LGBTQ+ RIGHTS

Article 21[1] of the Indian Constitution guarantees every individual Right to Live with Human Dignity and Respect. So, has not been the case with the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer and others) Community in India who have been subject to cruelty and harassment.

6th September, 2018 was a day of Independence for the LGBTQ+ Community as it was the day on which the Supreme Court of India in the case of Navtej Singh Johar vs Union of India partially struck down Section 377 of Indian Penal Code, 1860. A 200-year-old British Colonial law that criminalized same sex relationship.

Section 377 of IPC,1860 states:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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 section.

Now, same sex couples have a legal right to cohabit and manage their own affairs without any fear of prosecution.

The legal battle for the LGBTQ+ Rights began with the Naz Foundation vs Government of NCT of Delhi, 2009[2]

A Public Interest Litigation was filed by Naz Foundation Trust, a non-governmental organization (NGO) working in the field of HIV prevention among homosexuals, in Delhi High Court challenging constitutionality of Section 377 of Indian Penal Code, 1860.

The Delhi High Court dismissed the petition. The Naz Foundation approached the Supreme Court of India against the decision of the Delhi High Court.

The Supreme Court decided that the Naz Foundation had the legality and sent the case back to the Delhi High Court for reconsideration.

The petitioner argued that Section 377 of Indian Penal Code, 1860 violated the Article 21 (Fundamental Right to Life and Liberty, Right to Privacy and Dignity, Right to Health), Article 14 (Right to equality)[3], Article 15 (Right against Discrimination)[4] and Article 19 (Freedom of Expression)[5].

In July, 2006, the National AIDS Control Organization (NACO) also filed an affidavit saying that section 377 acted as an obstruction to HIV prevention efforts.

Delhi High Court ruled that section 377 of Indian Penal Code, 1860 was violating basic fundamental rights enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution.

Suresh Kumar Koushal vs Naz Foundation, 2013[6]

After the Delhi High Court Decision in the Naz Foundation Case, 15 Special Leave Petitions (SLPs) were filed by many faith based and religious groups to consider the constitutionality of Section 377 of Indian Penal Code, 1860.

Division bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay overturned the Delhi High Court’s previous decision. The Supreme Court ultimately found that Section 377 IPC does not violate the Constitution and dismissed the writ petition filed by the Respondent.

Navtej Singh Johar V. Union of India[7]

5 well known figures of LGBT community – Bharatanatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed a fresh writ petition for scrapping Section 377 of IPC, 1860.

On 6th September, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code. LGBT individuals are now legally allowed to do consensual intercourse. 

The court also heavily criticized the Koushal judgement and called it irrational and unconstitutional.

The Supreme Court in its judgement said that Section 377 violates the rights to life, dignity and freedom of personal choice under Article 21, Article 14, Article 15 and Article 19 of the Indian Constitution.

The Transgender Persons (Protection of Rights) Bill, 2019[8]

In 2014, Supreme Court in the case of National Legal Services Authority vs Union of India[9] recognized the rights of Transgender person and their right to decide their own gender identity.

In 2015, Siva, member of parliament introduced a private member’s bill on Transgender Persons’ right. The bill was passed by the Rajya Sabha but was not discussed in the Lok Sabha.

In 2016, government introduced its own bill in Lok Sabha to protect the Transgender Community’s right. It was criticized by the community and activists. The bill was sent to the Parliamentary Standing Committee. In 2017, the committee gave its report which was not accepted by the government.

On 19th July, 2019 Minister for Social Justice and Empowerment – Mr. Thaawarchand Gehlot introduced the Transgender Persons (Protection of Rights) Bill, 2019 in Lok Sabha.

This bill was introduced to protect the rights of the Transgender Community and prohibiting their discrimination in matters relating to education, employment, healthcare etc. This bill also says that the government will take various steps for the welfare and upliftment off Transgender Community.

It also establishes National Council for Transgender Person (NCT).  The Council will provide suggestions to the central government for the betterment of Transgender Community and study the impact of various policies, legislation in regards to transgender persons. It will also help in solving problems of transgender persons.

However, this bill has been rejected by the Transgender Community as it violates their Fundamental Right.

Drawbacks of the Bill:

  1. For a person to be classified as a “Transgender” he/she will have to undergo a sex reassignment surgery and apply for a certificate from District Magistrate.
  2. If any person sexually abuses any Transgender, he will be punished for only 2 year. Whereas if there is any sexual abuse is with a women the punishment extends up to 7 years.
  3. Bill is silent on reservation in education and employment for the LGBTQ+ community.

Conclusion

However, even after the passing of many landmark judgment, LGBTQ+ community still faces discrimination like they do not have the right for adoption, surrogacy. Same sex marriage has not yet been recognized under Indian Legal System. Although, government has introduced a bill to protect the LGBTQ+ community but it has proved to be futile. As they further suppress their freedom to live freely.

It is very important to educate and make people aware of LGBTQ+ rights. Government should amend existing laws or make new laws on same sex marriage, adoption, surrogacy, reservation in educational institutions etc. for LGBTQ+ community.


[1] https://indiankanoon.org/doc/1199182/ (Last Visited on 20th August, 2021 at 11:55 AM)

[2] 160 Delhi Law Times 277

[3] https://indiankanoon.org/doc/367586/ (Last Visited on 20th August, 2021 at 11:55 AM)

[4] https://indiankanoon.org/doc/609295/ (Last Visited on 20th August, 2021 at 12:15 PM)

[5] https://indiankanoon.org/doc/1218090/ (Last Visited on 20th August, 2021 at 12:25 PM)

[6] Civil Appeal No.10972 of 2013

[7] AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016

[8] http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf (Last Visited on 20th August, 2021 at 2:22 PM)

[9] WP (Civil) No 400 of 2012

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