This article was written by – Konagalla Sai Charishma
Whereas the two-year milestone of the repeal of the anti-LGBTQ statute Section 377 should be a big celebration for LGBTQ Indians. On September 6, 2018, the Indian Supreme Court unanimously decided in favour of decriminalizing homosexuality, repealing a statute enacted under colonial British control. It was the largest single decriminalization of being homosexual in human history, and it meant a fifth of the world’s population was legally permitted to be LGBTQ.
The COVID-19 has severely harmed LGBTQ advocacy, while governments are exploiting the virus as a pretext to postpone assessments of such essential human rights. Many nations, including India, have deteriorated as a result of the coronavirus. When you ask me, nobody can keep them away from them because the Supreme Court decided that Section 377 wasn’t reversible. It has granted LGBTQ person rights, and no board can dispute it, and the parliament cannot modify the language. The majority of LGBTQ Indians are unaware of their rights. The community needs to be aware of their rights, which is why the majority of them are exploited; mental and physical blackmail is still prevalent.
The word homosexuals mean “of the same sex,” as it is a combination of the Greek prefix homo, which means “same,” and the Latin root, which means “sex.” Homosexuality is a sexual orientation that is defined by sexual attraction or romantic affection between persons who are of the same gender. People who are homosexual, primarily men, are referred to as “gay,” whereas gay females are referred to as “lesbians.”
Oxford Dictionary stated Homosexuals as a unit are those whose sexual preference is of the same sex.
Black’s Law Dictionary, all those people that attract the folks of the same-sex term to be as homosexuals.
LGBT is an acronym that stands for Lesbian, Gay, Bisexual, and Transgender.
- Lesbian: Feminine attracted to another feminine sexually, physically, romantically and /or showing emotion. This term asks same-sex ladies who get sexually hooked up. The term Lesbian has been derived from the name of a Greek island named “Lesbos”.
- Gay: Male who is sexually, romantically, physically, and/or emotionally attracted to another guy. This phrase refers to guys of the same sex who have been sexually connected.
- Bisexual – Attraction of someone towards male or feminine sexually, physically and showing emotion.
- Sexuality – A persons sexual desire, sexual acts, orientation, pleasure exploration.
- Transgender is a word used to describe someone whose self-identify as male or female differs from their physical sex at birth.
Shakuntala Devi published the first study on sex in India in 1977. While Section 377 convictions were uncommon, with no convictions for homosexual intercourse in the twenty years leading up to 2009, Human Rights Watch reported that the law was used to harass HIV/AIDS prevention activists, as well as sex employees/workers, men who have intercourse with men, and various LGBT groups. Sec 377 of the Indian Penal Code, 1860 made homosexual relations a criminal offence till 200938. It was also deemed illegal for someone to willingly engage in “carnal intercourse against the natural order.” Later it was decriminalized. Section 377 of the Indian Penal Code made gay intercourse a criminal offence. It was also ruled that willingly engaging in “carnal intercourse against the natural order” was unlawful.
Concept of LGBT:
The terminology individuals use and identify with when it comes to sexuality can vary greatly from culture to culture. The words “lesbian,” “gay,” “bisexual,” and “transgender” (LGBT) are included in this study because they are the most widely used English terminology in the international human rights debate. This is not meant to minimise the diversity of other words and identities, nor to dismiss the cultural meanings of these labels. Several forms are employed in this study, largely interchangeably, in the interests of readability and respect for the wealth of words. In India, there is legal discrimination against sexual minorities. The criminal and civil legal systems are both used to discriminate against sexuality, minorities.
Legal Provisions and Constitutional Protection of LGBT in India
Right to privacy of LGBT people:
The right to privacy is included in the right to life and private liberty. The right to privacy is not explicitly stated in the Indian Constitution as a basic right, but it has been emphasised by the Supreme Court on several occasions and is thus regarded to be in the proximity of fundamental rights. As a result, the state’s right to privacy cannot be curtailed under any circumstances.
Article 14 provides the right to quality:
It states that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
Article 15 provides non- discrimination:
Art 15 (1) and 20 make it illegal for the government to discriminate against citizens based on their religion, caste, colour, sex, or place of birth, or any combination of these factors.
“Whoever willingly has sexual intercourse against the order of nature with any man, woman, or animal must be punished,” according to Section 377 of the Indian Penal Code 1860, a legacy of British India. Private consensual intercourse between adults of the same sex was included. The provisions of Section 377 remain in effect following the recent Supreme Court decision in situations of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.
In Navtej Singh Johar vs. Union Of India, Section 377, which allowed adults to engage in consenting homosexual acts, was knocked down by the Delhi High Court.
In Suresh Kumar Koushal Case (2013), The Supreme Court reversed an earlier Delhi High Court decision from 2009 that decriminalised homosexual activities and recriminalized homosexuality. The Supreme Court claimed that less than 200 people had been punished under Section 377 in the previous 150 years. As a result, the “plight of sexual minorities’ ‘ could not be utilised to determine the legality of a statute. Furthermore, the Supreme Court held that it was up to the legislature to decide whether or not to repeal section 377 of the IPC.
In Justice K.S. Puttaswamy vs. Union of India (2017), The Supreme Court of India held that the Fundamental Right to Privacy is inextricably linked to life and liberty, and so falls within Article 21 of the Indian Constitution. The Supreme Court ruled that physical autonomy was an essential component of the right to privacy. This bodily autonomy includes an individual’s sexual preference.
In Navtej Singh Johar vs. Union Of India, Homosexuality has been decriminalised. In the Suresh Kumar Koushal case (2013), the Supreme Court held that because the LGBTQ population is a small minority, there was no need to decriminalise gay intercourse.
In India, sexual minorities are one step closer to living in dignity. The LGBTQ community will be allowed to express their sexual inclinations openly. They will no longer suffer discrimination in getting health care and will no longer be harassed by the police. In the LGBTQ community, decriminalisation has also been related to improved self-acceptance and psychological and emotional safety.This decision will prompt the LGBTQ community to seek further progressive legislation, such as gay marriage laws, the freedom to create partnerships, inheritance, equal pay for equal work, and protection against gender-identity-based discrimination, among other things. The decision has created grey areas, and rules will be needed to deal with situations such as when a gay person withdraws his or her “permission” and files a complaint against their partners.
Rights of LGBT
Homosexual Activity in India:
Since September 6, 2018- It is Legal. On July 17, 2018, the Supreme Court declared it unlawful. The Indian Criminal Code’s Section 377 is being revised. The prohibition was simply overturned today.
In India, same-sex marriage is illegal. Since December 11, 2013, Unrecognized- Several same-sex marriage applications are now pending in the courts. While same-sex marriage is illegal, cohabitation and “live-in relationships” are protected by the law, according to the Uttarakhand High Court on June 12, 2020.
Despite the Supreme Court’s rulings, there is still a lot of discrimination against sexual minorities in the workplace, in health care, and personal relationships. The Union of India has lately spoken out against any effort to legalise same-sex weddings in India. According to the Union of India, the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a basic right for same-sex couples to marry.
Even though there is no regulation governing same-sex couple weddings in India. LGBT individuals can still marry, and the courts have recognised these types of unions in the past. The Haryana court essentially recognised marriage between two lesbians after homosexuality was decriminalised in 2009. However, the Supreme Court’s repeal of Section 377 in 2019 was a more important decision. In 2019, a Madras High Court panel upheld a biological man’s marriage to a trans woman under the Hindu Marriage Act 1956, and the court also ordered that the marriage be registered.
Right to change legal gender in India:
In India, the right to alter one’s legal gender is lawful, although it needs surgery.
Since April 15, 2014, it’s been legal, although it necessitates surgery. The Indian Supreme Court acknowledged the third gender as a way for transgender people to identify themselves in official papers. This third gender, on the other hand, is not what we usually think of when we think of a gender-queer person.
Single individuals and LGBTQIA+ couples are barred from having their children through surrogacy, according to a new surrogacy bill enacted by the government.
Another essential thing to note is that persons who are not members of the LGBT community, such as single women, single men, and others, can adopt or become legal guardians, but LGBTQIA+ couples are unfortunately not allowed to adopt or become guardians.
LGBT employment discrimination in India:
In India, sexual orientation and gender identity are used to discriminate against LGBT people in the workplace. Since August 15, 1949, there has been a focus on sexual orientation and gender identity. Protections against transgender discrimination are still in the works. Human rights institute protects against discrimination based on sexual orientation. Full anti-discrimination protections are still in the works.
According to a 2016, LGBT workplace study, more than 40% of LGBT persons in India have been harassed at work because of their gender or sexual identity. Many LGBT persons are forced to conceal their sexual orientation for fear of prejudice or losing their jobs. As a result, access to employment and workplace discrimination continues to be a problem for the LGBT community.
Transgender Persons (Protection of Rights) Bill 2019
As previously stated, the Transgender Persons (Protection of Rights) Bill 2019 has several flaws, particularly in terms of how it determines whether a person is transgender or not. However, it is worth noting that the bill does protect the gender community in certain aspects of employment.
The law bans any person or organisation from discriminating against transgender people in areas of employment, recruiting, promotion, and other relevant concerns, as stated in subsections (b) and (c) of Section 3. However, until and unless the government makes changes to the way transgender people must be certified, all of these safeguards will be ineffective.
Given the discrimination and harassment that LGBT+ individuals encounter in the workplace, the government must pass new legislation or alter current ones to make workplaces safer for LGBT+ people. Furthermore, any laws on transgender rights must be consistent with the NALSA decision and include reservations in public education and employment. The rules must also be drastically rewritten to ensure that LGBT+ couples receive all of the employment advantages that a heterosexual pair receives.
Equal age of consent in India:
In India, the age of consent is the same for everyone. Equal since April 2, 2013. The Criminal Law Act of 2013 increased the age of consent to 18 for both gay and heterosexual intercourse.
Although the historic 2018 court judgement and the 2014 NALSA judgement were major steps forward in the progress of LGBT+ rights movements in India, it is said that there is still a long way to go. However, LGBT persons in India are not treated equally and do not have the same rights as heterosexual people. Furthermore, they continue to face violence and prejudice in many aspects of life.
The importance of educating people about LGBT rights cannot be overstated. Human rights are unalienable, unbreakable rights that are bestowed upon everyone from the moment they are born. People must understand that homosexuals are not diseased, that they are not aliens, and that their sexual orientation is entirely in line with nature’s dictates.
LGBTQ rights should be included in the definition of human rights. Article 14, 15, 19, 21, 29 all prohibit non-recognition of same-sex marriages, as well as adoption, guardianship, surrogacy, IVF, and lack of access to safe and LGBT+ inclusive schools, universities, and workplaces. In addition, discrimination based purely on sexual orientation violates Articles 14, 15, and 21 concerning the Army and Navy.
As a result, it is critical that the government shed its conservative character and take real efforts to end the shame, prejudice, and abuse that LGBTQIA+ individuals face. It is past time for the government to draught new laws or change current ones regarding marriage, adoption, guardianship, inheritance, educational institutions, employment, and healthcare services, among other things.