This Article is written by Ashi Gupta, a graduate of B.B.A. LL.B (Hons.) from Guru Gobind Singh Indraprastha University, Delhi.
Society is an organised form of a collection of people. This organisation, depends on the norms set by such society. Norms are nothing, but certain touchstones set by society in order to confirm consistency amongst diverse beings. But as nature would have it, people are diverse, and trying to contain then with unnecessary rigidity, leads to nothing but disorder and injustice. Similar is the story of sexuality in India, post-British invasion.
Generally, biological sex is confused with gender; which is why it is important to understand the individual meanings that these terms hold. Biological sex is determined by chromosomes of a person, i.e., it is something that is determined by birth. However, people born intersex may get to know about their sex at the stage of puberty. On the flipside, gender is social constructionism, where traits of masculinity or femininity mark a person’s gender.
Now, just because a person is born in a certain way biologically, it doesn’t mean that such a person will identify with the ‘societal traits’ assigned to such gender! Such people are termed as “transgender”, whereas, conventionally speaking, people whose biological sex matches their gender identity, are known as “cisgender”.
Speaking of sexual orientation, it is neither determined by one’s biological sex nor, gender identity. It is how one person’s gender identity relates to others’ gender identity or identities, based on sexual attraction.
Talking specifically of India, Indian metaphysics is filled with stories of homosexuality and genders others than the two binary ones’. Capturing the zeitgeist of the Mughal empire, this is when homosexuality became a crime under Fatawa-e-Alamgiri, sharia followed as the legislature by the Mughals. This was so, even though there are historical shreds of evidence of some Mughal rulers being bisexuals themselves. Since hardly any of these laws held ground in current Indian laws, hence it was British colonialism after which India witnessed the trend of homophobia and hence criminalization of sexual acts that it ensues, in the name of, “unnaturalness” as per the Victorian morality. This import is what leads to years of struggle which is still going on to this day in some way or the other.
BACKGROUND OF LEGAL ACCEPTANCE
The ebb and flow of legal battles of the LGBTQI+ community were initiated in India with the efforts of AIDS Bhedbhav Virodhi Andolan, a group, which filed a petition challenging the constitutionality of Section 377 of IPC in 1994. Despite the petition not meeting fruitful ends, it revealed how unpopular opinions about homosexuality were largely being spread, by way of blocking distribution of condoms in Tihar jail by saying that the same leads to homosexual behaviour. This reason was being used as it was during this time that false information like AIDS is prevalent in same sex was being widely spread.
The first momentous PIL was filed by Naz Foundation in 2001, as a product of instigation caused by a raid of police in Lucknow, where some people were arrested on being suspected as homosexuals when they were distributing condoms as a part of HIV campaign. In 2004, the said petition was declined by the High Court of Delhi, lack of Locus Standi being the ground. The petitioner appealed in the Supreme Court in 2006, where the petition was allowed to be taken forward and was sent back to the High Court.
In 2009, the High Court of Delhi passed a landmark judgment, wherein it interpreted that Section 377 violated Article 14, 15, and 21 of the Constitution. The Court said, that there can be no right to life, without dignity and privacy, which is clearly violated by section 377. Besides, the Court also said, that this section leads to unreasonable discrimination and hence is violative towards the right to equality. And most importantly, Court widened the interpretation of Article 15 and said, the term “sex” under Article 15, doesn’t only mean gender, but, is inclusive of sexual orientation as well. The reading down of Section 377 by the High Court was however short-lived.
The happiness of those who’d started coming out and those who were in support of this cause was overturned by the Supreme Court in 2013 by its verdict on Suresh Koushal v. Union of India. The Court in this case held that it’s on the Parliament to decriminalize a criminal offence and the Courts cannot interfere with the same. Herein, the Court also explained that Section 377 identifies certain acts which constitute an offence irrespective of one’s orientation and identity. It said, that those who indulge in carnal intercourse unnaturally cannot in any way say that section 377 is arbitrary and irrational in nature. Quite amusingly, the Court further said, that the LGBT community constitutes a minuscule fraction of the country’s population with less than 200 people being punished in more than 150 years; and hence holding this law ultra vires of Constitution isn’t sound enough.
This judgment stroke like a thunderbolt especially on those who’d come out after the High Court judgment. But the bright side of the whole situation was that the movement gained momentum like never before. Furthermore, in 2014, the judgment of the Supreme Court in the case of National Legal Services Authority v. Union of India (“NALSA”), wherein, the Court gave express recognition to the unequivocal right of the transgender community over Fundamental Rights; prompted further legal actions against Section 377.
To add another feather to this hat of legal evolution, D.Y. Chandrachud J., in the case of Puttaswamy v. Union of India (2017), held that the reasoning on the basis of “minuscule fraction” in Suresh Kaushal was erroneous. He said that,
“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of Constitutional rights does not depend upon their exercise being favorably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of Constitutional protection.”
This judgment went on to hold that, right to life impliedly includes the right to privacy, which further includes the right to have intimate relations of one’s choice and right to sexual orientation and gender identity.
After years of struggle, in 2018, a 5 judge bench of Supreme Court unanimously decriminalized that part of section 377 that made consensual sex between two adults a criminal offence, in the name of “unnatural sex”. In Navtej Singh Johar V. Union of India, the court, throwing light on the golden trinity of rights (Article 14, 19 and 21) enshrined in part 3 of the Constitution, held as follows. -:
- Article 14 –Section 377 does not qualify the test of intelligible differentia and rational nexus as formulated in the case of State of Bombay V. F.N. Balsara. Criminalizing of sexual acts of two consenting adults, only on the basis of their sexuality, forms neither a part of intelligible differentia nor rational nexus.
- Article 19 –Violation of freedom of expression, merely on the ground of public order, decency and morality does not hold any ground u/s 377; as it criminalizes private consensual acts, which in no way can harm the public in abovementioned ways.
- Article 21 – Section 377 violates privacy, dignity, and decisional autonomy. Such restriction on making decisions regarding one’s sexuality stops an individual from attaining personhood in the true sense and hence is violative of the right to life and personal liberty.
The court said that “it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of Constitutional morality and not by societal morality.”
While the judgment was pivotal, there still exist some areas which need immediate attention, in order to shape our society in a way, the authors of this judgment and many others visualised.
THE GREY AREAS: ROOTS & PANACEA
In this section of the article, the author has relied on empirical and doctrinal research to highlight the areas of concern and their probable solutions. The same are as follows. -:
- Support of Allies – Although section 377 has been decriminalized, but there still remains a void in the face of ignorance on the societal front. This unacceptance is majorly due to the faulty, or, no representation of the community in areas that have a good outreach. In India, for example, there needs to be a change in sex education, depiction in Bollywood, and daily soaps, in order to bring a change in the regressive mindsets of people. As, even though there are changes in metropolitan cities, but one can’t be sure of treatment in less developed areas.
- No Concept of Raising a Family –Persistence of lack of development on the civil front is not touched upon hithereto. Even after duly recognizing the community, there haven’t been many efforts to amend laws in a way, that they include welfare in areas of marriage, adoption, etc.
There are personal laws in India about marriage along with a Special marriage Act. Under section 5 (iii) of the Hindu Marriage Act, 1955, for a marriage to be solemnized, the bride should be 18 and the bridegroom should be 21 years of age. The term “bride” and “bridegroom”, clearly indicate that only the binary genders are recognized for marriage. The same is the case with section 4(c) of the Special Marriage Act, 1954. Muslim law, though uncodified, but is indicative of the same.
This issue ensues down to adoption as well. As, as per section 14 (3) & (4) of the Hindu Adoptions & Maintenance Act, 1956, where a bachelor or an unmarried girl adopts a child, there future wife or husband, respectively, will be deemed to be the child’s step-parent. Non-specification of same-sex partners makes this law vague as well. On the other hand, adoption per se isn’t allowed in the case of Muslims.
- No Job Security – With the kind of mindset that still exists, an LGBTQI+ person can never be ensured of job security and a safe environment, in case their sexuality is revealed. And if such a situation does take place, it’ll be really tough to prove the same, given that any employer can easily get away with handy excuses. Contrarily, if laws are made against harassment at the workplace or, for job security, then they can be highly misused by both, people of the community and others.
These are just the most highlighted and apparent issues besides which there are many ancillary issues which need attention as well, for the people of LGBTQI+ to get out of these abnormal societal conditions and lead a normal life.
With the gradual changes that have come in way of the LGBTQI+ community, there is a positive change if we compare the scenario with what it was until the decriminalization. But what also needs to be noted is that, even though people have started coming out of the closet, they still look for safe spaces before doing so. They still hold the fear of bearing the brunt in the worst ways possible, just because someone thinks that they are contagious elements or for the simple reason of not wanting to recognise their identity.
Though all this will take a lot of time to change to the roots, even for that, there has to persevering actions on the part of the government and we, as a society, to stop the dull side of history from repeating itself and all the wrongs that can still take place. As, it is not the concept of LGBT+ that is foreign to our society, but, it is the concept of being phobic to it, that is foreign.
It is mandated in our Constitution, for it to keep progressing and so should the society with it and vice versa. As utopian as it may seem, it is only when there will be no categorization of the people of this community, that they can be said to be accepted in the minds in the full sense. Till that time, it’s a bit important to maintain the categorization, till society normalises and there is no risk of suffering on such grounds. And to attain this, it is on the society to work and to be willing to work towards this, not just the government.
- Do You Know The Difference Between Sex and Gender?,THE ADVOCATE, (Sep. 18, 2017), https://www.youtube.com/watch?v=NpYlE_EjX9M .
- Stan Rastogi, The Unsettling Truth Of How Homophobia Became Prevalent In India!,BINGE CULTURE, (Jan. 23, 2020), https://www.bingedaily.in/article/say-adios-to-superwoman-as-lilly-singh-lets-the-iconic-name-go.
- SuyashiSmridhi, 22 Years On, AIDS Bhedbhav Virodhi Andolan: The Struggle Continues, FEMINISM IN INDIA, (Mar. 5, 2020), https://feminisminindia.com/2020/03/05/20-years-aids-bhedbhav-virodhi-andolan-struggle-continues/
- Jayna Kothari, Section 377 and Beyond ,https://clpr.org.in/wp-content/uploads/2019/06/Section-377-and-Beyond.pdf
- Section 377 | Homosexuality in India, FINOLOGY LEGAL, (Sep. 12, 2018), https://www.youtube.com/watch?v=1GGsUFrcuQY
- Navtej Singh Johar v. Union of India | CLAT PG 2020 | Legal Case Analysis, SAMBHAV LAW, (May 26, 2020), https://www.youtube.com/watch?v=Oilpfer73no
- Article 14 Fundamental Right Indian Constitution, FINOLOGY LEGAL, (Aug. 16, 2018), https://www.youtube.com/watch?v=YEAoixRez_Q
- Navtej Singh Johar& Ors. V. Union of India, P. (Crl.) No. 76 of 2016; D. No. 14961/2016, Decided on: Sep. 6, 2018
- MarkandeyKatju, Section 377 Verdict: Gay Marriage, Inheritance, Adoption Laws Unlikely; ‘Majoritarian’ View Will Keep State, Sc Away, FIRST POST, (Sep. 7, 2018), https://www.firstpost.com/india/section-377-verdict-gay-marriage-inheritance-adoption-legislation-unlikely-majoritarian-view-will-keep-state-sc-away-5134701.html
- The Hindu Adoptions And Maintenance Act, 1956, No. 78, Acts of Parliament, 1956, India