A Brief History:
Historically, same-sex members of the family and gender fluidity were prominently featured in historic texts and sculptures of India. The regulation criminalizing homosexuality became officially delivered to India in 1862 with the aid of using the British colonial rulers after they protected it under “unnatural offenses” in phase 377 of the Indian Penal Code. This regulation was formed to punish anybody who voluntarily had “carnal sex in opposition to the order of nature” with any guy or woman, persisted to be the largest obstacle to the whole expression of sexuality and personhood of LGBTQs in India even in the twenty-first century.
By this time, many nations had shed their colonial and archaic. It started with the Netherlands, which have become the first country to legalize homosexuality in 1811 itself. England too decriminalized homosexuality in 1967.
The Legal Battle
- National Legal Services Authority v. Union of India, 2014
During the year 2014, India took a big step closer to recognizing the rights of human beings belonging to the LGBTQ community. The Supreme Court in the case between National Legal Services Authority v. Union of India mentioned transgender as the “third gender.” Following this judgment, transgender folks who have been formerly pressured to state themselves as “male” or “female” ought to legally understand themselves as transgender or the “third gender”.
- Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., 2017
The second big improvement toward spotting the rights of LGBTQ people in India came through the Supreme Court’s judgment in K.S. Puttaswamy v. Union of India, 2017, in which it held that the right to privacy is an essential right under Articles 14, 19, and 21 of the Constitution of India.
- Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, 2018
Finally, on 6th September 2018, the Supreme Court in Navtej Singh Johar v. Union of India struck down the part of section 377 of the Indian Penal Code (IPC) which criminalized “consensual sexual conduct among adults of the same sex” and consequently legalized consensual intercourse among people of the same gender. This turned into the end result of a long felony war that commenced in 2001.
A Brief Timeline of the Legal Course Followed by Section 377 of IPC
- During the year 1862, Indian Penal Code is enforced. Homosexuality officially will become a criminal offense under section 377 of IPC.
- During the year 1950, Constitution of India is enforced. It ensures the right to equality, right to freedom of speech and expression, and right to life and personal liberty as Fundamental Rights under Article 14, Article 19(1), and Article 21, respectively.
- During the year 2001, Naz Foundation v. Govt. of NCT of Delhi “A writ petition is filed withinside the Delhi High Court challenging the constitutionality of section 377 of IPC. During the year 2009, The Delhi High Court pronounces its judgment in Naz Foundation v. Govt. of NCT of Delhi that Section 377 violates the Fundamental Rights enshrined under Article 14, Article 19(1) and Article 21 of the Constitution.
- During the year 2013, Suresh Kumar Kaushal & Anr. v. Naz Foundation & Ors. The Supreme Court overturns the Delhi High Court judgment in Naz Foundation v. Govt. of NCT of Delhi and reinstates section 377 of IPC.
- During the year 2014, – National Legal Services Authority v. Union of India, The Supreme Court legally acknowledges transgender as the “third gender” for the first time; announces that third gender people are entitled to be treated ‘equally’ and with ‘dignity as assured with the aid of using the Fundamental Rights under the Constitution.
- During the year 2017, Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., The Supreme Court holds that the right to privacy is protected as a Fundamental Right under Articles 14, 19, and 21 of the Constitution.
- During the year 2018, Navtej Singh Johar & Ors. v. Union of India the Secretary Ministry of Law and Justice, The Supreme Court partially moves down section 377 and decriminalizes homosexual intercourse among consenting adults.
While the judgments stated by the Supreme Court in 2014, 2017, and 2018 are considered landmarks for both in terms of their expansive analysis of the constitutional rights and in empowering LGBTQ persons, they were still within some limits. In the constitutional setup of India, the law-making power rests with the Legislature. The enactment of the Transgender Persons (Protection of Rights) Act, 2019, by the Legislature changed into alleged to defend the rights of the transgender community via way of means of prohibiting discrimination against them in employment, education, healthcare, and access to government authorities or private establishments.
However, it was rejected by the Trans community because it had numerous clauses that had been destructive to their Fundamental Rights, such as, the required certificates of identification recognizing them As “transgender” to be issued via way of means of a district magistrate simplest after their intercourse reassignment surgery. Further, the Act made no provisions to ensure equality of opportunity in various places as directed by the Apex Court in its National Legal Services Authority v. Union of India judgment.
While the constitutions of Mexico, New Zealand, Portugal, South Africa and Sweden offers protection based on sexual orientation, India nonetheless lacks a basic regulation that recognises the safety of rights of transgender persons or criminalizes any harassment or discrimination against them. Besides permitting same-sex marriages, adoption and surrogacy, nations which include Bolivia, Ecuador, Fiji, Malta and the United Kingdom have taken a lot of steps in advance and enshrined the right to equality for citizens on the basis of sexual orientation and gender identification in their constitutions. India, however, has no law that would make clear the rights of people from the LGBTQ community with appreciation to marriage, adoption, surrogacy and health.
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