Jun 4, 2021
Legal LGBTQ+ landmarks in India
Equality
It’s been a long road…
The fight for LGBTQ Rights in India is very old, and contrary to trending social stigma, our peoples’ have had a very amiable and inclusive queer history that is far older than Victorian morality.
Let’s look at some of the more recent events surrounding the topic.
NAZ Foundation vs. NCT of Delhi
Background
2001: Lucknow police booked a number of men under suspicion that they were homosexuals, some of whom were supposedly running a sex racket. Charges were dropped after being proven false, and Naz Foundation with The Lawyers’ Collective together filed a petition before the Delhi HC challenging the constitutional validity of Section 377 of IPC.
Judgment
2009: Delhi HC 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.
Suresh Koushal vs. NCT of Delhi
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
After an eight-year struggle, the LBGTQ community and allies found some temporary reprieve, but on 11th December 2013, the SC re-criminalised homosexuality. Justices GS Singhvi and SJ Mukhopadhaya held that LGBTQ+ persons were a ‘minuscule minority’ and so didn’t deserve constitutional protection, saying that Section 377 didn’t suffer from the vice of unconstitutionality.
The silver lining was that the judgment rekindled a new wave of LGBTQ+ activism in India and resulted in greater public discourse about LGBTQ+ Rights in India.
National Legal Services Authority (Nalsa) vs. UoI
Background
The transgender community in India has suffered the most in terms of degraded social, educational and economical status. The SC was assessing the status of the trans-community for the purpose of betterment.
Judgment
2014: the SC legally recognised the transgender community as a third gender. This brought the community access to public health, education, employment, reservation, and other welfare schemes under government policies, provisions and support frameworks. It also recognised the difference between biological components of sex (genitals, secondary sexual characteristics, chromosomes, etc.) and gender (one’s self-image), allowing trans-people to reassign their gender without undergoing sex reassignment surgery. However, recently, a major blow to this judgment came in the form of the Transgender Persons Bill, 2018.
K.S. Puttaswamy vs. UoI (Aadhar Judgment)
Background
With the Koushal case as background, the SC recognised that 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, this has never been the objective of the section as the section itself neither authorizes nor condones such treatment and so isn’t reflective of the fact that such law is beyond the vires of the Constitution.
Judgment
2014: Justice Chandrachud observed that sexual orientation falls within the wide ambit of the Right To Privacy and Puttaswamy’s decision notes stated that the basic fundamental rights cannot be curtailed even for a “minuscule minority”, leaving them prone to hostile treatment.
This acknowledgment is important because:
It was ignored that consent has no significance in Section 377. So, the numbers can’t be proof of the extent of use of this section because they cannot indicate the instances of consensual sexual encounters. This established that the real impact of the law is not only restricted to the prosecution or punishment but includes an indirect impact that causes the creation of a hostile environment for the LGBTQ+ community. This ruling citing Article 21 and the Right to Privacy sparked hope for the striking down of Section 377 amongst the queer communities and their allies.
Navtej Singh Johar vs. UoI
Background
After the overruling of the Delhi HC judgment in 2013, homosexuals were branded criminals yet again. The protests supporting LGBTQ+ Rights drastically increased in India with some high profile names including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej Singh Johar among many others coming forward and filing a petition before the SC challenging the constitutional validity of Section 377 of IPC.
The govt. said they wouldn’t interfere. The SC referred the case to a larger bench and heard several petitions related to it.
Judgment
On the 6th of September 2018, the SC announced its verdict:
The court unanimously ruled that Section 377 is unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity. It decriminalised homosexuality saying that consensual intercourse between adults of the same sex/gender is a right of every individual. Section 377 is vague and doesn’t intelligibly define what is “natural” and what is “unnatural”, curbing freedom of expressing one’s sexual identity, i.e. Right to Freedom of Expression. Discrimination on the basis of sexual orientation is unconstitutional considering it is a natural phenomenon as proven by scientific, biological facts and that it is an integral part of self-identity. Invalidating it is equal to denying the Right to Life. That the LGBTQ+ community constitutes a minuscule section of the population isn’t a valid justification to deny them this Right.
The SC directed the govt. to create public awareness regarding LGBTQ+ rights, eliminate stigma, and make provisions/policies that deal with issues of mental health, dignity, privacy, right to self-determination and transgenders.
Transgender Persons (Protection Of Rights) Bill, 2019
This act’s objective is to protect the rights of the transgender community by prohibiting discrimination against them with regards to employment, education, healthcare, and access to government/private establishments. Unfortunately, it exposes them to institutional oppression and dehumanises them in the process.
The trans-community in India has vehemently rejected the bill citing that the bill infringes their fundamental rights and does not comply with the NALSA judgment.
What’s wrong with it?
It violates the Right to Privacy and to self-determine their identity that was previously upheld by the NALSA judgment. As per the new bill, legally changing one’s gender can be done only after embellishing proof of sex reassignment surgery certified by a District Magistrate. It prescribes 2 years punishment for any sexual abuse against the trans-community as opposed to the stipulated 7 years for the same crime against women. In this aspect, the bill’s justification for punishment against crimes of the same kind is arbitrary.
It removes their right to separate from violent familial environments to safer trans-community spaces. The only relief offered is rehabilitation centres.
The new bill creates no provisions in relation to providing any scholarships, reservation, LGBTQ+ inclusive curriculums, or ensuring safe inclusive schools and workplaces for the trans-community.
On one hand, the courts are taking progressive steps to empower and uphold the rights of the LGBTQIA+ community, and on the other hand, the legislature is invalidating the same rights. The judiciary and the government seem to constantly be at loggerheads with regard to issues pertaining to the LGBTQ+ community.
The way forward…
Society plays a huge role in upholding these rights. There are always vested interests, but the fruits of perseverance are beginning to show…
This is only the tip of the iceberg. Some of the things that are now being addressed are:
- Same-sex Marriage
- Adoption
- Guardianship
- Surrogacy
- Inheritance
- Protection against Workplace Discrimination
- Protection against Harassment in Educational Institutions
- Inclusive Sex Education
- Mainstream Media Representation
There’s much progress being made, and that gives us a whole lot of hope, but until the day our Constitution recognises and establishes the equal status of LGBTQ+ people in India, the fair and persistent struggle for recognition will continue.
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