bill erroneously neglects the viciousness and atrocities that transgenders encounter within their own family. The law disentitles them from leaving their families and joining the trans-community thus infringing their right to be a part of any association and right to movement. The only recourse available to the trans community in case of family violence are the rehabilitation centres.
4. Although the bill seeks to provide “inclusive education and opportunities” to the transgender community but fails to lay down any concrete plan to achieve the same. There are no provisions in relation to providing any scholarships, reservation, changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and workplaces for the trans-community.

Therefore, it can be concluded that on one hand where the courts are taking progressive steps to empower and uphold the rights of LGBTQIA+ community, on the other hand, the legislature is invalidating the same rights. It is high time that the government should acknowledge and frame laws in accordance with the landmark judgement else the LGBTQ community will continue to face setbacks in their struggle to have the same rights as those available to heterosexual people.

Same-sex Marriages

Special Marriage Act of 1954 lays down provision for people of India and all Indian nationals in foreign countries allowing them to marry irrespective of their faith, caste and religion. So, while the marriage laws in India have evolved progressively with time but there is no such provision for the same-sex couples to marry, which seems reasonable also considering it’s only been few years when the Supreme court decriminalised homosexuality. However, sooner or later the legislature has to deal with these questions.

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