This Article is written by Parinita and Nishant Chandra from Chanakya National Law University, Patna. This article talks about the LGBT+ community’s problems and perils LGBTQI rights cases that brought transition for this community.
India is a patriarchal society where the mindset and thoughts of most people are conservative. The conservative thinking is prevalent in the higher age group that constitutes almost 54% of the Indian population. Though the Supreme Court of India granted recognition to certain rights of the Lesbian, Gay, Bisexual, Transgender (LGBT+) community but they are still looked down upon in society and suffer from several social issues. A basic right such as the right to adopt a child is not given to them. In many countries, the rights enjoyed by heterosexual couples are not granted to homosexual couples. This leads to discrimination and thus, they cannot enjoy an equivalent social status in society. The LGBT+ community often hides their sexuality due to the fear of stigma. Children of Transgender are often disowned by their parents for maintaining societal prestige.
In 2015, a survey was conducted by Ipsos Group S.A. in 23 countries in which India had the fifth-lowest support for same-sex marriage. Only 29% of the Indian population supported same-sex marriages. In 2016, another poll by the International Lesbian, Gay, Bisexual, Transgender and Intersex Association was conducted. In which only around 35% of the Indian population voted in favor of legalizing same-sex marriage. According to a survey of the Varkey Foundation, only the lower age group of people from 18 to 24 years, who were educated, approved of same-sex marriages.
The mindset of people is improving with time. The LGBT+community may be considered as a social taboo in the conservative society but nowadays the youth realizes what sexual orientation and gender identity mean and has assimilated the terms in a broad sense.
The concept of LGBT+ is not an outcome of modernization rather it was prevalent also during ancient times. Homosexuality finds its reference in various Hindu texts such as the Rig Veda and also in the famous text of Kamasutra. It is mentioned in the famous Rig Veda, “Vikriti Evam Prakriti” which means that what we see as unnatural is also natural.
Status in the Military
In India, though section 377 has been revoked but that doesn’t permit members of the LGBT+ community to join the Indian Army. The Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957 have their own laws. According to provisions of the Army Act, 1950, a person charged under section 46 of the said Act is guilty of disgraceful conduct of a “cruel, indecent or unnatural kind.” This section would still be applicable as the laws of the army are somewhat different from the laws for the civilians and the LGBT+ are still considered immoral.
The U.S.A has been one of the most recent countries which uplifted the ban on the LGBT+ community from joining the Military. The nation previously followed the policy of “Don’t ask, Don’t tell” but this policy has been repealed in 2010.
- Navtej Singh Johar &Ors. v. Union of India Thr. Secretary Ministry of Law and Justice.
The Apex Court in this case overturned the judgment given in the case of Suresh Kumar Kaushal & Anr. v. Naz Foundation & Ors. Wherein, it was held that Section 377 of the Indian Penal Code does not suffer from unconstitutionality. This clearance to Section 377 was given in contradiction to the judgment in the case of Naz Foundation v. Government of New Delhi &Ors.
The Supreme Court in this case gave a very wide interpretation of Article 15 and 16. As Articles 15 and 16 prohibit discrimination based on sex and not gender, the Supreme Court by its judgment also incorporated discrimination based on gender identity in the context of Article 15 and 16. This means a member of the LGBT+ community who may not be a biological man but identifies himself to be a man is also protected from discrimination. In the case of Navtej Singh, the Court stated, “The expression ‘sex’ used in Articles 15 and 16 is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”
- Naz Foundation v. Government of NCT of New Delhi &Ors.
Naz Foundation, a Non-Government Organization in Delhi instituted a case in Delhi High Court on the ground that section 377 of the Indian Penal Code violates the fundamental rights granted by the Constitution of India. According to this Section, having carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life. This law utterly affected the gay community. They faced persecution, abuse, and harassment from society. The Naz Foundation argued in the Court that Section 377 violates Articles 14, 15, 19, and 21. These Sections affect the right to liberty granted under Article 21 of the Indian Constitution and also Article 15 should not be read restrictively but should include sexual orientation.
The Court in this case held that section 377 violated Article 14, 15, and 21 of the Indian Constitution. The Court laid down that the section does not differentiate between an adult and minor and also no distinction is made between consensual and non-consensual acts. Thus, such criminalization in the absence of evidence of harm seemed arbitrary and unreasonable.
The judgment of Naz Foundation kindled huge controversies and also many appeals were made to the Supreme Court challenging the judgment. Subsequently, the judgment given in the case of Suresh Kumar Kaushal & Anr.v. Naz Foundation &Ors overruled the decision in the case of the Naz Foundation.
- National Legal Services Authority v Union of India
This case is of tectonic significance in the lives of Transgender. Something exceptional happened in this case that brought a ray of hope in the life of Transgender. Back in the days only two genders were given official recognition. It was much later that the third gender came to be legally recognized. The Supreme Court in this case created a third gender for the community of Transgender. Earlier the community while stating their gender had to write either male or female but after this judgment, they can state themselves as the third gender.
The Supreme Court also gave certain directions to the Government of India and directed the Government to treat transgender as a socially and economically backward class. This was done to eradicate the discrimination faced by the community so that they could have equal opportunity for availing education and employment.
A ray of hope was shown in the life of the LGBT+ community when the Supreme Court on 2nd February 2016 decided to review the criminalization of homosexual activity. The Apex Court held that the right to privacy is an inherent right.
In August 2017 the Supreme Court unanimously ruled that the Right to Privacy is an inherent and fundamental right under Article 21 of the Constitution of India. The Court also held that sexual orientation is a matter of privacy that should not be interfered by the Government.
Transgender Persons (Protection of Rights) Bill, 2019
The Transgender Persons (Protection of Rights) Bill, 2019, was introduced after the 2019’s general election. The Bill got approval on the 10th of July by the Parliament of India. The Bill clearly defines transgender as someone “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jogta“.
The Bill aimed to set up a “National Council for Transgender” and was meant to advise the Union Government on various issues and policies for the protection and benefits of the transgender. It aims to provide protection to transgender from discrimination in the field of education and from various other deprivations.
Over the years the LGBT+ community has expanded and the spectrum spans LGBTTQQIAAP. It stands for Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Intersex, Asexual, Ally, Pansexual. In a society where heterosexuality is the only accepted orientation and homosexuality is considered as an aberration and immoral, the rights for the LGBT+ community have come a long road of improvisation.
1 Indian Demographics, worldometer, (Jun 10, 2020, 7:56 PM), https://www.worldometers.info/demographics/india
2 The Personal and the Political: Attitudes to LGBTI People Around the World, ilga world, (Jun 10, 2020, 8:14 PM)
3 Young people and free speech, The Economist, (Jun 10, 2020, 8:26 PM), https://www.economist.com/graphicdetail/2017/02/15/young-people-and-free-speech
4 Navtej Singh Johar& Ors. v. Union of India, (2018) AIR SC 4321 (India).
5 Suresh Kumar Kaushal& Anr.v. Naz Foundation & Ors., (2014) 1 SCC 1 (India).
6 Naz Foundation v. Government Of NCT Delhi, (2009) (160) DLT 277 DB (India).
7. National Legal Services Authority v Union of India, (2014) 5 SCC 438 (India).