In this research paper I even have attempted to discuss concept, nature of LGBT
humans, discrimination at the ground of sex in the society it consequences in
violation of their rights which includes fundamental rights and human rights. I
have also tried to provide attention on legal definition and its scope, lacunas,
problems and challenges before LGBT minority humans in India. The entire air of
secrecy and entirety of the conditions and the trials faced through this
The manner it has advanced and handled. By the olden society it is
controlled into the minds of individuals who still trust it to be some form of
mental illness or a crime. Bringing the perception that how India is working on
it and the way the citizens are managing the openness of this. People around the
world face violence and inequality on the idea of the way they look or who they
This limitations and socially undesirable stigmas be eliminated and this
vicinity be made a secure haven for all forms of humans and additionally rights
be equally disbursed among all here. The consistent pressure and eyes upon the
activities and the concept of LGBT makes a few small minded humans to place up
greater pressure upon them and make their living a hell out on earth.
one desires is to be understood and to live freely with head held excessive and
to get the affection they deserve. Human beings are humans they need to be
treated the identical and like. "I do not consider myself simply a friend to the LGBT community. I consider myself your family. And so I am doing what we need to
all do with our families: I am loving you. I support you, I absolutely accept
who you are." � Anne Hathaway
I am what I am, so take me as I am' - Johann Wolfgang von Goethe .
Shakespeare In one of his characters in a play says ―What's in a call? if we
name a rose by some other call, then additionally it would smell the same. This
word conveys that what genuinely matters is the important characteristics of the
substance and the fundamental traits of an entity. Similarly, humans can not be
differentiated or discriminated or denied Basic Human Rights, simply on the idea
in their sexual preferences.
The concept of human rights rests at the principal premise that each one people
are equal. It follows that all people have dignity and all people have to be
treated as equal. Anything which undermines that dignity is a violation because
it violates the precept of equality and paves the way for discrimination. Such
discrimination additionally violates the fundamental essence of the preamble of
the Indian Constitution which mandates justice and equality of popularity for
all of us in all spheres whether or not it's miles social, financial or
Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) rights in India have
developed in latest years. However, LGBTQ citizens still face sure social and
criminal problems compared to the people who do not belong to that community. It
is responsibility of the court to pass just and reasonable order, responsibility
of the Government to make sure that verdict reaches to the general public and
responsibility of the general public to welcome the decision of the court with
However, in regards to the Rights of LGBTQ+ people, despite the fact
that the Supreme Court of India in Navtej Singh Johar vs Union of India
judgement, 2018 stepped up by abolishing the a part of Section 377 of Indian
Penal Code which criminalized act of homosexuality, the Government and the
general public additionally failed to utilize the judgment to the fullest as
even after almost 30 Months of passing of the landmark judgment, the situation
in regards to LGBTQ Community has not improved much.
What Is The Meaning And Concept Of 'LGBTQ+'?
The term 'LGBTQ+' is used to denote following sects of people:
A lesbian means, a female who is sexually attracted to a female.
A gay means, a male who is sexually attracted to the male.
A bisexual person is someone who is sexually attracted to people of
It is a term used to define people whose gender identity and gender
expression, differs from that usually associated with their birth sex.
Queer is a term used to refer to sexual and gender identities who are
neither heterosexual nor cisgender (opposite of transgender). The term 'Queer'
in itself is a community as they generally go for using pronouns instead of
being restricted to, He, She etc.
- Sexual orientation:
This term is employed to explain patterns of emotional,
romantic, and sexual attraction and sense of non-public and social identity
supported those attractions. Sexual orientation exists with exclusive attraction
to the alternative or a similar sex. When a person's sexual and emotional
attraction is towards the individuals of a similar gender, it is termed
homosexual orientation. If attraction is towards opposite gender, it is known as
heterosexual orientation and if the attraction is towards each gender then it is
termed bisexual orientation individuals.
The '+' in 'LGBTQ+' signifies that the above list is not exhaustive it includes
other categories as well like Pansexual, asexual, Intersex etc.
History And Struggle Of LGBTQ + Minority In India(4)
- Pre-Colonial Era:
There are sort of historic Indian texts which
might be applicable to current LGBT causes. The Arthasastra, an historic Indian written
fabric on diplomacy, mentions an awesome sort of nonvaginal sexual practices
that, whether or not or now no longer carried out with a guys or women, had been
trendy to be punished with low grade of fine. Whereas gay sex wasn't sanctioned,
it truly become dealt with as a very minor offence, and some of different kinds
of heterosexual sex had been punished extra severely.
- Modern India:
In 1977, Shakuntala Devi revealed the number one look at of
intercourse in India. While convictions below Section 377 had been rare, with
out a convictions withinside the least for gay sex withinside the two decades to
2009,(5) Human Right Watch have suggested that the regulation become used to
bother HIV/AIDS prevention activists, additionally intercourse
employees/workers, guys who've sex with guys, and one of a kind LGBT .The
cluster of files display arrests in Lucknow of four guys in 2006 and some other
four in 2001. Homosexual sex become a crook offence until 2009 via way of means
of the distinctive feature of Sec 377 of the IPC, 1860. This additionally
declared it to be an offence for a person to voluntarily have "carnal sex in
opposition to the order of nature.
- 2009 - Present:
23rd February, 2012: the Union Home Ministry
of the UPA Govt.
replying to a Supreme Court observation, informed the Supreme Court that it
truly become in opposition to the decriminalization of homosexual intercourse.
"This is extraordinarily immoral and in opposition to the social order," the
Home Ministry informed the apex court. It stated that India's moral and social
values had been definitely one of a kind from the opposite countries, and for
this reason should not be managed via way of means of them. The SC reversed its
stand on twenty eighth February, 2012 declarative that there has been no
blunders in decriminalizing homosexual intercourse. This resulted withinside the
SC pulling up the Centre for over and over converting its stand at the problem,
"Don't create a mockery of the gadget and don't waste the courts time".(6)
Issues Faced By LGBTQ + Community
Even though we would call ourselves developed and modern however it is
disheartening to see the atrocities faced by people belonging to LGBTQ
Community. Some of the common issues which they face are:
- According to UNESCO Report of 2018, LGBTQ Children face lots of bullying in
colleges, schools etc. and also are discriminated. This act of bullying and
discrimination leaves a everlasting scar in their life and it often takes them
years to get out of that. (UNESCO Report, 2018)(7)
- If someone claim himself or is observed to be belonging to LGBTQ Community
then typically a bounty is ready for his or her Secret Honor Killings. Recently,
many people have grow to be sufferer of such honor killings.
- Women go through the most for belonging to LGBTQ Community as
while a girl claim herself as a lesbian or a bisexual, then the
family shows them to head for sanctioned corrective rapes wherein a
girl has sexual sex with a person with out her will to treat the
'Disease of Homosexuality'.
- LGBTQ People not only face discrimination in colleges and schools however this
threat does not cease even after the completion in their education, they're
additionally Discriminated when they get jobs as no company desires to hire
someone with a exceptional sexual choice as that concept does not cross well
with the society and is often questioned by other employees. Thus, they're not
able to get higher pay jobs and are stuck in the vicious circle of poverty.(8)
- Non-acceptability of LGBTQ isn't common in rural regions and additionally in
city families because families in city regions are more involved about their
repute in the society that they have a tendency to overlook their duties in the
direction of their children and often throw them out of the homes which will
prevent their social status after they discover that their infant belong to
- LGBTQ people are often thrown to correction facilities wherein they're
administered psychotic drugs as component of 'corrective remedy for
Homosexuality'. They get so addicted to those capsules that even after getting
out from the torture of correction centers, they discover solace in capsules and
different psychotropic materials and thereby, grow to be addicted to it.(9)
- People belonging to LGBTQ Community are often live Isolated from the society,
which cause them depression.
Legal Provisions And Constitutional Protection Of LGBTQ is a Minorities In India:
Right to equality
- Article 14 of the Constitution offers one and allan same status before the law
and an equal protection of laws inside the territory of India. The phrase �any
person‟ here means each individual, without any discrimination supported any of
the category which includes, caste, creed, religion, sex, etc.
- In the case of, National Legal Service Authority V. Union
of India (10), the interpretation of the word person was
widened and was held that Article 14 of the Indian Constitution
does not restrict the phrase individual and its
application only to male or woman.
Hijras/transgender persons who're neither
male/woman fall inside the expression person and, hence, entitled to legal
protection of laws in all spheres of State activity, which includes employment,
healthcare, education in addition to equal civil and citizenship rights, as
enjoyed by another citizen of this country. The transgender community falls
inside the purview of the Constitution of India and thereby they are entitled to
all of the rights as assured under the same.
Right To Life And Personal Liberty
- Article 21 of the Constitution of India reads as
follows: Protection of life and personal liberty � No person
will be disadvantaged of his life or personal liberty
besides according to procedure established through law."
Article 21 is the coronary heart and soul of the Indian
Constitution, which speaks of the rights to life and
personal liberty. Right to life is one of the primary
fundamental rights and now no longer even the State has the
authority to violate or eliminate that proper.(11)
- In the case of, R. Coelho V. State of Tamil Nadu(12 ),it
was said that, the right to choose one's personal
identification is one of the most important right under this
article to existence with dignity. The transgender groups
have a right to dignified life that's one among the most
essential aspects of Article 21 of the Constitution of
India. Recognition of gender identification presents the
popularity of their right to dignity and non-recognition
violates the identical, they want full right to specific and
live their life with out fear. Also, the right to
recognition extend to their protection.
Right To Privacy Of Lgbt Minority People(13)
The right to life and personal liberty consists of right to privacy. The
Constitution of India would not without delay provide the ideal to privateness
as a part of fundamental rights which is taken into consideration to be in a
part of basics rights. Hence right to privacy shouldn't be abridged.
Right Against Exploitation
Immoral activities like prostitution are normally seen down withinside the
society.(14) Everyone includes a right to non-public development, and this is
probably secured when there exists a right towards exploitation which creates a
free environment for an individual. Transgenders are the worst sufferers of
exploitation; because of their degraded economic status they indulge into
prostitution and different immoral activities and are normally seen as taboo by
the society. The aim behind this Article is to secure independence of a personal
identification by preventing exploitation of men by men under article 23.
Judicial Role In Protection And Promotion Of LGBTQ Community
Section 377 of the Indian Penal Code states "whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal shall be
Some Key Observations by SC
The SC ruling in effect decriminalized homosexuality in India.
- This was a colonial-era law that was at odds with modern notions of justice and equality of all humankind. Section 377 criminalised the act of private consensual homosexual sex between adults as well.
- Even some heterosexual acts considered "against the order of nature" are offences under this Section.
- The Supreme Court judgement in 2018 ruled that this Section's use against consenting adult homosexuality was irrational, arbitrary and not justified.
- After the ruling, Section 377 is applicable only to non-consensual sexual acts, sex with minors and bestiality. These are still criminal offences.
- The SC stated that Article 14 guarantees to every person equality before the law or the equal protection of the laws within the territory of India. Read more on the Right to Equality.
- The Court upheld the preeminence of constitutional morality by saying that equality before the law cannot be denied by according precedence to religious or public morality.
- The SC also took into cognizance the fact that many legislations and modern psychiatry do not consider homosexuality a mental disorder, and hence, it cannot be penalized.
- The SC also acknowledged that homosexuality was observed even in the animal world and this dispels the myth that it is against the order of nature.
- The SC also said that the 'Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity' ought to be applied to Indian law.
-- The Yogyakarta Principles were outlined in 2006 in Yogyakarta, Indonesia, by
a group of eminent human rights experts.
--They are a set of principles which pertain to the application of international
human rights law with respect to sexual orientation and gender identity.
NAZ Foundation v. Government of N.C.T DelhI (15 )
In this case declaring Section 377 of the Indian Penal Code, 1860 which
criminalizes homosexuality in India to be unconstitutional and violative of
Articles 14, 15 and 21 and read down the section, allowing consensual sexual
activity between two homosexuals above 18 years of age.
The matter went to appeal to the Supreme Court in Suresh Kumar Koushal and
another v. NAZ Foundation and Others where the Supreme Court struck down the
decision by the High Court in the NAZ Foundation Case.(16) The decision faced
huge protest across India.
K.S. Puttaswamy Vs. Union of India (2017):(17)
Navtej Singh Johar v/s Union of India (sixth September 2018):
- It is held that Sexual orientation is an important aspect of privacy which is protected by various Articles of the Indian Constitution.
- Equality in sexuality of each person must be protected at every phase.
- The people of LGBT cannot be the ground to deprive them of their basic fundamental rights.
- And such limitations of fundamental rights cannot be held acceptable.
- The 5 judges bench of the Supreme Court of India introduced a historic verdict on sexual orientation wherein the homosexuality partly de-criminalized as under 377 of IPC, 1860,
- With the aid of Article 14 of the Indian Constitution consensual gay intercourse among adults become now no longer a legitimate Intelligible Differentia manner isn't always towards the order of nature or now no longer a Rationale Nexus manner that's primarily based totally on subjective check like morality ect., which isn't always genuinely understandable.
- With aid of Article 15 the method of Delhi High Court on the time Naz Foundation case is that intercourse consists of organic intercourse with sexual orientation is genuinely genuine which displays progressed understanding.
- With the aid of Article 19 human sexuality can't be described narrowly. So, discrimination towards LGBT is absolutely unconstitutional. It offers proper to explicit sexual orientation freely.
- With the aid of Article 21 proper to lifestyles and liberty consist of privacy, dignity and autonomy. It may be constrained simplest on affordable grounds.
- But there may be some thing which continues to be remains that in case of pressure referring to intercourse with minors, non-consensual sexual acts, and bestiality is likewise a criminalized offense.
- Apology to the participants of LGBT community and their families, for the delay in imparting redress for the dishonour and avoidance that they've suffered via the centuries.
Legal Recognition Of Marriage
Section 377 was struck down in the year 2018 which decriminalized homosexuality
and this was a historic win for the LGBT community. However the same-sex
marriage is still not legalized and and the community remains to suffer
Arunkumar and Sreeja v. The Inspector-General of Registration & Ors(18) -The
Court said that "the term 'bride' according to the Hindu Marriage Act would also
mean a transsexual and not just refer to someone born as a woman.
Other Legal Provisions Related To LGBTQ Community
Same sex marriage under Special Marriage Act 1956:
- The Special Marriage Act is a secular law that enables marriages among humans of unique religions or folks who do not desire to be bound by their own personal laws.
- In a spiritual ceremony, a Marriage Officer registers the marriage. The best choice which might not provoke religious hackles is to make an amendment in the Special Marriage Act, 1954 so that same-sex marriages may be permitted. In its current form, the SMA applies to heterosexual couples only, as it provides that males must have attained the age of twenty-one years and females the age of eighteen years. But accommodating gay marriages within the scope of SMA is not that difficult. The only thing that needs to be done is to amend Section 4(C) so that it reads that a party, if male, must have attained the age of 21 years and if female, must have attained the age of eighteen years, or it could add a specific provision that same-sex marriages are permitted. In our opinion, an amendment is the easiest and the best legislative choice.
The Transgender Persons' (Protection Of Rights) Act, 2019 Or The Murder Of Gender Justice} (19)
This is not a bill in favour for them but against them. The act has no provision
to prevent those who discriminate, bully or harass them. This act deprives the
community of some of the most basic and fundamental rights a person should have.
The bill that was supposed to protect their rights was drafted and passed
without having a single transgender person and nobody from the community was
asked about their problems and requirements.
International Legal Position Of LGBTQ Community
- In 1992, WHO accepted it as a normal variation and considering the fact
that then the negativity toward the homosexuality has been eroding as states
are recognizing homosexuality as normal human behaviour and making certain rights
and privileges. Also, LGBT rights have made a great impact within global
international relations during the last decade however debate concerning the
challenge remained intact amongst all of the countries. International groups
together with UN and Human Rights Watch have passed numerous measures however
lacks professional statements because of competition through numerous member
- The Orlando Pulse nightclub shooting(20) incident in 2016 drew the
attention for the first time. United Nations Security Council released the
assertion condemning the attack and addressed problems associated with
sexual orientation. Even infamous anti-LGBT countries like Russia and Egypt condemned such act of
As of now, LGBT rights are given reputation as human rights through
numerous UN bodies, however blocs within the United Nations have left no risk to
halt the formal recognition of such rights. "More than 70 countries still
criminalize same-sex relationships and death penalty can be carried out in
certain African and Asian international locations" � said Vitit Munabhorn, the
UN unbiased expert on safety against violence and discrimination based on
Sexual-orientation and gender identity.(21)
Allowing same-sex marriages, adoption and surrogacy, countries such as Bolivia,
Ecuador, Fiji, Malta and the UK have gone steps ahead and enshrined the right to
equality for citizens on the basis of sexual orientation and gender identity in
their constitutions. India, however, has no legislation that would clarify the
rights of people from the LGBTQ community with respect to marriage, adoption,
surrogacy and health.
A careful observation of the politico-legal landscape of progressive and
developed countries, reveals that India still has a long way to go in ensuring
the right to equality and the right to life and personal liberty of this
community. Indian society lacks the education and awareness to develop a mindset
of acceptance towards the non-cis-gendered people. The lack of adequate
legislation and anti-discrimination laws has prevented any progress from the
2018 Navtej Singh Johar judgment of the Supreme Court.
When the Supreme Court decriminalized section 377 this is the to make the
society of LGBTQIA+ community friendly and deter any form of discrimination or
cruelty against them. This can be achieved by incorporating various practices
like introducing sex education in schools.
There is suggestion that there is a need to introduce more effective transgender
bills and make some amendments favorable to the LGBT community. It is a need of
the hour to legalize same-sex marriage and relieve Indian history from this dark
spot. Homosexuality will remain a stigma as long as people are willing to shove
under the carpet of oblivion. The Government should make efforts to educate the
public and raise public awareness about sexual minorities. The three organs of
the State and the society must ensure that the morality and values emanated from
the Constitution prevail and guide us towards a better tomorrow with dignity,
sexual autonomy and individuality for the LGBT community in India.
LGBT minority folks that essentially have special sexual orientation which leads
to face discrimination in the own circle of relatives and society. But prima
facie they're the person and consequently they're entitled to all human rights
in addition to essential rights in India. In the existing Indian societal matrix
and the rising struggle in the organization of marriage � the call for for
legalizing gay marriage is someway neglected and ignored.
But in close to
destiny the stereotype mindset of society for marriage as heterosexual
organization associated with procreation and rearing of kids may additionally
consist of gay marriages wherein love among the Companions can be given
significance in preference to the gender. Then the failure to well known the
converting nature of society and the own circle of relatives will bring about
extra damage than good.
Although it's far lengthy to head for this to happen.
But in any case the call for for legalising gay marriages is giving delivery to
a brand new struggle withinside the organization of marriage, own circle of
relatives and Law which can't be denied.
But on the identical time giving social
and criminal reputation is now no longer that clean on this conventional society
because it has been within side the western society however anyhow to disregard
this rising struggle within side the organization of own circle of relatives and
marriage can be brief sighted and might have deadly outcomes if now no longer
dealt with sensitively. So, it's far excessive time for the Legislature,
Executive, Judiciary and Society at big that they can't demean the lifestyles of
human beings with identical intercourse desires.
They additionally want to well
known that via way of means of legalizing gay members of the family they may now
no longer allow a trifling sexual pastime however may also decriminalize the
lives of citizens who're linked to such sexual act. Finally it may be stated
that if legal guidelines are prepurported to constitute socially desirable dos
and don'ts, then a brand new mind-set is the want of the hour. Otherwise,
everyday humans will preserve to go through inhuman exploitation simply due to
the fact nature has nourished them with the want to be special.
bisexual and transgender human beings have lengthy been worried in efforts for
racial and economic justice. Today, LGBT organizers and businesses are more and
more more drawing attentions among the actions for LGBT their rights and the
motion for economic, social, political and racial justice. Therefore nowadays
there is had to shield their rights as a person withinside the society.
- AIR 2018 SC 4321
- Dr. Kalpana V Jawale, Issues and challenges of 'LGBT' minority people in India, available at: http://www.allresearchjournal.com/archives/2016/vol2issue6/PartG/2-4-128-110.pdf (Last visited on 10th March, 2020)
- Available at: https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/LGBT_history_of_India.html
- Shakuntala Devi, The World of Homosexuals, available at: https://books.google.co.in/books?id=PBwbAAAAYAAJ&redir_esc=y
- Agencies, Supreme Court Pulls Up for Flip-Flop on Homosexuality, available at: http://archive.indianexpress.com/news/supreme-court-pulls-up-centre-for-flipflop onhomosexuality/917743/?google_editors_picks=true
- National Legal Service Authority v. Union of India, AIR 2014 SC 1863 at 1890 para 54, also available on web URL, latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors transgenders-rights-case-by-lavina-bhargava
- ARTICLE21, The Constitution Of India, https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
- R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861
- Verghese, A, 2014, A fresh look at homosexuality, available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4040081/
- ARTICLE23, The Constitution Of India
- 2010 CriLj 94
- K.S. Puttaswamy Vs. Union of India W. P. (Civil) No. 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
- (2019) SCC Online Mad 8779
- The Transgender Person' (Protection of Rights) Act, No. 40, Acts of Parliament, 2019
- Orlando shooting of 2016, also called Pulse nightclub shooting, mass shooting that took place at the Pulse nightclub in Orlando, Florida, in the early morning hours of June 12, 2016, and left 49 people dead and more than 50 wounded. It was the deadliest mass shooting in U.S. history up to that time
- Protection against violence and discrimination based on sexual orientation and gender identity (doc. no. A/72/172, 72nd session, United Nations General Assembly, 19 July 2017)