Homosexuals and the evolution of their Rights in India –

Introduction :

Popular belief and study of the behavioural trends of the homosexuals tell us, homosexuality is a romantic and physical attraction of a person towards another of the same sexual orientation. The word homosexuals literally means as ‘of the same sex, being a hybrid of the Greek prefix homomeaning ‘same’ and Latin root meaning ‘sex’. In other words Homosexuality is a sexual orientation characterized by sexual attraction or romantic love exclusively for people who are identified as being of the same sex. People who are homosexual, particularly males are known as ‘gay’, gay females are known as ‘lesbians’.That is homosexual marriages, sometimes referred to as gay marriage, indicates a marriage between two persons of the same sex.

Scientists all over the world are not at consensus about the exact causes of homosexual behaviour in humans. Homosexuality, often called the third sex, has an unsettled legal and social status in India. Today homosexuality is a much debated topic with much hatred, fear, prejudice, violation of constitutional rights for civil society and the government of India. Homosexuality – should be legalized or not, it is natural or unnatural, it should be criminalized or decriminalized, these questions are raised before the people of india.

While, we see rallies and public protests against the oppression of homosexuals in the society, we also see the homosexuals being looked down upon by a large number of members of the society. The Indian society appears ambivalent, being tugged between popular views and the call of their own conscience. These societal and legal perspectives in turn, have a plausible psychological impact on the members of the homosexual community, also called the LGBT (lesbians, Gays, Bisexuals, transgenders) community in the local jargon.

History :

The earliest western document concerning homosexual relationship come from Ancient Greece, where same sex relationship were the societal norm. Even homosexual marriages have occurred with relative frequency in the past, both within Christian and non-Christian communities.Researches suggest that the Catholic Church, which has been extremely vociferous in its opposition to homosexuality in general, approved of same-sex marriages for over 1500 years, only ceasing to perform them in the nineteenth century.

In preindustrial societies also homosexuality was generally accepted by the lower classes while some members of upper classes considered it immoral. However with the rise of urbanization and the nuclear family, homosexuality became much less tolerated and even outlawed in some cases. The sexual orientation in pre modern era as depicted in love poetry and paintings and even in historic figures such as Alexander the great, Plato, Hadrian, Virgil, Leonardo da Vinci, Michelangelo and Christopher Marlowe included or were centered upon relationship with people of their own gender.

However the term homosexuality appears in print for the first time in 1869 in an anonymous German pamphlet paragraph 142 of the Prussian penal Code and Its maintenance paragraph 152 of the Draft of a Penal Code for North German Confederation written by Karl Maria Kertbeny. This pamphlet advocated the repeal of Prussia’s sodomy laws.

Thus homosexuality is not a new phenomenon. Even instances of homosexuality are available in Hindu Mythology. The literature drawn from Hindu, Buddhist, Muslim, and modern fiction also testifies the presence of same-sex love in various forms. Ancient texts such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality. Also there are reports that same-sex activities are common among sannyasins, who cannot marry. Thus instances of homosexuality are available in historical and mythological texts world over and India is not an exception to this.

The Cultural residues of homosexuality can be seen even today in a small village Angaar in Gujarat where amongst the Kutchi community a ritualistic transgender marriage is performed during the time of Holi festival. This wedding which is being celebrated every year, for the past 150 years is unusual because Ishaak, the bridegroom and Ishakali the bride are both men.

Thus the history is filled with evidences proving the existence of homosexuality in past. Whereas in the past 10 years world over, for the lesbian and gay rights, we find that the legal initiatives have shifted from the right to be privately sexual, that is the right to have same-sex relationships at all, to the right to be individual civic subjects, protected from discrimination in the work place and in the provision of services, toward the right to have relationships given status by the law. This shift in rights-focus, from decriminalization, to civil protection, to civil recognition is, not entirely a linear one. Thus in recent years a number of jurisdictions had relaxed or eliminated laws curbing homosexual behavior.

Indian Society and Homosexuality :

In India, so far no such progressive changes have taken place as regards social and legal recognition and homosexuals remain victims of violence in different forms supported by the state and society. In India from a scattered group of a few hundred, homosexuals are at present ten crore strong and growing community evolving its own hip and happenings. They are weaving there way from metros into semiurban societies both online as well as offline. This number is gradually increasing with more and more such people coming out of the closet. While Delhi and Mumbai (with five lakh gays each) and, to a lesser extent, Bangalore and Calcutta are the hub of the Indian gay movement, people from smaller towns in Gujarat, Maharashtra and Bihar are also coming out.These Indian gays are talking live in chat rooms,looking for soul mates, falling in love, having sex on the net and crossing cities to be with each other in real world.

This shows that homosexual relationships are not unheard of in India, but they generally exist in the country’s larger cities where people can be more open about their sexuality. A number of cities and larger towns, such as Karnataka, Delhi, Mumbai, Calcutta, Bangalore, Hyderabad, Pune, Chennai, Patna, Lucknow, Akola, Trichi and Gulbarga, had a number of resources for gays, lesbians and transgender communities that include – help-lines, publications/newsletters, health resources, social spaces and drop-in centers. In recent past the homosexual community of Calcutta, Mumbai and Banglore also hosted the gay pride march. All the above instances show that the homosexual community in India is visible and is gradually becoming vocal in their demand.

Statistics of LGBT Community in India :

In India, according to the census of 2011, there were 4.9 lakh people that identified as the third gender. However, activists estimate the correct number to be six or seven times higher than what is mentioned. The literacy rate of the third gender is just 46%. The employment rate of the third gender is 38%. It is also estimated that among the total population of homosexuals, around 7% are affected by HIV.

The Census of 2011 also showed state wise data of the third gender. Among the different states, Uttar Pradesh has the greatest number of third gender population. The percentage of third gender population are as follows :

StatePercentage Of The Third Gender Population
Uttar Pradesh28%
Andhra Pradesh9%
Maharashtra8%
Bihar8%
West Bengal6%
Madhya Pradesh6%
Punjab2%

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. The despotic law was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. So this law was nothing but a residue of the orthodox Victorian morality which had no place in a democratic country like India.

However, it took more than 70 years and almost 2 decades of the long legal battle to scrape down this old age law that had become a weapon to harass and exploit all those who didn’t conform with the traditional binary of sexuality and gender. But before proceeding to understand how the current laws in India, even after the scrapping of Section 377, are insufficient in securing basic human rights to the LGBT community in India. Let us first trace back the history of the LGBT rights movement in India, discussing some landmark Judgements and their impact on the LGBT Rights movement to have a comprehensive discussion further.

Naz Foundation vs. Government of NCT, Delhi –

The case was filed by an NGO based in Delhi called Naz Foundation, which works on the issue of HIV/AIDS. They filed a writ petition arguing that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. It interefrese with equal treatment as well as the right to Life and Liberty. They submitted that the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “sexual orientation”.

In its 2009 decision, the High Court found in favour of the NAZ Foundation and accepted its arguments that consensual same-sex sexual relations between adults should be decriminalised, holding that such criminalisation was in contravention of the Constitutional rights to life and personal liberty, equality before the law and non-discrimination.

The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class. Public animus and disgust towards a particular social group or vulnerable minority, it held, is not a valid ground for classification under Article 14.

Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15.  The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts.

The Court did not strike down Section 377 as a whole. The section was declared unconstitutional in so far it criminalises consensual sexual acts of adults in private. The Court concluded that:

“Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It disproportionately affects them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution”.

The Landmark judgment given by Delhi High Court in 2009 stated that Section 377 violates Article 14, 15, and 21. The court concluded that Section 377 does not distinguish between public and private acts, or between consensual and non-consensual acts. The judgment was restricted to adults when Section 377 also applied to minors. Section 377 had permitted the harassment of LGBT people in law.

Suresh Kumar Koushal vs. Naz foundation –

The Supreme Court, in this case, reversed the judgment of the Delhi High Court and held that Section 377 does not violate the constitution and is therefore valid. The Supreme Court reasoned its judgment on several grounds.

First, it held that all laws enacted by Parliament are presumed to be valid under the Constitution. This means that in order to hold a law to be invalid, it must be shown, through evidence, that the law is violating the Constitution. The Supreme Court held that there is not enough evidence to show that S.377 IPC is invalid under the Constitution. The Court held that there is very little evidence to show that the provision is being misused by the police. Also, just because the police may be misusing a law, does not automatically mean that the law is invalid. There must be something in the nature of the law itself that is unconstitutional.

According to the Supreme Court, the law can be implemented without misuse. It was also argued before the Supreme Court that because S.377 applies to certain sexual conduct, it essentially means that all forms of sexual expression by LGBT people would be unnatural. This would mean that any sexual conduct by such people would be illegal. Therefore, S.377 prohibits all sexual expression of LGBT persons.

The Supreme Court disagreed with this argument and held that S.377 speaks only of sexual acts and does not speak about sexual orientation or gender identity. This would mean that even heterosexuals indulging in acts covered under S.377 would be punished. Therefore, the section does not target LGBT persons as a class.

Further, the Supreme Court held that the Delhi High Court in its anxiety to uphold the so called rights of LGBT persons had relied on cases from other countries. They are of the opinion that cases from other countries cannot be directly used in the context of India. Therefore, important cases from South Africa, Fiji, Nepal, USA etc. where homosexuality was decriminalized was not taken into account by the Supreme Court.

Laws are presumed to be valid therefore the responsibility of changing laws is with the parliament. In this case, parliament is free to consider deleting or changing S.377. The Supreme Court also said that despite so many years the Parliament has not changed the law in spite of having ample opportunities to do so.

In reviewing the reading down of the Section 377 by the High Court, the Supreme Court stated that the High Court had overlooked the fact that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and that over the last 150 years, fewer than 200 persons had been prosecuted under Section 377, concluding from this that “this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” In light of the above factors considered, the Supreme Court reversed the decision of the Delhi High Court and upheld section 377.

It concluded that “Section 377 does not suffer from the vice of unconstitutionality” with no further elaboration. The judges noted that whilst the court found that Section 377 was not unconstitutional, the legislature was still free to consider the desirability and propriety of deleting or amending the provision.

National Legal Services Authority v. Union of India –

The transgender community in India has been the worst sufferer of exploitation amongst the whole LGBT community due to their degraded social, educational and economical status. These people have never been considered as a part of society and have always been subjected to exploitation, ostracisation, humiliation and violence either in the hands of society or the authorities in power. The constant rejection and not having access to resources, these people often resort to beggary or prostitution, making them more vulnerable to discrimination, STD’s and crimes such as human trafficking but the 2014 Judgement of the Supreme Court 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.

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:

  • 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.
  • The Supreme court further directed the Government of India to treat the members of “Third Gender” as an economically and socially backward class.
  • 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.
  • 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”.

In simple words, it means that the court recognised the difference between both the gender and biological components of sex. The court defined biological characteristics to include genital, secondary sexual features, chromosomes etc. but defined gender attributes as one’s self-image i.e. an individual’s deep emotional or psychological sense of sexual identity and character which is not restricted to the binary sense of male and female but can lie on a broad spectrum.

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

In the Suresh Kumar Koushal V. Naz Foundation judgement when the Naz Foundation argued before the Supreme court that Section 377 of IPC violated the right to privacy, the Supreme court went on length giving a detailed account of constitutional jurisprudence and the evolution of the right to privacy. However, after establishing the vital significance of this right, the court underestimated the right to privacy argument in the context of 377. The court recogonised that although there have been cases of misuse of Section 377 against the LGBT community putting their privacy and integrity at stake on the pretext of blackmailing, harassing or torture, and in general. But the same has never been the objective of the section as the section itself neither authorises nor condones such treatment and thus is not reflective of the fact that such law is beyond the vires of constitution.

However in K Puttaswamy V. Union of India case, (popularly called as Aadhar judgement) Justice Chandrachud’s opinion featured a section titled “discordant notes.” It basically dealt with two Supreme court judgements. The first was about the infamous case of Additional District Magistrate, Jabalpur v S.S. Shukla which upheld the denial of basic fundamental rights while the second part referred to the Koushal case rejecting the rhetoric of the “so-called” rights of the LGBTQ community.

Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to privacy. Puttaswamy decision notes also registered the criticism about minimis hypothesis principle used in the Koushal judgement and stated that the minuscule population of LGBT cannot be the ground to deprive them of the basic fundamental rights and such curtailment of the fundamental right cannot be held tolerable even when a few, as opposed to a large number of people, are subjected to hostile treatment.

Navtej Singh Johar V. Union of India

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.

The Supreme court agreed to refer the issue to a larger bench and heard several petitions in relation to it. The Government further stated that it will not interfere and will leave the matter to be decided in accordance with the wisdom of the court. Arguments were advanced that section 377 violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination.

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

  • 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.
  • 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.
  • 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.
  • The court also heavily criticised the Koushal judgement and called it irrational, arbitrary and manifestly unconstitutional.
  • 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.
  • 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.

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.

  • 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.
  • 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. Thus, stipulating different levels of punishments for the same nature of crime only on the basis of gender identity is inherently discriminatory, arbitrary and against the equal protection clause.
  • 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.
  • 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.

Conclusion:

After having such a comprehensive discussion about the evolution of the LGBT rights movement in India and understanding the relevance of various judicial pronouncements, we are in a position to proceed towards the understanding of how these judgments will shape the future of the LGBT rights movement in India.

Homosexuality is as natural as heterosexuality. The rights given to the LGBT community have been furthered however their social status in terms of the discrimination and harassment faced by them has yet no seen much change. It is not a mental disease or an abnormal condition and should not be interpreted as a crime. It is simply a matter of identity and sexual inclinations which cannot be guided by law or society. It is in our hands that we provide them with the respect and rights they deserve as humans. It is imperative to make society aware of their rights.

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 very important to educate people about LGBT rights. Human rights are natural rights which are inalienable, indestructible and are conferred upon everyone since birth. It is essential that people take note of the fact that homosexuals are not sick, they are not aliens, their sexual orientation is perfectly in tune with the dictate of nature.

LGBTQ rights should be recognised as part of human rights. Non Recognition of same-sex marriages, not allowing adoption, guardianship, surrogacy, IVF, not having access to safe and LGBT inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21, 29. Further, discrimination solely on the grounds of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, Air force Act.

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.

References :

https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/

http://www.legalservicesindia.com/article/1979/Homosexuality—The-Rights-of-LGBT.html

https://www.helplinelaw.com/national-and-social/LGBTQ%20/rights-of-lgbtq-persons-in-india-%C3%A2%E2%82%AC%E2%80%9C-evolution-and-comparison.html

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