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LGBTQ Rights In India: A Bird's Eye View

One of the most oppressed minorities worldwide, including in India, is the LGBTQ+ community. People who identify as LGBTQ+ face prejudice and marginalisation due to the stigma associated with their sexual orientation or gender identity. Prior to the arrival of the British, LGBTQ+ individuals and their place in society are frequently mentioned in historical reports from India. But the Indian Penal Code of 1860, which was introduced with the establishment of the British Empire, included a particular section that set out how actions that were seen to be against the natural order of things would be punished. Nothing remains the same, though, because of the essence of time. Indians took over the government after the British were defeated.

Let's fast-forward to recent decades, when the LGBTQ+ movement began to gain ground. The LGBTQ+ movement has undoubtedly gone a long way from the first pro-gay rights demonstration in the 1990s to 2023, when the Indian Supreme Court is debating marriage equality. The scope of several outdated legislation has been reduced, and other judicial findings have sparked public discussion.

The Indian Judiciary has already changed the landscape of LGBTQ+ rights in India through its interpretations of the Naz, NALSA, and Navtej case laws, and the Legislature is being urged to give serious consideration to expanding recognition of LGBTQ+ rights. As a result, by accumulating major statutory provisions and noteworthy Supreme Court rulings, we have sought to trace the legislative and judicial advancement of LGBTQ+ rights in the country.

Historical Background Of Homosexuality

The Hindu texts show that there is acceptance of a third gender in Hinduism. There are claims that several characters in the epic "Maharashtra" changed their gender. One such person is Shikhandi, who is said to have been born a woman but subsequently came to identify as a man and married a woman. The fertility goddess Bahuchara Mata is revered by Hijras as their patroness. Two significant Sanskrit books on dharma and medicine, the Naradasmti and the Sushruta Samhita, consider homosexuality to be unchangeable and ban gay persons from getting married to someone of the opposite sex. However,

homosexuality is subject to a number of penalties, according to the Manusmriti, another work of Hindu literature.
According to the Manusmriti, a sexual union between two homosexual and straight people in a bullock waggon would lead to caste loss in the case of gay males. Being gay is defined as being attracted to others of the same gender as oneself.

It is not a new concept; Hinduism has long used it. In ancient texts and sculptures, such as the Rig Veda, which dates to around 1500 BC, female sexual practises are portrayed as revelations of a feminine realm where sexuality was centred on pleasure and reproduction. Historical instances of same-sex relationships include the Kamasutra's portrayal of homosexual practises, the harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, and Malik Kafur's homosexuality throughout the Muslim Middle Ages.

In the Mughal Empire, a standardised set of penalties for Zina (illegal intercourse), including homosexuality, were created by the Fatawa-e-Alamgiri, which combined a number of the pre-existing Delhi Sultanate regulations. For instance, a free infidel would suffer 100 lashes, a Muslim would be put to death, and a slave would receive 50 lashes. During the colonial era, the British government adopted Section 377 of the Indian Penal code. Bisexuality and homosexuality are prohibited by Indian Penal Code Section 377.

The Manusmriti makes mention of punishments for gay and lesbian behaviour that include caste loss, large fines, and whippings. It is evident from the application of these punishments that homosexuality was practised at the time. Since 1974, homosexuality has no longer been categorised as a mental illness or an abnormal behaviour. This exemplifies the evolution of homosexuality from a perfectly natural behaviour to an unnatural behaviour that is in opposition to the natural order.

The Constitution Of India

The Indian Constitution In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, the Supreme Court ruled that Articles 14 to 16 and Articles 19 and 21 of the Constitution recognise gender identity and that discriminating against someone based on their gender identity would constitute a violation of their fundamental rights under the aforementioned Articles. The Fundamental Rights to Sexual Identity, Sexual Autonomy, Sexual Privacy, and Choice of Partner are protected by Articles 21, 14, 15, and 19 of the Indian Constitution, according to the Supreme Court of India's Constitution Bench in Navtej Singh Johar v. Union of India, (2018) 10 SCC .

Status Of LGBTQ+ Rights In The Global Arena

Homosexuality was never accepted by the state or by religious organizations; up to the twentieth century, it was considered a vice and a crime. Only in the latter half of the 20th century did the idea of homosexuality shift from being a sin to being a common variation of a human being. The WHO acknowledged homosexuality as a normal variety of behaviour in 1992, and since then, as more and more nations have followed suit and extended rights and privileges to homosexuals, the stigma attached to it has been eroding. The last 10 years have seen a huge influence on international diplomacy as well as LGBT rights, but there is still intense disagreement on the topic across the board.
In spite of opposition from some UN blocs, a number of UN bodies have now formally accepted LGBT rights as human rights.

More than 70 nations still penalise same-sex unions with the death sentence, according to Vitit Munabhorn, a UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity. About 66 nations released a declaration in favour of LGBTQ rights before to the UN General Assembly in 2008. Unfortunately, Russia, China, and the US were unfriendly to these countries under the Bush Administration18. When the UN Human Rights Council released a report on violence against the community connected to commitments made under international law in 2015, it was amended. The Human Rights Council issued a similar declaration in 2011 outlining the problems faced by the LGBTQ community.

Despite all of these initiatives, a significant number of nations oppose these changes. Ban Ki-moon, a former UN Secretary-General, claimed that powerful member nations disagreed with him because of his support for LGBTQ rights. Several UN organizations, including the ILO, OHCHR, UNAIDS Secretariat, UNDP, UNESCO, UNFPA, UNHCR, UNICEF, UNODC, UN Women, WFP, and WHO, indicated that they wished to end acts of violence and discrimination against the LGBTQ community in a statement that was made public on September 29, 2015. Despite the discrepancies in many of them, the recognition of LGBTQ rights has been evident in distinct nations' acts. In countries like India, Kenya, Botswana, and Trinidad & Tobago, the struggle to modify the laws that outlaw gay unions is well shown.

As of 2018, Taiwan's Constitutional Court recognized same-sex marriage as a legal option. Executive director of the International LGBTQ+ Association Andr´┐Ż du Plessis notes: "We've seen a lot of positive improvements... There has been improvement, although slowly. Reforms, increasing knowledge, and decriminalisation have all occurred in Africa, Asia, and the Middle East; this illustrates the global LGBTQ+ rights movement's slow transition and clearly supports the notion that history will ultimately bend towards improvement''.

Important Central Legislation

Transgender Persons (Protection of Rights) Act, 2019
The Government of India introduced the Transgender Persons (Protection of Rights) Bill, 2016, which was approved by the Parliament in response to the Supreme Court's ruling in National Legal Services Authority v. Union of India,(2014) 5 SCC 438, which ordered the Central and State Governments to take various measures for the welfare of the transgender community.

On the other hand, the 2016 Bill expired with the dissolution of the 16th Lok Sabha. This led to the introduction of the Transgender Persons (Protection of Rights) Bill, 2019, which, after going through the required parliamentary procedures, became the Transgender Persons (Protection of Rights) Act, 2019....


According to Section 2(k) of the Act, a "Transgender Person" is someone whose gender does not match the one they were assigned at birth. This definition includes transgender men and women (whether or not they have undergone sex reassignment surgery, hormone therapy, laser therapy, or any other therapy), people with intersex variations, queers, and people who identify as kinner, hijra, aravani, or jogta. Chapters II to VI of the law contain provisions relating to the prohibition of discrimination, recognition of the identity of transgender people, government welfare programmes, obligations of other people and establishments towards transgender people, and social security, education, and health provisions for trans people.

Chapter VII contains provisions regarding constitution of National Council for Transgender Persons and Chapter VIII contains enumerates the offences against transgender persons and penalties for the same....

Occupational Safety, Health and Working Conditions Code, 2020

In accordance with Section 23 (2) (viii) of Chapter V of the Code, which is headed "Health, Safety and Working Conditions," the employer is required to provide separate, adequate, and sanitary arrangements for lavatories and urinals to accommodate male, female, and transgender employees. The employer is required to offer separate bathing facilities and locker rooms for male, female, and transgender employees under Section 24 (1)(ii) of Chapter VI of the Code.

Important Judicial Decisions
The transgender community has the right to pursue a gender identification other than the one determined at birth :-

The Division Bench of the Supreme Court comprising of KSP Radhakrishnan and A.K. Sikri, JJ., in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, held the following- Hijras, eunuchs, apart from binary genders, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature.

Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. The Court directed the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for Sex Reassignment Surgery for declaring one's gender is immoral and illegal. Centre and State Governments should take steps to create public awareness so that Transgenders will feel that they are also part and parcel of the social life and be not treated as untouchables....
Intimate relationships, the sanctity of marriage, reproduction, and sexual orientation are all fundamental components of privacy :-

K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, a landmark ruling by the Supreme Court's Constitution Bench of nine judges, addressed the issue of rights for the LGBTQ+ community and stated that the guarantee of constitutional rights does not depend on their exercise being viewed favourably by majoritarian opinion."Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution''.

Since it punishes consenting adult same-sex relationships in secret, Section 377 of the IPC is unlawful:
The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held Section 377, Penal Code, 1860 to be unconstitutional insofar it criminalised gay sex between consenting adults.

The Delhi High Court in Naz Foundation had declared Section 377 in violation of Arts. 14, 15, and 21 of the Constitution insofar as it criminalised adults engaging in consensual sexual activity in private. The bench reversed the decision of a two-judge panel in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, which in turn had overturned the decision of a division bench of the Delhi High Court. According to the court, consenting sexual activity between heterosexual partners should not be classified as an unnatural criminal under Section 377 of the Penal Code of 1860 if it does not include rape.

The requirement of a policy offering reasonable accommodations to transgender job applicants in organisations covered by the Transgender Persons Act, 2019:-
In a writ petition filed by a transgender woman asking the respondents to consider her for a position as cabin crew with Air India, the division bench of Dr. D.Y. Chandrachud and Hima Kohli, JJ., in Shanavi Ponnusamy v. Ministry of Civil Aviation, 2022 SCC directed the Central Government to consult the National Council and develop a policy framework under which reasonable accommodations can be made for transgender people in the country.

The legal validity of same-sex unions in India is still being contested:
The concerns surrounding India's legal acceptance of same-sex marriage are now being discussed by the Supreme Court's Constitution Bench. Hearing for the case was opened on April 18, 2023, by the five-judge court panel, which included Dr. D.Y. Chandrachud, Chief Justice, Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and Pamidighantam Sri Narasimha J.J. The petitioners in the case Supriyo v. Union of India asked that the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Foreign Marriage Act of 1969, and the Hindu Marriage Act of 1955 all be modified gender-neutral in order to recognise same-sex marriage in 2022.

Conclusion
India is a growing country, thus it requires progressive laws that treat all citizens fairly and provide everyone the same opportunity to make meaningful contributions to the future of the country. This would help the country's growth and development. India has finally eliminated one of the most severe regulations from the Victorian era. Same-sex unions are still forbidden, though. Two persons who are married have rights and duties, including those connected to adoption and inheritance. preparing for taxes, life insurance, and other benefits of a similar nature to be ineffective.

Marriage is a fundamental right for everyone in a country like India where it is so highly valued, yet the LGBTQ+ population is now denied this opportunity. It would seem pointless to decriminalise homosexuality in a country like India where LGBTQ+ persons are still unable to marry the partner of their choice. The Lok Sabha adopted the Transgender Persons (Protection of Rights) Bill on August 5, 2019, although it still has numerous flaws and is not very helpful to the LGBTQ+ community.

The goal of the research is to argue that the LGBTQ+ community will benefit from the transgender bill's strengthening and modification. To end this painful chapter in Indian history, same-sex partnerships urgently need to be legalised. Homosexuality will remain stigmatised as long as people are willing to brush it aside as a result of forgetfulness. Government should work to improve public awareness of sexual minorities and educate the general population.


The three pillars of the State and society must cooperate to guarantee that the morals and values inherited from the Constitution are respected in order for the LGBTQ+ people in India to live with dignity, sexual autonomy, and individuality. LGBTQ+ individuals still experience prejudice in society, despite all the advances. Despite the fact that a Supreme Court judgement can only provide a settlement, society must take steps to guarantee that LGBTQ+ persons are treated with respect and without prejudice.

The community is still fighting for issues like same-sex marriage's future, same-sex adoption's legality, the right against oppression, and other issues, so simply allowing sexual activity between same-sex partners won't put them in danger on a par with other citizens. It is clear that more work has to be done before India can be considered truly inclusive, and the battle has not yet been won.

References:
  • Government of India (2019). The Transgender Persons (Protection of Rights) Bill, 2019. Ministry of Social Justice and Empowerment. https://socialjustice.nic.in/sites/default/files/The Transgender Persons Protection of Rights Bill 2019.
  • UNESCO (2019). A Global Report on LGBTI Education: Educating for Diversity and Equality. Paris, France: United Nations Educational, Scientific and Cultural Organization. Retrieved from https://en.unesco.org/lgbtieducation/global-report
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