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Rights of LGBT Community in India

The Supreme Court of India made history with its decision in National Legal Services Authority v. Union of India, which referred to transgender people as the "third gender". The judgement confirmed that the fundamental freedoms guaranteed by the Indian Constitution apply to them equally, and granted them the right to self-identify as male, female, or third gender.

After this judgement, rights of Lesbian, Gay, Bisexual and transgender (LGBT) community have been evolving rapidly but still, the LGBT community of India faces more social and legal difficulties which are not experienced by non-LGBT persons. The Colonial era had laws which criminalised homosexuality; which have been abolished after the independence by introducing Article 15 in the Indian Constitution. Article 15 of the Indian Constitution forbids discrimination based on sexual orientation and gender identity.

In Hinduism, the Hindu scriptures show the acknowledgement of a third gender. According to some versions of the epic "Maharashtra", some characters changed their gender. One such character is Shikhandi, who is sometimes said to have been born as a female but who later comes to identify as a man and marries a woman.

The fertility goddess Bahuchara Mata is revered by hijras as their patroness. The two significant Sanskrit writings on dharma and medicine, the Nradasmti and the Sushruta Samhita, respectively, declare homosexuality to be immutable and prohibit gays from marrying a spouse of the opposite sex.

However, there are many penalties for homosexuality in another Hindu literature called the Manusmriti. In the case of gay males, the Manusmriti ruled that caste loss would ensue from a sexual union between two people both homosexual and heterosexual in a bullock waggon.

The Fatawa-e-Alamgiri, which established a standard set of sanctions for zina (illegal intercourse), including homosexuality, during the Mughal Empire, merged a number of the pre-existing Delhi Sultanate rules. These might include death by stoning for a Muslim, 100 lashes for a free infidel, or 50 lashes for a slave.

In colonial era, the British government enacted section 377 of the Indian Penal code. Section 377 criminalises homosexuality and bisexuality. According to section 377 of IPC, the act of having intercourse with any man, women, or animal which is against the order of the nature is punishable and outlawed. This law was enacted in 1861, prior to that there was no law governing sexual intercourse in India.

Post-Colonial Era:

The Supreme Court of India decriminalised consensual homosexual sex between adults in 2018 by reading down Section 377 of the Indian Penal Code and excluding it from its scope in the landmark decision of Navtej Singh Johar v. Union of India.

In December 2002, the Delhi High Court received a Public Interest Litigation (PIL) that Naz Foundation filed to contest IPC Section 377. The decriminalisation of homosexuality in India has received support from a number of organisations, including the Naz Foundation (India) Trust, the National AIDS Control Organization, the Law Commission of India, the Union Health Ministry, the National Human Rights Commission of India, and the Planning Commission of India. A large portion of S. 377 of the IPC was declared unconstitutional by the High Court of Delhi on July 2, 2009, in the case of Naz Foundation v. National Capital Territory of Delhi.

The Delhi High Court stated that holding up gay rallies was "not unusual," as it is common outside India. The Court determined that S. 377, to the extent it made adult consensual non-vaginal sexual acts illegal, violated an individual's fundamental rights to life and personal liberty under Articles 14, 15, and 21 of the Indian Constitution as well as their rights to equality before the law and to be free from discrimination.

The High Court did not completely invalidate Section 377. It stated that the section applied to non-consensual non-vaginal sex as well as sex with minors and expressed the hope that Parliament would pass legislation to address the problem.

On December 11, 2013 the Supreme Court of India upheld the constitutionality of Section 377 of the IPC. It was a response to the appeal brought by an astrologer named Suresh Kumar Koushal and others, and stated that it was instead deferring to Indian legislators to provide the desired clarity.

Later on 6 September 2018, The Supreme Court invalidated the portion of section 377, a law from the British era that made homosexual acts consensual. The court upheld that other provisions of Section 377, which makes unnatural sex with children and animals illegal, will continue to be in effect.

Discrimination Protection:

The Indian Constitution and its various amendments protect the LGBT community against various discriminations.

Article 15:

Article 15 of the Constitution of India states that:
Discrimination prohibited on the basis of religion, race, caste, sex, or place of birth
  1. The State shall not discriminate against any citizen on the basis of religion, race, caste, sex, or place of birth alone or in combination with any of the other grounds.
  2. No citizen shall be subject to any disability, liability, restriction, or condition with respect to:
    1. access to stores, public restaurants, hotels, and places of public entertainment; or
    2. the use of wells, tanks, bathing Ghats, roads, and places of public resort maintained entirely or in part with money provided by the State or designated for the use of the general public.

Discrimination and bullying in higher education:

The UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016, prohibits bullying, ragging, and discrimination against students based on their sexual orientation or gender identity.

Military Service

The Indian Armed Forces do not allow openly serving LGBT individuals. A bill to amend the Army Act of 1950, the Navy Act of 1957, and the Air Force Act of 1950 was presented to the Indian Parliament by BJP member Jagdambika Pal in late December 2018 in order to permit LGBT people to serve in the armed forces. The Lok Sabha did not vote on the bill.

Some State Laws:
State of Kerala and Tamil Nadu:
The first Indian states to implement a transgender welfare policy were Tamil Nadu and Kerala. According to the policy, transgender people have access to free housing, various citizenship documents, admission to government colleges with full scholarships for higher studies, alternative sources of income through the creation of self-help groups (for savings), and the launch of income-generation programmes (IGP). The first state to establish a transgender welfare board with members from the transgender community was Tamil Nadu. In 2016, Kerala began offering free surgery in public hospitals.

State of West Bengal:
In order to coordinate all policy choices and development efforts pertaining to the state's transgender population, the state of West Bengal established a transgender welfare board in 2015. The board, however, has received criticism from a number of transgender activists who call it a "all-around failure." The board is supposed to meet once a month with representatives from many state government departments, but as of July 2017, it has only convened five times.

State of Karnataka:
The "State Policy for Transgender, 2017" was released by the Karnataka government in October 2017 with the intention of increasing awareness of transgender individuals throughout the state's educational institutions. The issues of abuse, violence, and discrimination against transgender people will be addressed in educational institutions. A monitoring committee charged with looking into allegations of discrimination was also established.

State of Maharashtra:
A "Transgender Welfare Board" was established by the Maharashtra government in February 2019 to carry out health programmes and offer formal education and employment opportunities to transgender people. The board offers free housing for those applying for scholarships as well as skill development programmes to assist transgender people in finding employment.

In the same month, a similar board was also established in Gujarat, a neighbouring state. The Gujarat board works with state agencies to ensure that the transgender community can benefit from government programmes and offers a variety of welfare programmes for employment and education. To educate the public, an educational campaign was also launched.

State of Bihar:
The Bihar Government announced the establishment of a transgender welfare board in July 2019. The board would look into and report on the social and legal difficulties transgender people in the state face, as well as offer financial aid of up to Rs. 150.000 for sex reassignment surgery. Additionally, those who deny transgender people housing or access to medical facilities could face prison sentences of up to two years.

Educating people about LGBT rights is crucial. Human rights are unalienable, unalienable rights that are bestowed upon all people at birth. People must understand that homosexuals are not ill, aliens, or abnormal; rather, their sexual orientation is entirely consistent with the laws of nature.

Human rights should include recognition of LGBTQ rights. Articles 14, 15, 19, 21, and 29 are all broken by not recognising same-sex unions, not allowing adoption, guardianship, surrogacy, or IVF, and not having access to secure and LGBT+ inclusive workplaces. Additionally, discrimination based solely on sexual orientation is against Army, Navy, and Air Force Act Articles 14, 15, and 21.

Social norms, customs, cultures, or traditions cannot ever be a legal justification to prevent one person from exercising his or her fundamental rights under the constitution, according to the universal law of human rights.

We would never have been able to eradicate the social ills of child marriage, Sati, dowry, infanticide, and other related issues if we had begun to justify everything on the basis of cultural beliefs, societal values, and governmental policies.

Therefore, it is imperative that the government put aside its conservatism and take decisive action to end the stigma, discrimination, and abuse that surrounds LGBTQIA+ people. It is past time for the government to create new laws or amend existing ones governing marriage, adoption, guardianship, inheritance, educational institutions, employment, healthcare services, etc. for the benefit of LGBT+ people's education, social security, and health, with a special focus on Transgender People.

Award Winning Article Is Written By: Ms.Soumya Ranjan Prakash
Awarded certificate of Excellence
Authentication No: SP226236168721-19-0922

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