This Article has been authored by Ansh Prasad, a third year law student at Chanakya National Law University, Patna.
Indian society is primary patriarchal where the mind and thoughts of people are conservative. Conservative thinking is prevalent in the higher age group which constitutes almost 54% of the Indian population. Though, the Supreme Court of India has recognized some of the rights of the LGBT community and has decriminalized homosexuality but the LGBT community is still looked down in the society.
In 2015 a survey was conducted by IPSOS poll in 23 countries in which India had the fifth-lowest support for same-sex marriage. According to the survey, only 29% of the Indian population supports same-sex marriage. In 2016 another poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association was conducted and only around 35% of the Indian population voted in favor of legalizing same-sex marriage. According to the survey of the Varkey Foundation people belonging to the lower age group were mostly in favor of same-sex marriage.
Many countries have shown a positive approach while dealing LGBT rights. Countries such as Mauritania, Sudan, Iran, Yemen, and Saudi Arabia have imposed the death penalty for the persecution of the LGBT community and as many as 71 countries in the world have imposed life imprisonment punishment for discriminating against people based on sexual orientation and gender identity.
Status of LGBT in India
The orientation of a person as lesbian, gay, bisexual is not an outcome of modernization. It was also prevalent during the ancient times. Homosexuality finds its reference in various Hindu texts such as Rigvedas and the famous text of Kamasutra. It is mentioned in the book of Rigveda “Vikriti Evam Prakriti” which means that what we see as unnatural is also natural.
Recognition of same-sex marriage
Same-sex marriage is not legally recognized by laws in India. There have been several cases that prayed for legalizing same sex marriage as they violated fundamental rights. It was pleaded before the court in Naz Foundation v. NCT Delhi that Section 377 of IPC violates Article 15. It was also pleaded that the personal laws for marriage don’t recognize the LGBT community. It was held by the court that personal laws cannot be tested on the touchstone of fundamental rights and hence Section 377 was decriminalized. However the Supreme Court in Suresh Kumar Koushal v. NAZ Foundation, overruled Naz Foundation.
The Supreme Court in the case of Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors, AIR 2018 SC 4321, gave a very wide interpretation to Article 15. The Supreme Court while deciding upon this case incorporated the term ‘gender identity’ as one of the grounds under Article 15 of the Constitution of India. It means that a person of the LGBT community who is not a man biologically but identifies himself to be a man is also protected under Article 15 of Constitution. “The expression "sex" used in Articles 15 and Article 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”
In India, though Section 377 has been partially struck down but that doesn’t mean a person from the LGBT community can join the armed forces. Section 46 (b) of the Army Act, 1950 specifically mentions the term ‘disgraceful conduct’. It means that if a person indulges in any kind of homosexual activity, the said activity would fall under disgraceful conduct which is an offence under the Army Act, 1950.
US has recently uplifted the ban on the LGBT community and now a person form the LGBT community is allowed to be a part of military force. U.S previously followed the policy of ‘Don’t ask, Don’t tell’ which was repealed in 2010.
Transgender Persons (Protection of Rights) Act, 2019
As provided in the Transgender Persons (Protection of Rights) Act, 2019, transgender is defined under Section 2(k) as someone “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jogta". Section 3 of the Act prohibits discrimination against transgender community. The provisions of this Act provides for state and institutions to come up with the policies to safeguard and protect the interest of transgender children. Also a transgender can obtain a transgender person certificate from the district magistrate which will give them the right to change their name on the birth certificate.
Section 16 of the act empowers the central government to set up a “National Council for Transgender” to advise the Union Government on the various issues and policies for the protection and benefit of transgenders.
Transgender Persons (Protection of Rights) Act, 2019 has been often critized by the activists on the ground of being draconian and discriminatory. The day of passing of this act has been referred by some transgender people as ‘gender justice murder day’ and ‘black day’.
Recognition of transgender person’s identity is decided by the District Magistrate which involves a regressive certification process. This act also fails to expand the definition of family to include ‘family not related by blood’. It is well known to people that most often transgender people don’t live with their biological parents as because of nuances associated with them.
It is also contended by various activists that the chapter prohibiting discrimination is plagued with some major agitation. There is lack of enforcing authority and lack of punitive measures to be taken against the violator. Also, there is a lack of remidial measures by the way of compensatation or othere means.
The Road to LGBT Rights
The road to equal rights for the LGBT community is not an easy one especially in the society where heterosexuality is the only accepted orientation and homosexuality is considered immoral. In many countries, the rights enjoyed by heterosexual couples are not enjoyed by the homosexual couples which lead to discrimination and also creates a hindrance for the LGBT community to enjoy a respectable social status in the society.
In the case of NAZ Foundation v. Government of NCT Delhi, NAZ Foundation, a non-government organization in Delhi instituted a case in Delhi High Court on the ground that Section 377 of the IPC violated the fundamental rights granted by the Constitution of India. It was pleaded that Article 15 should not be read restrictively but should include the term sexual orientation as a ground for protection against discrimination.
The court, in this case, held that Section 377 violated Article 14, 15, and 21 of the Indian Constitution. The court observed that Section 377 does not differentiate between an adult and minor and also no distinction is made between a consensual and a non-consensual act. Thus, criminalizing the sexual orientation in the absence of evidence of harm seemed arbitrary and unreasonable.
Forthwith, in the case of Suresh Kumar Koushal v. NAZ Foundation the judgment of NAZ Foundation was overruled by the Supreme Court on the ground that Section 377 is gender-neutral. It was also pleaded that Section 377 does not violate Article 21 of the Indian Constitution as the right to privacy does not include the right to commit an offense.
Finally, in the case of National Legal Services Authority v. Union of India something exceptional happened which brought light in the life of transgenders. Before this judgment, only two genders i.e male and female were legally recognized. The Supreme Court in this case created a third gender for transgenders. The Supreme Court also gave direction to the government of India to treat the member of transgenders as socially and economically backward class.
A ray of hope came into the life of the LGBT community when the Supreme Court decided to review the criminalization of homosexual activity. In Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors, the constitution bench decriminalized homosexuality by reading down a part of Section 377.
The court while deciding the case opined that if one person prefers sex with the same gender it is their choice as long as it is consensual and doesnot harm anyone, and any invasion into these matter would be breach of privacy under Article 21. The court also held that Section 377 targets a specific community and discriminates against LGBT on the basis of sexual orientation and gender identity, and thus violates Article 17 of the Indian Constitution. The court decided that sexual orientation is parallel to sex and thus, discrimination on sexual orientation is violation of Article 15(2) of Indian Constitution.
It can be said that the battle of LGBT people is twofold. Firstly, they are fighting for their legal rights, and secondly, they are imploring the society altogether for social acceptance. Though Supreme Court has nullified a part of Section 377 which is of course a historic judgment that decriminalized homosexuality, but still they cannot marry according to the laws in force in India.
The LGBT society still lacks societal support and acceptance in the society. But it would be pertinent to mention that LGBT may be considered as a social taboo among the conservative society but younger generation of this era knows and understand the term ‘sexual orientation and gender identity’ and thus, new laws are being made for protection of LGBT community. Apart from social affairs, the road to complete and fair legal rights is way too long for the LGBT community. They don’t have the legal right to marry and also, they cannot adopt a child.
Surely, a ray of hope has come to the lives of the LGBT community after the Supreme Court decriminalized homosexuality. But it is only the first step towards accomplishment, there is much more to achieve.