This article has been written by Vartika Jain and Shalini Mishra.

Abstract

Sexuality keeps on being a standout amongst the most challenged issues in present day politics, to such an extent that it is relatively difficult to discuss modern liberal democracy, with all its ideological stuff, cases to human rights, and individual opportunities and freedoms, without tending to the issue of sexuality.

This paper is throws light upon LGBT issue in India, the concept of homosexuality, followed by its history in India, mind-set of society regarding homosexuality, prevailing discrimination against people belonging to LGBT community.

The aim of this research paper is to critically evaluate the legal aspect of homosexuality in India, its current scenario and made a comparative study of earlier position of LGBTs rights with that of its current situation.

Introduction

Being heterosexual, homosexual, bisexual, or transgendered is not just about sexuality. It’s about complex lifestyles that have an impact on every aspect of a person’s life, including the emotional, psychological, social, and professional. The universal declaration of human rights include right to life, privacy, equality before law, etc and certain freedoms like freedom of speech and expression, freedom from discrimination and violence, etc. Therefore, on account of being human, these rights and freedoms shall also be vested upon people belonging to LGBT community. But, it is often seen that LGBT persons fear, face torture, imprisonment, etc. they are deprived of their rights. Although, there are health differences between transgender and non- transgender people, but it should be realized that there is no shame being a gay, lesbian, transgender or a bisexual and at the end of the day. When it comes to India, homosexuality is considered to be a crime under section 377 of Indian Penal Code, 1860. The researcher is of the view that all such provisions which deprive LGBT persons of their basic human rights shall be abolished.

Concept of LGBT 

A person’s sexuality is not necessarily their predominant defining characteristic, nor one that they would necessarily use to define themselves. The term LGBT refers to Lesbian, Gay, Bisexual and Transgender. ‘Lesbian’ refers to woman who is emotionally, sexually and romantically attracted to other woman. ‘Gay’ refers to a person who is emotionally, sexually and romantically attracted to other person of same gender. ‘Bisexual’ refers to a person who is emotionally, sexually and romantically attracted toward more than one gender, though not simultaneously.

Sexual orientation refers to sex to which one is sexually and romantically attracted. Transgendered persons question the gender identity they were biologically assigned at birth and reject it either partially or completely. The term transgendered may refer to cross-dressers, transsexuals, or intersexual persons (this latter term is now used instead of the word hermaphrodite.)Transgender people can be heterosexual, homosexual, or bisexual in their sexual orientation. Every person, regardless of sexual orientation, gender identity and gender expression are entitled to their rights. LGBT rights are not special rights, but the same human rights that should be afforded to all individuals.

History of discrimination against Transgender

“When we allow violence against some, we enable violence against all.” 

  –DaShanne Stokes

The historical reference of homosexuality can be seen in Puranas, Vedas, Religious books, etc. Hinduism has opposing views on homosexuality i.e., it believed that romantic love is only possible between man and woman and that sex between two man or two woman is due to lust and lust is wrong. Therefore, homosexuality is considered to be a serious crime. When it comes to Islam, Muslim Shariat law considered homosexuality as a heinous offence. The codification o laws related to homosexuality began in 1860 under Indian Penal Code which considered homosexuality as an unnatural offence for which punishment had been prescribed. Although homosexuality prevails in India, since the time unknown, this issue started rising only after 19th century when first gay magazine Bombay Dost started in late 1980s and lesbian collective of Delhi named Sakhi articulated the issue in public form as an issue related to the violations of Human Rights.

Legal Aspect (Earlier)

When it comes to legal discrimination, an ambiguous section 377 of Indian Penal Code is the most prominent one which comes out from the legislation made during British colonial period. It is still continuing in Indian statute books but removed from British statute books. Section 377, IPC, 1860 reads as follows:

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

The law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men and other groups at risk of the disease. This is also applied to heterosexuals as consensual sex of adults whether oral sex or anal sex, at present, treated as unnatural offence as it is against nature (as it does not help in reproduction) and punishable under Section 377 of IPC. But so far no case has been registered against heterosexuals engaging in such sex which clearly shows that injustice has been done with sexual minorities, for the sole reasons that their (sexual minorities) beliefs, values, etc. differs from the mainstream. 

A case that is worth examining is National Legal Service Authority versus Union of India (2014) 5 SCC 438, in which Supreme Court recognized the rights of Transgender people with the aspect of sexual orientation. 

The Supreme Court concluded that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the transgender community.

Need for decriminalization of Section 377 of IPC

Section 377 is a colonial law which aims to destroy personal choice and snatches away the right to choose one’s partners who constitute a minuscule section of the society. Section 377 reads as follows that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [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.” This section penalizes for three different subjects which are:

1. If a man has carnal intercourse with another man.
2. If a woman has carnal intercourse with another man.
3. If a person has carnal intercourse with any animal.

This section gives an unreasonable perception of the society which is based on vague, irrational and a stereotyped notion that sexual activity is only related to procreation but if this kind of sexual activity is considered unnatural then methods of contraception should be restricted as well. This infringes upon many basic fundamental rights which could remove this section from Indian Penal Code. This section on the face of it shows inequality towards the sexual minorities and infringes upon article 19(a), (b) and (d) which prohibits people to express them, to associate with people of their choice and also restricts them to move freely in the Indian Territory because of the bias they go through due to their sexual preferences. In a petition filed by Navtej Singh Johar it was contended by the appellant that the state can’t put two adults into jails who are involved in consensual unnatural sex. 

Yogyakarta principles were developed at a meeting of the International Commission of Jurists, the International Service for Human Rights and human rights experts about human rights in the areas of sexual orientation and gender identity, published as the outcome of an international meeting of human rights group. It states in its introductory part that human rights violations targeted toward persons because of their actual or perceived sexual orientation or gender identity constitute a global and entrenched pattern of serious concern. They include extra-judicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities, and serious discrimination in relation to the enjoyment of other human rights.

Section 377 of The Indian Penal Code shall be decriminalized because:

• It is a violation of Right to Privacy, Right to Equality, Right not to be discriminated on the grounds of sex, gender, caste, creed, etc. and Right to Life as one can’t restrict the freedom of consenting people as far as their freedom doesn’t hurt anyone. 
• It is difficult to determine what type of sex two consenting people are having in private.
• The British people, who incorporated this law in India, have removed it from theirs. Hanging on to the archaic law is just a reaffirmation that we aren’t quite done with our post colonial hangover.
• Sexuality is not something that should be legislated against.
• Although decriminalizing it won’t end discrimination, yet it will open a window of acceptance and achievement for LGBTs. 

Present Scenario

Today, in India there has become more acceptance towards the LGBT community but their struggle is still not over. While we see some LGBTs accepting their sexuality, there still remains a greater portion of LGBT groups who are not free to openly express their gender choices. Social media groups and corporate initiatives have also come forward with increasing awareness on LGBT rights, but condition of gay men is more upbeat than for other third gender persons.

Indian families have their own ways of dealing with the gender identity of their kin. Within the boundaries of family, schools or any part of this society acceptance of sexuality of LGBT group is still a struggle. In some parts secret honour killings are planned which compels these people to run without money or social support. In other parts lesbians are subjected to corrective rapes and which in most cases are penetrated by their own family members.

In a nutshell gays, lesbians, bisexual individuals, and transgender people have not accepted and understood as a gamut of the human condition. Instead they are stereotyped as deviants and they have also been suffering from marginalized social status. 

Legal Developments

Amendment in Section 377 of IPC

Section 377 states that “Whoever voluntarily has carnal intercourse against the order of nature with any man; woman or animal shall be punished with 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”. This colonial era section under IPC, imitated a 16th century law called the Buggery Act, criminalized consensual gay sex as it was considered against the order of nature.

A Petition was filed before the SC by dancer Navtej Jauhar and four others in 2018 to reassess the judgment passed in the case of Naaz foundation before the Delhi HC. The five judge bench led by the then CJI Deepak Mishra diluted Section 377 to exclude all kinds of consensual sex as it was arbitrary and irrational. SC in its judgment mentioned that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.”Justice Chandrachud noted that right to privacy and the protection of sexual orientation are fundamental rights which lie at the core of rights enshrined under Article 14, 15 and 21 of the Constitution. The SC decriminalized 377 to the extent that it would not exclude unnatural offences against minors and animals.

The Transgender Persons (Protection of Rights) Bill, 2019

The Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 which prohibits discrimination against Transgender with respect to education, employment and the ability to rent or buy property. This Bill mandates for legal gender recognition in a two step process:

It requires an individual to apply for “Transgender Certificate” from the District Magistrate of their residence. This is also applicable in case of a person’s self-declared identity.

Consequently, the certificate holder can apply for a “change in gender certificate,” which signals to authorities to change their legal gender to male or female with a proof of medical surgery, issued by a hospital office.

The Bill violates Nalsa v. UOI, judgment of SC which recognized the transgender people belonging to third gender who are equally entitled to enjoy all fundamental rights. In addition to this, certain provisions of this bill are contrary to international standards of gender recognition such as UN High Commissioner for Human Rights, World Professional Association for Transgender Health and the Asia-Pacific Transgender Network. The right to recognition as a person before the law is guaranteed in numerous international human rights conventions, and is a fundamental aspect of affirming the dignity and worth of each person. Therefore, the legislation should ensure equal fundamental right of privacy and freedom of expression to all persons irrespective of their race, caste, sex or religion. 

Consequence of Discrimination

Our constitution has recognized several equality rights for the different sections of society and it recognizes the rights of gender as well. Indian constitution explicitly states that in Article 14 no state shall deny equality before the law and equal protection before the law within the territory of India, Article 19(a) states that right to freedom of speech and expression, Article 21 states that protection of life and personal liberty in which also gives right to live with dignity. These are the basic fundamental rights that are denied to some people because of their sexual orientation. Even these basic fundamental rights are denied to some people because of their sexual orientation.

Discrimination is faced by LGBTQ at various levels, be it at home or be it outside the home. The struggle of people in this community starts from the moment they are born. Families are ashamed to reveal the identity of their family members and they treat it as disease and perversion and accordingly treat them badly. The discrimination against the heterosexual people is fairly common. It is very difficult for a person to express their preferences just because it is unacceptable by their family members. A study found that 73% of Indian men surveyed said they would hit their sons if they found out they were gay.

Outside the home, they experience severe conditions and are ostracized because of their sexual orientation be it at workplace, schools, colleges or any other public place. They are subjected to derogatory and hateful remarks as they are unable to voice their opinions, incapable of cultural representation and they also lack economic opportunities provided to the general public. They are displaced as their family members do not accept their sexual identity because of the societal taboos relating to their sex. “Hijras, khotis, gay men, and lesbians are rejected by society – often at a very early age and in a violent manner– because of their femininity (in the case of men) and the threat they represent to the patriarchal society imposed by British law and social norms. Homophobia is no more a cultural or religious issue than any other part of the gender agenda.” They are not even provided with equal opportunities at workplace in the European Union (EU), 13% of LGBT people felt they experienced discrimination while job hunting because of their sexual orientation.

Conclusion

A person’s choice of partner should not be restricted because of his or her sexual orientation. It not only restricts their basic fundamental rights of equality and privacy but it also takes away their right to live with dignity enshrined within the right to life and liberty. In India, just because a person is born out the two major genders they are ostracized and are they rejected on the grounds that they belong to a third gender. There is no use of introduction of anti-discrimination bill by Shashi Tharoor if people are discriminated on the basis of their preference. In the case of Navtej Singh Johar & Ors. v. Union of Ministry of Law and Justice Secretary it was also noted that social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. 

It will remain a taboo if we continue to disrespect and not treat them equal to us. It’s high time that LGBTQ should be freed from the shackles of orthodoxy and bridge a huge gap between the community and disgrace the regressive laws and embrace progressive laws.

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