UNFOLDING THE POSITION OF LGBT+ IN INDIA : A DISCUSSION
This article has been authored by third year students, Sakshi Kesharwani of Banasthali Vidyapith, Astha Kesharwani of Institute of Law, Nirma University and Akanksha Yadav of Faculty of Law, University of Allahabad.
It seems to be magical how India is making an incredible journey of maintaining the traditions and culture in its roadmap of development. The diversity, here, has always been an international attraction and how people from different communities, religion and beliefs live together. But when it comes to Human sexuality there is still some stigma around this topic and LGBTQ+ community. Although “Human sexuality” has been a taboo subject at the global level until in the new millennium arrived. Various countries have recognized the LGBTQ+ community. India is trying to do that too but misconception around this issue makes it hard.
It has been 74 years since our country got independent and LGBTQ+ group is still fighting for their independence and basic rights. Indian Supreme Court, on 6th September 2018, unconstitutionalised section 377, which titled the homosexual relations as “unnatural offences”. But when we look around in the present scenario, there are many more works to be done in this line.
In this article, we have put forward the historical facts about homosexuals and transgender as a part of Indian culture, major pros and cons about our laws related to LGBTQ+ community. We also tried to discuss their societal status and the problems faced by them in India. The main focus of this paper is on the fact that what more can be done by the legislation to protect the interest of this community.
Ever since our nature created the men and women and their association, it created the homosexual people too, who, according to our society, are the unnatural beings and are homosexuals. These people are commonly known as the ‘Third Gender people’. Foucault, a French historian, affirmed that modern categorisation of the sexes was initiated in the nineteenth century Europe and until then there was no such concept (Foucault-1990).
Modern Indian historians have confronted these thoughts of society and stated several instances where homosexuality is proved as a part of society and are considered as precisely natural. In the most privileged text of love making of the Hindu mythology, chapter nine of the Kamasutra deals with several homosexual activities. Though it is not mentioned anywhere that these people were excluded from the society, but they were acknowledged to be born with divine insights. In the modern time too, many people of Indian society who are merely procreative and heterosexual, believe that blessings of these people provide a protection to their family and their curse can destroy their lives.
In the sacred text, Bhagwada Purana, it is mentioned that lord Shiva also saw Vishnu as Mohini and fall for him and their unification resulted to the birth of Lord Ayyappa.The renowned character of Sikhandin and Brihannala are the most respect transgender characters of Mahabharat.In Valmiki Ramayana, the birth of king Bhagirath was the result of union of his two mothers and widows of king Dileep, by the blessings of lord Shiva.
In the temples of Khajuraho, there are certain images of women who erotically expose their genitals in front of other women and men. Some learned people have confessed that these are the proofs that people were engaged in homosexual activities.
In the medieval period, according to Amir Khusrau, the real invader of the south India and the slave of Allauddin Khilji, Malik Kafur was in homosexual relationship with the sultan. He was the most intelligent and faithful slave of Allauddin Khilji.
The period of the nineteenth century was the period of evolution of homosexuals. With the rise of the British Empire, thoughts of Indian people also changed accordingly and hence, the laws became anti-sodomy and homosexual activities became illegal consecutively.
The problems were not sorted these people who desired for queer relationships, even after the independence and formation of a new republic. In 1994, at Delhi’s Tihar Jail, there were major number of cases of HIV/AIDs, but the police did not allow them to wear condoms and the reason was allowance for the illegal acts of physical intimacy between the same sex adults. As a consequence, several PILs were filed against the same.
King Henry VIII brought this section 377 through “Britain's Buggery Act of 1533” which prohibited "the detestable and abominable offence" of buggery (anal intercourse) committed with mankind or beast.
This section survives for about 70 years and almost 2 decades.Some landmark judgments which show the whole struggle of the nation in decriminalizing same-sex marriage are as follows:-
Naz Foundation Govt. V. NCT of Delhi (2009)
Naz Foundation an NGO, filed the petition in the Delhi High Court with the argument that Sec 377 of the IPC 1860 violates the fundamental rights of equality, liberty, dignity, privacy, and freedom by the impugned provision of Article 14, 15,19, and 21 of the constitution of India 1950. The ngo filed the the petition regarding reducing the risk of transmission of HIV/ AIDS as a fear of prosecution under the section and prevented people from talking openly about sexuality and lifestyle.
On 2nd July 2009 Delhi High Court delivered the judgment in favour of the Naz Foundation and held that section 377 of IPC 1980 violates the Article 14, 15, 19 and 21 of the Constitution of India 1950 and also unreasonablyrestricted adults in engaging in sexual intercourse in private.
After the judgment was pronounced, lots of people started reliving their identity in public. On the other hand there are so many religious groups standing and opposing the judgment by saying that this judgment is against the nature and demand for the review of the judgment.
Suresh Kumar Koushal& Another v. NAZ Foundation & Others (2013)
In this case, the judgment passed by the division bench of Delhi High Court and again criminalizing section 377 of the IPC 1980 by giving the reasoning that “A minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgender" and that the High Court had erroneously relied upon international precedents "in its anxiety to protect the so-called rights of LGBT persons". Also, the court said that the judiciary cannot interfere in laws making and this is the matter of the parliament to decide. Also, the court said that they cannot extend the right to privacy to this extent that you enter one offence under this.
After this judgment, a lot of people stand and raise their voices against the judgment. The people who reveal their identity after the Naz Foundation judgment start facing discrimination and violence21. A wave of activism startedto run in the country.
National Legal Service Authority V Union of India (2014)
In this case, the primary argument is that all laws in India are based on binary sex that is either male or female and no laws protect the rights of transgender. The court said that
“Article 14 considers all the people right either male or female or transgender”.
“Article 15 and 16 the court said that the word sex used in this article is not restricted to the biological sex but also includes the person who neither considers them male or female”.
“Article 21 the court said that the right to live with dignity also includes the right to choose gender identity.”
“The judge also considered the United Nations and other human rights bodies and Yogyakarta principles.”
There are lots of positive things that came from the judgment but the biggest victory is to the legal reorganization of the third gender person.
Justice K. S. Puttaswamy v. Union of India (Aadhar judgment) (2017)
In this case, the Suresh Kaushal V Naz Foundation case was overruled and the court said that this is the best chance to undo the mistake which the Delhi High Court had made. The reasoning of the court is Sexual orientation is an essential attribute of privacy.
Discrimination against an individual based on 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 of India 1950. The LGBT+ rights are not so-called but are real rights founded on sound constitutional doctrine.
Navtej Singh Johar V Union of India (2018)
This is the landmark judgment that changes the life of the LGBT+ community and gives the legal reorganization in society.
The petition was filed by the 5 members of the LGBT+ community for scrapping section 377 of the IPC 1980 which criminalizes the consensual sex between the same sexes individual.
“On 5th January Supreme Court formed a constitutional bench the 5 judge bench consisting of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman, and Justice Indu Malhotra.”
“On 6th September 2018, the Supreme Court partially struck down Section 377 of the IPC 1980 and said that this section is the violation of Article 14, 15, 19(1)(a), and 21 of the Indian Constitution1950.”
By this judgment, the Supreme Court allowed to LGBT+ community to engage in consensual intercourse and still criminalize the non-consensual acts or sexual acts performed on animals.
So the new Section 377 which came into the IPC after the judgment is:-
Section 377:- Unnatural offences.—whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
In this section consensual sexual relationship between two adults’ homosexual, heterosexual or lesbians is no more an offence.
September 6, 2020, marked the 2nd anniversary of the historic judgment which gave freedom to the LGBTQ community to express their sexuality in public. The Supreme Court's judgment came as a huge relief to the LGBT+ community. In this historic ruling, the Supreme Court said parts of section 377, which criminalized consensual unnatural sex, were "irrational, indefensible and manifestly arbitrary". The court recognized sexual orientation as a “natural and inherent” biological phenomenon, and not a matter of choice.
The judgment of the Supreme Court has put homosexuality in a different light, which was seen earlier as a crime. Whether the people are accepting queerness or not it definitely has become part of people's consciousness. With the awareness spread by social media and by the initiatives of LGBT+ community people, urban India is becoming more acceptable to queer identities and homosexuality. The LGBT+ people are now more confident to express themselves, and their own relationship without the fear of discrimination and harassment.
A lot of companies are embracing the inclusive agenda and workplaces are having a conversation about the inclusion of the LGBT+ community. Talking about this Pramesh Sahani said that “it made a huge difference because even if the parents are not supportive but your workplace is, you can talk about it at work”.
In these two years, the media representation of the LGBT+ community has increased manifold. A decade ago there were very few books that talk about queer people but now there are more than two hundred books.
Electronic media has played a huge role in being the ally of queer people. Movies like Ek Ladki ko Dekha, Shubh Mangal Zyaada Savdhaan, and web series like Made in heaven, Aarya, Sacred Games represent the LGBTQ community through their characters and also deals with the issues faced by them. But what more important is that queer people are telling their own stories, Aligarh was written by Apurva Asrani and Ek Ladki ko Dekha was written by Gazal Dhaliwal both of them belongs to the LGBT+ community.
The Supreme Court believed that once the criminality of consensual sex relationships goes away then the stigma regarding the LGBTQ community will eventually go. Today homosexuality and queer identity are acceptable to more Indian youth but the freedom to express their identity in public still remains a constant struggle for the LGBT+ people. The Supreme Court judgment has given the power to a lot of people to come out of the closet but this change has primarily been for the urban, privileged people. In rural India, the condition of homosexual and transgender people is inhumane in many cases. In some parts, secret honor killing is planned; homosexual people are forced to heterosexual marriage, the family often physically and mentally abuse them.
In India, the condition of women who are from the LGBT+ community is much worse compare to men. Most of the lesbian women are subjected to family sanctioned corrective rapes which are often committed by their own family members and subjected to physical abuse. Many lesbian women prefer to remain in the closet than coming out. 
A recent study found that one of the major factors that result in the stigmatization of the LGBT+ people is a parental reaction towards homosexuality. The study goes on to conclude that most of the LGBT+ people are acceptable to family only if they agree to behave like heterosexuals.
Family forces the LGBT+ members to go under the "corrective therapy" which is no less than a torture for them and prove to be detrimental for their mental health. Conversion therapy claims to "cure" queerness, it involves everything from shock treatment to exorcism to psychotropic drugs and kindles a sense of shame. According to medical experts, it causes irreparable damage to the mental health of the victim and in some cases leads the victim to commit suicide. But still, the conversion therapy is practiced in secrecy in many parts of India.
In India social sanction is lagging far behind the legal sanction. The situation is still very bleak for the LGBT+ youth. Many faced harassment and bullying in school. Most teachers are not trained or empowered to respond to anti LGBT+ bullying. In some cases, they even participate in the harassment.
Two reports were published in 2019 shed some light on the experiences of sexual and gender minority youth in India’s schools. UNESCO, the United Nations education agency, and the International Commission of Jurist, a non-governmental organization, each have published in-depth reports on the plight of LGBT Indians.
International Commission of Jurists’ report included an examination of housing, access to public spaces, and employment – with education analyzed as a precursor. ICJ found, "Educational and training opportunities are often denied to LGBTQ persons due to harassment, bullying, and violence" citing gender-specific school uniforms, lack of access to toilets and difficulties in obtaining accurate identity documents as barriers for the LGBT+ students. “Accounts of bullying in schools were common.”
UNESCO surveyed 371 sexual and gender minority youth and gathered in-depth information from more than 60 through focus groups in Tamil Nadu state. Eighty-four percent of participants reported being bullied; most by other students, but in one-fifth of these cases by a male teacher only eighteen percent of those who were bullied said they reported the incident to school authorities. This shows that the laws need to be accompanied by social change and a lot needs to be done on the social-cultural level.
Major Reforms in Laws Relating to LGBT Community.
Being treated as unnatural for about 200 years is a kind of social imprisonment, which people of the LGBT group are facing today also. Although section 377 of IPC, which tagged them as unnatural beings, is now decriminalized, certain very important developments are yet to be made. In this section, we will focus on such reforms that are made in the favour of these people, in India.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
To be very precise, this act is made to secure certain rights of this community but, nevertheless, it is opposed by the community itself. The pros of this act are:
● “All persons belonging to the gender queer category are treated equally are not differentiated”.
● “It assured the prohibition against discrimination in education, healthcare, employment, public requirements, and services, etc. This act intersected forced labour”.
● “It encompasses the various healthcare measures, inclusive of the HIV surveillance centers and sex reassignment surgeries”.
● “Provisions relating to the composition of the national council for transgender persons (NCT) are mentioned that include five representatives from the transgender community”.
Apart from these, there are several other features that can actually help these people to get out of their agonizing situation. But coming back to the bitter reality, the outcome was not in the way that it was expected. According to various activists, the major problem was started right from the beginning of the act. Hence, the few major cons of the act were:-
● “The term ‘transgender’ in the title of the act was both specific and restrictive”.
● “Lack of implementation weakens the provision”.
● “No strict provisions are made to achieve their belief that this act won’t lead to any bureaucratic discrimination”.
Right to Love but no right to marry.
Marriage, according to the Hindu law, is a sacrament which unites a bride and bridegroom/ male and female. The maxim “conjunctic martitet perminae est de nature” means that to keep a husband and wife together is the law of nature and “viret unor consentur in lege una pensona” contemplates that husband & wife are regarded as one in law.. These maxims themselves are particular about males and females. In our country, there are no such laws which allow people of LGBT+ community to marry legally as there is no such law which have a propensity to protect such marriages, i.e., laws related to registration of marriage, inheritance, maintenance, etc. Also, right to choose a life partner is a fundamental right as per Article 21 of the Indian constitution. So, now there is no such reason which could criticize the marriage of LGBT+ people except for the blind prejudice.
Navin and Rahim of Kerala is a gay couple who got married on July 5, 2018 at Guruvayur Temple. But they made their marriage public when the section of unnatural offences was decriminalized. So they say that at first people criticized them but later things changed and society started accepting them. But such marriages are still not fair in Indian laws as there is no legal protection in terms of divorce and other marital rights.
Right to adopt but no right to surrogacy
According to an article of the mint, dated 08.06.2014, it states that the central government has decided to stop homosexual couples from adopting children which would prevent the LGBT community to become adoptive parents though single LGBT people are not specifically forbidden from adopting children. 
Right to Equality but no right to serve the country
Decriminalisation of article 377 has provided this community constitutional equality but there are several other jobs which are yet to be fulfilled. On societal level, still these people are not treated equal.
International Laws : For LGBT+ (Could be a better roadmap formal over development in India, if implemented)
Following are some laws which had helped the respective nations in an incredible way
● NETHERLANDS: Netherlands’ law recognizes gay marriage and also gives equal rights to cohabitation partnerships. It is the first country in the world which has given equality to its citizen in real sense.
● CANADA: Canada is a country where more than one million NRIs reside. About the laws related to homosexual people, Canadian human rights (amendment) act, 1996, it was clearly declared that LGBT+ Canadians are entitled to equal rights and opportunities.
● THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND: this is the country (the group of countries, precisely) which brought the section 377 of IPC into enforcement. Britain already has given its LGBT+ people all the rights, be it related to marriage, adoption, and serving in the military or any other.
Apart from these countries, Belgium, Australia, South Africa, Sweden, Norway, Germany, Denmark, Iceland, Portugal, Argentina, and around 124 countries (in whole) have legalised homosexual activities. So we need to widen our vision and provide universal human rights (at least) to this community as they too are in the category of human beings.
The Supreme Court decriminalize the section, the next work of the legislature to make the act in such a way that it creates deterrence in the mind of the society before doing discrimination or cruelty against the LGBT+ community. If there is no deterrence then no one is going to follow any law and even after the Judgment there is no security to the LGBT+ community in the society.
India is known as a land of diverse culture, religion, language but deep inside society discriminates in gender. Now, this is the time that the government has to come up with the appropriate laws in the protection of the LGBT+ community so that they also feel that nation cares for them. Next work of the legislature should be to make the acts with regard to the rights which a LGBTQ member doesn’t have just because of his identity. This will also give a sense of power to the community and it might make a significant change in the way society perceive them.
 Kyle Knight, Section 377 is History but Young LGBT Indians Need Concrete Policies to Protect Them from Bullying, Scroll.in (June 24, 2019 2:46PM).https://www.hrw.org/news/2019/06/24/section-377-history-young-lgbt-indians-need-concrete-policies-protect-them-bullying  Michael Foucault, The history of sexuality, (1990).  RK Dasgupta, Queer Sexuality: A Cultural Narrative of India’s Historical Archive,(2011). VatsyayanaMallanaga, Kama Sutra “There are also third-sex citizens, sometimes greatly attached to each other and with complete faith in one another, who get married together.” (1883).  Human Rights Committee, Stances of faith on LGBTQ issues: Hinduism, Human rights Campaign. https://www.hrc.org/resources/stances-of-faiths-on-lgbt-issues-hinduism This belief is well known in India and His Divine Grace A.C. Bhakti Vedanta Swami Prabhupada cites an interesting example wherein “eunuch” bless the baby Nimai, an incarnation of Radha and Krishna, over 500 years ago in Mayapur, West Bengal. See Outline of Lord Chaitanya Play, Part One, Tape no. 67-002 and Sri Caitanya-caritamrta 1.13.106, purport.https://www.galva108.org/positive-perspectives Rishi Vyasadeva, Chap- 8 Amrita of ‘bhagwada purana’, (about 10thcenury). Vyasa,Mahabharat- Virata Parva, (4th century CE). Poet Valmiki, Chap-70 Bala Kanda, (300 bce). AmīrKhusrawDihlavī; WahidMirza, Chap 5, khazain-ul-futuh- Amir Khusrau, (1975).  HRW (human rights watch). - the origins of “sodomy” laws in British colonialism. [www.hrw.org]https://www.hrw.org/sites/default/files/reports/lgbt1208_webwcover.pdf According to a study conducted by Swasti Health Resource Center in 2015, spanning 7 months and covering 5 Indian states, 14% of 8,549 respondents had faced some form of emotional violence, 8.9% were survivors of sexual violence while 9% had faced physical violence.https://swasti.org/wp-content/uploads/2018/04/Swasti-Annual-Report-2015-16.pdf section 377 Based On Law By Henry VIII In 1533, Explains Supreme Court, NDTV, (Sept. 08, 2018, 1:25 pm). https://www.ndtv.com/india-news/supreme-court-explains-history-of-section-377-says-it-was-based-on-law-by-king-henry-viii-in-1533-1913404  CONST. of India, 1950.  Nikhil Kumar Singal, Naz Foundation v. Govt. of NCT of Delhi — A Critique, Supreme Court Cases, (Sept. 17, 2020). http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=21220 160 Delhi Law Times 277.  Nikhil Kumar Singal, Naz Foundation v. Govt. of NCT of Delhi — A Critique, Supreme Court Cases, (Sept. 17, 2020). http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=21220  Civil Appeal No. 10972 of 2013.  AIR 2014 SC 1863.  Anurag Bhaskar, Key Highlights of Justice Chandrachud's Judgment in the Right to Privacy Case, the Wire, (Aug. 26, 2017). https://thewire.in/law/justice-chandrachud-judgment-right-to-privacy W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016. I.P.C. § 377 LexisNexis (1860). Akshatha M, A long way to go for LGBTQ community, The Economic Times, (Jan 04, 2019, 11:14 AM).https://economictimes.indiatimes.com/news/politics-and-nation/a-long-way-to-go-for-lgbtq-community/articleshow/67377077.cms?from=md Phalguni Rao, After Supreme Court verdict on section 377, LGBTQ community members, activists gear up for the next challenge, first post, (Sept. 07,2018) https://www.firstpost.com/india/after-supreme-court-verdict-on-section-377-lgbtq-community-members-activists-gear-up-for-next-challenge-5135311.html Sunalima Mathew, I see a flow towards inclusion: Parmesh Shahani on LGBTQ representation at the workplace, The Hindu, (Sept. 08, 2020).https://www.thehindu.com/life-and-style/parmesh-shahanis-business-book-on-lgbtq-representation-at-work/article32529648.ece  PTI, Two years since Article 377 annulment, LGBTQ community still battling prejudice, The Hindu, (Sept. 06, 2020). https://www.thehindu.com/news/national/two-years-since-article-377-annulment-lgbtq-community-still-battling-prejudice/article32534479.ece Sunalima Mathew, I see a flow towards inclusion: Parmesh Shahani on LGBTQ representation at the workplace, The Hindu, (Sept. 08, 2020).https://www.thehindu.com/life-and-style/parmesh-shahanis-business-book-on-lgbtq-representation-at-work/article32529648.ece  Bhadra Sinha, Decriminalising gay sex will do away with social stigma against LGBTQ: Supreme Court, Hindustan Times, (July, 12, 2018). https://www.hindustantimes.com/india-news/once-criminality-of-section-377-goes-so-will-stigma-against-lgbtq-supreme-court/storyw9CoBMdHFeog6Fz2kIjHVP.html  Rashmi Patel, Being LGBT in India: Some home truths, Live Mint, (Aug. 27, 2016). https://www.livemint.com/Sundayapp/sAYrieZdZKEybKzhP8FDbP/Being-LGBT-in-India-Some-home-truths.html  Ibid. Ibid. NavamySudish, Shock Treatment, Exorcism, psychotropic Drugs: Behind Conversion Therapy for Queers, The Hindu, (June 28, 2020). https://www.thehindu.com/society/it-is-dangerous-and-unethical-but-queer-people-continue-to-be- subjected-to-conversion-therapy/article31922458.ece  Kyle Knight, Section 377 is History but Young LGBT Indians Need Concrete Policies to Protect Them from Bullying, Scroll.in (June 24, 2019 2:46PM). https://www.hrw.org/news/2019/06/24/section-377-history-young-lgbt-indians-need-concrete-policies-protect-them-bullying Ibid.  Transgender person (protection of rights) act, (2019).  Himanshu Gupta, Nata Pratha -Modern in Outlook but Exploitative in Reality , INTERNATIONAL JOURNAL OF RESEARCH CULTURE SOCIETY , (Jan. 31,2018).  Nishant Sirohi, LGBTQ+: Petition for Marriage Equality filed in Kerala High Court, The leaflet, (Jan. 29, 2020). https://www.theleaflet.in/lgbtq-petition-for-marriage-equality-filed-in-kerala-high-court-2/#  AIR 2018 SC 357.  KS Sudhi, Happily Ever After: Celebrating Kerala’s Same Sex Marriage, The Hindu, (Jan. 5, 2020) https://www.thehindu.com/news/national/kerala/getting-married-post-decriminalisation/article30481047.ece#:~:text=Better%20days%20ahead%3A%20Nikesh%20Usha,Supreme%20Court%20decriminalised%20Section%20377.&text=%E2%80%9CWe%20are%20happily%20married%2C%20like%20any%20other%20couple. Dhamini Ratnam, Adoption by same-sex couples may be barred, mint, (Aug. 8, 2014). https://www.livemint.com/Politics/J3opALtv29XMrLV6keC2lO/Adoption-by-samesex-couples-may-be-barred.html Human rights, sexual orientation and gender identity, https://www.ohchr.org/Documents/Issues/Discrimination/LGBT/Res_27_32/Netherlands.pdf Section 2 of the Canadian human rights Act  A Timeline LGBTQ+ community in UK, https://www.bl.uk/lgbtq-histories/lgbtq-timeline  Pamela Duncan, Gay Relationship is still criminalised in 72 Countries, Reports find, The Guardian, (July, 27, 2017). https://www.theguardian.com/world/2017/jul/27/gay-relationships-still-criminalised-countries-report