ABSTRACT
It was in 2018, when people belonging to LGBTQ community got a major relief as it was declared that consensual sexual acts between two homosexual individuals is not a crime. Despite this the stereotypical mindset of the society could not be changed. People belonging to LGBTQ community have been treated different from other. They had faced lot of discrimination from society as well as their families. The Indian penal ode had specific provisions for people who were attracted towards same sex. It was in the case of Navtej Singh Johar v. union of India, when the Hon’ble Supreme Court decriminalized a part of section 377 which decriminalized consensual same sex sexual activity and it was no more considered as and offence.
However, under section 377, a non-consensual sexual act is still considered as an offence. Hence only decriminalization is not sufficient for society nor for people who belong to LGBTQ community. They still lack societal and legal status. This research work aims to reflect status of LGBTQ people in India and to spread awareness among people that people who belong to lgbtq community are not abnormal or different.
Keywords- LGBTQ Community, Fundamental Rights, Discrimination, Homosexuality, Decriminalization
INTRODUCTION
The rights of people belonging to LGBTQ community in India are subjected to debate and controversy in recent years in India. The Constitution of India does not explicitly mention sexual orientation or gender identity, and there are no laws that specifically protect LGBTQ people from discrimination. However, there have been some positive developments in the recent years.
Article 14 of the Indian Constitution ensures right to equality before law to all the persons. A specific provision of Indian Penal Code, which was there in force for 158 years was made unconstitutional in the year 2018, however it couldn’t still change the mindset of the society. LGBTQ people in India are still facing discrimination in various aspects including employment, housing, and healthcare. Moreover, general public is also unaware regarding the issues of LGBTQ community. The LGBTQ community in India continues to fight for their rights and for a more just and equitable society. They are working to raise awareness regarding LGBTQ issues, to challenge discrimination, and to create a more inclusive society for all.
The LGBTQ community in India is a strong and spirited community. They are making progress in their fight for equality, and they will not give up until all LGBTQ people are treated with dignity and respect.
RESEARCH METHODOLOGY
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the status of LGBTQ people in India. Secondary sources of information like newspapers, journals, and websites are used for research.
REVIEW OF LITERATURE
- Oscar Wilde’s “The Picture of Dorian Gray” (1890) – This novel is known for exploring the themes of homosexuality and hedonism. In this work the protagonist makes a bargain by the method of selling his soul in exchange of eternal youth and beauty. When the protagonist becomes extremely corrupt, his portrait starts to show his true nature, revealing the hideousness of his soul.
- Radclyffe Hall’s “The Well of Loneliness” (1928) – This is another work of literature that describes story of a lesbian woman who tries to find place in society which is extremely hostile to homosexuality. This novel was banned in various countries upon its publications, but now it has been considered a classic of lesbian literature.
- James Baldwin’s “Giovanni’s Room” (1956) – This novel has explained the themes of homosexuality and masculinity in the post Worl War 2 America. In this the protagonist named David, who is a young American man living in Paris falls in love with an Italian bartender named Giovanni. However, here David was afraid to come in terms with his sexuality, and his fear ultimately leads to tragedy.
HISTORICAL BACKGROUND
PRE-COLONIAL ERA
Prior to the British Rule, there were numerous opinions regarding homosexuality. Various cultures and faiths have diversified degrees of tolerance towards homosexuality. A significant part of India was under the rule of Mughals from Sixteenth to Eighteenth Century, also accepted homosexuality to a degree. However, other restrictions, such as one that forbade males engaging in same-sex sexual conduct in public, criminalized homosexuality.
It has been seen that in the pre-colonial period in India, homosexuality was tolerated in India. Though there were various thoughts regarding LGBTQ community in India during the pre-colonial era.
COLONIAL ERA
Section 377 of the Indian Penal Code was introduced by British Colonial Government in 1860. This law criminalized all “unnatural offences” between men, including same- sex sexual activity. Section 377 remained in place for over a century, and it was used to persecute and imprison LGBTQ people.
The British colonial government also introduced other laws that discriminated against LGBTQ people. For example, the Criminal Tribes Act of 1871 classified hijras, a third gender community, as criminals. This law made it difficult for hijras to find employment and housing, and it made them vulnerable to violence and harassment.
The colonial era was a time of great hardship for LGBTQ people in India. They were subjected to discrimination and persecution, and they were denied their basic human rights. However, there was also some resistance to the colonial government’s policies. For example, there were a number of hijra uprisings against the Criminal Tribes Act.
POST INDEPENDENCE ERA
Post to independence of India in 1947, there was some debate regarding repeal of Section 377 of the Indian Penal Code. However, the law remained intact, and it was used as a weapon to prosecute LGBTQ people. In the 1990s, there was a growing movement to repeal Section 377. This movement gained momentum in the 2000s, and it eventually led to the Supreme Court of India ruling that Section 377 was unconstitutional in 2018.
In the post-independence period, India has seen a rollercoaster ride for LGBTQ rights. While there was an on-going movement to decriminalize Section 377 and some progress in raising awareness of LGBTQ issues, Section 377 continued to be used for many years and LGBTQ people faced discrimination and harassment. The decriminalisation of homosexuality in India in 2018 was seen as a major step forward in the fight for LGBTQ rights. However, the decriminalisation of homosexuality did not do justice to the LGBTQ community as they are still facing discrimination due to a lack of awareness about the LGBTQ community.
DECRIMINALIZATION OF HOMOSEXUALITY
The Indian judiciary played a vital role in decriminalizing Section 377 of the Indian Penal Code. But it must be kept in mind that the entire Section 377 is not decriminalized. There are several landmark judgements given by various High Courts and Supreme Court which have clearly supported homosexual activity as natural one, not as an offence. The Sodomy Law that is Section 377 which punishes the carnal intercourse with life imprisonment, has been finally struck down. Here are the judicial precedents with regards to decriminalization of Section 377:
a) National Legal Service Authority v. Union of India: In the above case of India the Supreme Court of India gave decision that the people who belong to LGBTQ community have the equal right like any other person and also, they are entitled to equal protection by the Constitution. Here in this case the court also ordered to decide gender on the basis of psychological sex rather than biological sex.[1]
b) Puttaswamy Case: In this the Supreme Court of India held that right to privacy is one of the most important rights of a person and which is given to all the people by the virtue of article 21 of the Indian Constitution. This right can be exercised by every person irrespective of their gender or sex. It also held that the people who belong to the said community have the right to choose their partners as per their own choice and the have the right to choose anyone they like.[2]
c) Navtej Singh Johar Case: The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.[3]
CURRENT LEGAL FRAMEWORK
CONSTITUTION
India’s existing legal system for LGBTQ rights is currently developing. Sexual preference or gender identity are not mentioned specifically in the Indian Constitution. However, there are a few clauses that might be regarded as defending LGBTQ people’s rights.
Article 14 of the Constitution guarantees equality before the law to all citizens. This could be interpreted to mean that LGBTQ people are entitled to the same rights and protections as other citizens.
Article 15 prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. This could also be interpreted to protect LGBTQ people from discrimination.
Article 21 guarantees the right to life and liberty. This could be interpreted to include the right to privacy, which could be relevant to LGBTQ people’s right to express their sexual orientation or gender identity.
However, there are also some provisions in the Constitution that could be used to justify discrimination against LGBTQ people. For example, Article 376 of the Indian Penal Code criminalizes rape, and it does not explicitly mention same-sex sexual activity. This could be interpreted to mean that same-sex sexual activity is illegal.
The Supreme Court of India has not yet ruled on the constitutionality of discrimination against LGBTQ people. However, in a 2018 ruling on Section 377, the Court held that the right to privacy is a fundamental right that includes the right to sexual autonomy. This ruling could be interpreted to protect the rights of LGBTQ people.
PENAL CODE
The Indian Penal Code (IPC) is a federal law that was enacted in 1860. It is the main criminal code in India, and it covers a wide range of offenses, including murder, theft, and rape. Section 377 of the IPC criminalized all “unnatural offences” between men including same-sex sexual activity. This law was used to persecute and imprison LGBTQ people.
However, in 2018, the Supreme Court of India ruled that Section 377 was unconstitutional. This was a landmark decision that paved the way for greater acceptance of LGBTQ people in India.
OTHER RELEVANT LAWS
- The Constitution of India: The Constitution of India guarantees equality before the law to all citizens, regardless of their sexual orientation or gender identity. This could be interpreted to protect LGBTQ people from discrimination in employment, housing, and other areas of life.
- The Protection of Human Rights Act, 1993: This law prohibits discrimination on the basis of sexual orientation and gender identity. It also provides for the establishment of a National Human Rights Commission to investigate and redress human rights violations.
- The Indian Penal Code: The Indian Penal Code criminalizes a number of offenses that are disproportionately committed against LGBTQ people, such as assault, rape, and forced prostitution.
- The Domestic Violence Act, 2005: This law protects victims of domestic violence, regardless of their sexual orientation or gender identity. It provides for a number of remedies, including restraining orders, financial assistance, and counselling.
- The Transgender Persons (Protection of Rights) Act, 2019: This law provides for the recognition of transgender people’s rights, including the right to self- identification and the right to education, employment, and healthcare.
CHALLENGES FACED BY LGBTQ PEOPLE IN ACCESSING JUSTICE
- Discrimination: LGBTQ people continue to face discrimination from the society, moreover they face discrimination from police officers, judges, lawyers and other people of the legal systems. Many times, they are denied justice and are treated different from other people.
- Lack of awareness: There is still a lack of awareness about LGBTQ issues among the general public and among law enforcement officials. This can lead to discrimination and a lack of understanding of the needs of LGBTQ people.
- Financial barriers: LGBTQ people may face financial barriers to accessing justice. They may not be able to afford a lawyer or to pay for other legal expenses.
- Fear of retaliation: LGBTQ people may be afraid to come forward and report crimes or seek legal help, due to fear of retaliation or stigma. They may worry that they will be outed or that their families or friends will find out about their sexual orientation or gender identity.
- Language barriers: LGBTQ people who do not speak the majority language may face language barriers in accessing justice. They may not be able to understand the legal process or to communicate effectively with lawyers or judges.
SUGGESTION AND CONCLUSION
In India the government could make rules and regulation that would help in protection of civil rights of LGBTQ individuals, which could include legislations against discrimination in the field of employment, housing and healthcare. Government can also introduce initiatives such as providing counselling and support to LGBTQ individuals. Various businesses and other organizations that are operating in country can adopt policies that are more tolerant towards people who belong to LGBTQ community. It may include forbidding discrimination on the basis of gender identity or sexual orientation.
LGBTQ people in India are still facing number of challenges ranging from denial of employment to denial of housing facilities due to their gender identity. These people are often victim of gender of physical and verbal abuse. They are often denied basic healthcare services and they are also forced to conceal their identities. This community is still trying to overcome these obstacles in numerous ways, which includes raising awareness on the issues that are being faced by LGBTQ community and advocating on their behalf, and by combating discrimination through legal method and by demonstrating them in public. This can be done by developing community and support for LGBTQ people. However, the community has made some progress in their fight for equality but still there is much work to be done. By working together, we can create a more just and equitable society for all LGBTQ people.
AMRISHA TRIVEDI
MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD
[1] National Legal Services Authority v. Union of India (2014) SCC 438
[2] K.S. Puttaswamy and Anr. V. Union of India ((2017) 10 SCC 1), (Puttaswamy I)
[3] Navtej Singh Johar & Ors. V. Union of India thr. Secretary Ministry of Law and Justice ((2017) 10 SCC 1)