LGBT COMMUNITY IN INDIA: IS THE FIGHT FOR THEIR RIGHTS YET OVER?

LGBT COMMUNITY IN INDIA
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About the Author:

Sakshi Devi is a law student in Army Institute of Law.

INTRODUCTION:

The phrase LGBT which stands for Lesbian, Gay, Bisexual and Transgender has been in existence since the 1990s. A Lesbian is a girl or woman who is sexually attracted to same-sex i.e., to girls and women, a man or a boy is called gay who is sexually attracted to other men or boys. The word bisexual is used to identify a person who is sexually attracted to more than one gender and Transgender is often used to connote the person whose gender identity is different from the sex assigned at the time of birth.[1]

The population belonging to this community has been looked down on by society for a long. And they are often subjected to harassment and discrimination even at the hands of their families, so much so that often they are evicted by their parents from their household. However, with them standing up for their rights, the situation has improved as compared to earlier times but a lot is yet to be achieved.

LANDMARK JUDGEMENTS THAT VINDICATED THE COMMUNITY TO A CERTAIN EXTENT:

  • Decriminalization of Homosexuality:

Section 377 of the Indian Penal Code, 1860 which criminalized homosexuality was added in the year 1864 during British Colonial rule. It punished voluntary carnal intercourse against the order of nature against any man, woman or animal with imprisonment extending up to 10 years and a fine also.[2] After the enactment of the Constitution of India, even though the right to equality was enshrined under Article 14 of the Indian Constitution, homosexuality remained a criminal offence.

Homosexuals’ fight for their rights started in 1992 with the first protest for gay rights wherein police arrest two men on the suspicion that they will indulge in homosexual acts. However, major developments in regard to homosexual rights started with series of judgements passed by the judiciary.

Naz Foundation v. Government of NCT of Delhi,[3] In 2001, Lucknow police detained some men on the intuition of them being homosexuals to charge them under section 377. After this incident, a petition was filed by NAZ Foundation, an NGO and lawyer’s collective in Delhi High Court challenging the constitutional validity of section 377 of the Indian Penal Code, 1860. In its judgement in 2009, Delhi High Court held sec. 377 to be violative of Art.14, 15, 19 and 21 of Indian constitution of adults who are engaging in unanimous sexual intercourse in private.

The struggle did not end here. Later on, in the case of Suresh Kumar Koushal v. NAZ Foundation,[4] An appeal was filed in the Apex Court against the decision of Delhi High Court decriminalizing homosexuality and on 11 December 2013 sec. 377 was re-criminalized by Supreme Court giving the reasoning that the LGBT community being a minuscule minority does not earn constitutional protection.

The judgement was criticized by the community and it further strengthened the LGBT movement in the country. Various protests were staged by gay activist groups against the judgement calling the day of judgement as black day.[5]After Koushal Judgement various petitions were filed which challenged the constitutional validity of sec. 377.

Thus, in the case of Navtej Singh Johar v. Union of India,[6] the issue was referred to be considered by a larger bench of the Supreme Court and judgement was finally delivered on 6th September 2018 through which sec. 377 was rendered unconstitutional being violative of Art. 14, 15 and 21 of the Indian Constitution and further homosexuality was decriminalized.

The court further ruled of sexual orientation being a part of self-identity, a negation of the same would amount to the denial of the Right to life and that the LGBT community being a minuscule minority is not a valid ground for repudiating their rights. Furthermore, Koushal judgement was also criticized by the court as being unjustifiable and unconstitutional.

  • Recognition of Transgenders as the third gender:

The transgender community in India is generally called by the names like Hijras, Kothis, kinnars and Aravani etc. They were never considered as a part of mainstream society which resulted in their oppression and discrimination. They were not given employment opportunities which led to them being forced to indulge in beggary. However, a 2014 judgement of the Supreme Court brought a glimmer of hope for them.

In  National Legal Services Authority v. Union of India,[7] hon’ble Supreme Court recognized transgender as the third gender. Certain guidelines were laid down to ensure basic human rights to the transgender community

  • Not recognizing the identity of the third gender was violative of Articles 14, 15,16 and 21 of the Indian Constitution.
  • The government was directed to recognize the third gender as being socially and economically backwards. Thus, policies are to be framed as per sec Article 15 and 16 in order to ensure equality of opportunity.
  •  The Transgender Persons (Protection of Rights) Act, 2019:

After seeing all sorts of discrimination happening with the transgenders and further to give effect to National Legal Services Authority Judgement, the bill was enacted which made various provisions for ending discrimination of community and bring it at par with mainstream society.

Definition of Transgender: Transgenders were defined in the Act as the person whose gender is different from the gender assigned at the time of birth.

Right of Residence: Earlier most of the time, the third gender was excluded from its household, but the bill made provision that they have the right to reside in their household and cannot be evicted therefrom.

Employment Opportunities: In matters related to recruitment and promotion, no discrimination shall be made in both government as well as private departments.

Right to Education and Healthcare facilities: No discrimination shall be made in educational institutions and from time to time steps must be taken by the government to provide proper healthcare facilities to transgenders.

National Council for Transgender Persons: NCT was established with an objective of advising the government to formulate welfare policies for the community and to listen to their grievances and solve them.

 STEPS TAKEN BY GOVERNMENT TO EMPOWER TRANSGENDER COMMUNITY:

Thus, after the National Legal Services Authority judgement and passing of the bill, various steps were taken by the government to empower the community.

National Portal: Social Justice and Empowerment minister launched a national portal to help the community to apply for identity cards and certificates online. And in case their application is rejected they were given an option to submit their grievances through the portal itself.[8]

First Transgender toilet: Uttar Pradesh government built the first transgender toilet which is a step forward for the exclusion of the transgender community in mainstream society.[9]

SWEEKRUTI: It is the scheme formulated by the Orissa government to protect the rights of the transgender community and ensure their participation in various activities in society and promote educational and employment facilities for them.[10]

Appointment at various posts: Sathyasri became the first transgender lawyer, Jyoti Mondal became the first transgender judge, Prithika Yashini set an example by being appointed as the first transgender police officer, Manabi Bandopadhyay as first transgender college principal and Shabi became the first transgender soldier.[11]

Apart from above-mentioned initiatives, various other initiatives are taken by the union as well as state government from time to time which has surpassed the earlier notion of transgenders being different from other sexes. They have made their mark on being appointed at various posts and have set an example for generations to come.

CONTEMPORARY ISSUES AND CHALLENGES FACED BY THE COMMUNITY:

LGBT community’s movement for their recognition does not come to an end with decriminalizing homosexuality or making laws for the transgender community. Are they given much recognition in society?  The answer is an obvious No. Apart from the de-criminalization of homosexuality and the passing of the Act to empower the transgender community, they will not come at par with others living in the society.

  • Denial of Right to Marry:

In Indian society, homosexuals are given the right to cohabit freely without any fear, however, they are not given any other rights. In the case of Lata Singh v. State of Uttar Pradesh,[12] the right to marry was held to be a part of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. The right to marry is also recognized internationally under Human Rights Charter.[13] LGBT community having different sexual orientation is no ground to deny the right to marry whosoever they want.

Recently, various petitions were filed with respect to same-sex marriage. In the first petition, it was contended that as homosexuality is decriminalized thus, provisions to be made to recognize same-sex marriage under the Special Marriage Act, 1954 as well as Hindu Marriage Act, 1955. The second petition was filed by women challenging the provisions of the Special Marriage Act to the extent it does not recognize same-sex marriage. Another was filed by two men marrying in the United States but were denied registration in India.[14] However, in response to the pleas, the Central government has responded by saying that same-sex marriage is not a fundamental right.[15]

  • Denial of Right to Adopt a Child:

As per Regulation 5(3) of Adoption Regulation, 2017, only a couple having two years of stable marital relation are allowed to adopt a child in India, which implies that homosexuals are not eligible for adoption since they are not given the right to marry as well. Moreover, the guidelines of The Central Adoption Resource Authority foreigners of same-sex marriage cannot adopt in India.[16]

 On the other hand, Same-sex adoption is legal in countries like Australia, Idaho, Puerto Rico, Georgia, West Virginia etc.[17] This shows that these countries have recognized the rights of homosexuals to a wider extent.

  •  Denial of Right to Inherit property:

Inheritance laws in India are governed by Hindu Succession Act, 1956 and there are other laws of respective religion and community. These laws make the distinction in two categories based on gender i.e. male and female, which implies that these laws are inapplicable to the transgender community as these laws do not recognize the third gender as such and to be eligible for inheritance, they are required to fit themselves in any of these categories. However, a different stance has been taken by the Uttar Pradesh government wherein it has allowed transgender people to inherit ancestral agricultural land by an amendment in UP Revenue Code.[18]

  • Discrimination against community:

Despite the passing of the Transgender Persons (Protection of Rights) Act, 2019 and the decriminalization of the homosexuality community response towards the LGBT community is not positive. They are still looked down on and discriminated in the society

As per 2019 the report of United Nations Educational, Scientific and Cultural Organisation, Educational opportunities are denied to the LGBT community in India because of harassment and bullying at school and International Commission of Jurists in its report cited non-access to toilets and uniforms being gender-specific, a reason of denial of educational opportunities to the community.[19]

In some parts of the country, lesbian girls are subjected to rape brought about by the members of their family itself, suicides of lesbians are rampant even in urban educated parts of the country. Further, the family of the LGBT community accept them only if they agree to behave like heterosexuals.[20] Apart from these instances, a lot of time members of the LGBT community are discriminated against even in the 21st century.

CONCLUSION

 “The Majoritarian views and popular morality cannot dictate Constitutional Rights” were the words quoted in the judgement of Navtej Singh Johar v. Union of India by hon’ble Supreme Court. If we go by the views of the majority of people or by norms of society, we will never be able to progress further. History is the witness that earlier majority was in favour of all the evil practices going on in the society.

If our historians would have relied on majority opinion, or practices prevalent in the society, these evils might not have been eliminated. Even after two landmark judgements of the Supreme Court recognizing the rights of the LGBT community, they still are not given the same rights as that of other sections of society. Concrete steps must be taken to eliminate stigma attached to the community so that they also can enjoy basic human rights.


[1] LGBT, Sexual Health (23 Feb.,2021), https://www.sexualhealthdg.co.uk/lgbt.php.

[2] $377, Indian Penal Code, 1860.

[3] Naz Foundation v. Govt. Of NCT of Delhi, 160 DLT 277 (2009).

[4] Suresh Kumar Koushal v. NAZ Foundation, 1 SCC 1 (2014).

[5] Priyanka Kotamraju, Gay activist groups erupt in protest over Apex court verdict on section 377, The Hindu, December 11, 2013.

[6] Navtej Singh Johar v. Union of India, 10 SCC 1(2018).

[7] National Legal Services Authority v. Union of India, SC 1863 (2014).

[8] Government Launches portal to help transgender community members in applying for I-cards, The Hindu, Nov.25, 2020.

[9] Uttar Pradesh’s First transgender toilet built in Varanasi, The Indian Express,Feb 18, 2021.

[10] SWEEKRUTI (A SCHEME FOR PROMOTION OF TRANSGENDER EQUALITY AND JUSTICE), SOUTH ASIAN TRANSLAW DATABASE, https://translaw.clpr.org.in/laws-policies-reports/odisha-transgender-policy-2017-dignity/.

[11] Indian Transgender people who were the first in the field, India Today, July 4, 2018.

[12] Lata Singh v. State of Uttar Pradesh, SC 2522 (2006).

[13] Anisa, Right to marry, Legal Service India.com , http://www.legalservicesindia.com/article/1001/right-to-marry.html.

[14] Central Government to Respond on pleas to recognize same-sex marriage, mint lounge, https://lifestyle.livemint.com/relationships/it-s-complicated/central-government-to-respond-on-pleas-to-recognise-same-sex-marriage-111610267787240.html.

[15] Abhinav Garg, No fundamental right to same sex marriage, says centre, The Times of India, Feb 26, 2021.

[16] Mukti Heliwal, On LGBTQ adoption and legal reforms, YKA , https://www.youthkiawaaz.com/2020/04/why-should-there-be-an-amendment-in-c-a-r-a-for-the-lgbt/.

[17] International Family Equality day, https://internationalfamilyequalityday.org/.

[18] Anupreet, Transgender People to get Rights to inherit agricultural land in UP, shethepeople , https://www.shethepeople.tv/news/transgender-people-rights-inherit-land/.

[19] Kyle Knight, Sec.377 is history but young LGBT Indians need concrete policies to protect them from bullying, Human Rights Watch , https://www.hrw.org/news/2019/06/24/section-377-history-young-lgbt-indians-need-concrete-policies-protect-them-bullying.

[20] Rashmi Patel, Being LGBT in India : Some home truths, mint mint, https://www.livemint.com/Sundayapp/sAYrieZdZKEybKzhP8FDbP/Being-LGBT-in-India-Some-home-truths.html.

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