Rights of LGBTQ Persons in India - Evolution and Comparison

A comparative analysis of the rights of LGBTQ people in India with the rights enjoyed by them in other countries, while taking into consideration the Fundamental Right to equality, freedom, expression, privacy, personal liberty and a life with dignity. The article discusses and analyses case laws, parliamentary enactments, and the views of the society towards the LGBTQ community.

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With the youth becoming more conscious of their rights through information exchange via social media, online education platforms, and use of internet in general, the world is heading rapidly towards individualism from collectivism. Individualism is defined as "a belief that individual people in a society should have the right to make their own decisions, etc., rather than being controlled by the government."

The idea of individualism has ignited a wildfire in almost all corners of the world, emphasizing on recognition of human rights, right to equality, right to freedom of speech and expression, among many others. The human rights of lesbian, gay, bisexual, transgender and questioning (LGBTQ) people is an important issue that has gained sharp focus through this movement.

The idea of human rights rests on the premise that all humans are equal. It revolves around the belief that all humans have dignity and anything that violates such dignity is a violation of the basic fundamentals of humanity. Most constitutions across the world recognise the idea of such fundamental rights that guarantee equality, freedom, and personal liberty. Such rights have been successfully enforced in democracies such as the United States and India. Despite this, many societies in the world continue to hold a bias against the people from the LGBTQ community, subjecting them to grave inequality and discrimination.

Evolution of Laws Related to Homosexuality in India

I. A Brief History:

Historically, same-sex relations and gender fluidity have been prominently featured in ancient Indian texts and sculptures. The law criminalizing homosexuality was formally introduced to India in 1862 by the British colonial rulers when they included it under "unnatural offences" in section 377 of the Indian Penal Code. This law punishing anyone who voluntarily had "carnal intercourse against the order of nature" with any man or woman, continued to be the biggest impediment to the full expression of sexuality and personhood of LGBTQs in India even in the 21st century.

By this time, many countries in the world had shed their colonial and archaic yoke – starting with the Netherlands, which became the first country to legalise homosexuality in 1811 itself. England too decriminalised homosexuality in 1967.

II. The Legal Battle

A. National Legal Services Authority v. Union of India, 2014

It was only in 2014 that India took a significant step towards recognising the rights of people belonging to the LGBTQ community, when the Supreme Court in National Legal Services Authority v. Union of India recognized transgender as the "third gender." Following this judgment, transgender people who were previously compelled to recognize themselves as "male" or "female" could legally recognize themselves as transgender or the "third gender". This judgment further established that they were guaranteed all the rights enshrined as Fundamental Rights in Part III of the Constitution of India.

B. Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., 2017

The second significant development towards recognizing the rights of LGBTQ people in India came through the Supreme Court's judgment in K.S. Puttaswamy v. Union of India, 2017, where it held that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. This judgment further overturned the 2013 Supreme Court ruling in Suresh Kumar Kaushal v. Naz Foundation, where it had held that LGBTQ persons constituted a "minuscule minority" and therefore were not entitled to constitutional protection.

In its K.S. Puttaswamy judgment, the Supreme Court rejected the "miniscule minority" hypothesis, stating that the minuscule population of LGBTQ people cannot be the ground to deprive them of their fundamental rights and that such curtailment cannot be held tolerable even when a few, as opposed to a large number of people, are subjected to hostile treatment. This judgment also recognized that sexual orientation of a person falls within the ambit of right to privacy, thereby clearing any legal hurdles that stood in the path of recognizing the rights of the LGBTQ community and paving the way for the historic Navtej Singh Johar v. Union of India judgment.

C. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, 2018

Finally, on 6th September, 2018, the Supreme Court in Navtej Singh Johar v. Union of India struck down the part of section 377 of the Indian Penal Code (IPC) which criminalised "consensual sexual conduct between adults of the same sex" and therefore legalised consensual sex between people of the same gender. This was the result of a long legal battle that began in 2001, when a writ petition was filed in the Delhi High Court challenging the constitutionality of section 377 of IPC on grounds of violating right to equality, right to freedom of expression, and right to life and personal liberty, including right to privacy, dignity and health.

III. A Brief Timeline of the Legal Course Followed by Section 377 of IPC

  • 1862 – Indian Penal Code is enforced. Homosexuality formally becomes a criminal offence under section 377 of IPC.
  • 1950 – Constitution of India is enforced. It guarantees right to equality, right to freedom of speech and expression, and right to life and personal liberty as Fundamental Rights under Article 14, Article 19(1) and Article 21, respectively.
  • 2001 – Naz Foundation v. Govt. of NCT of Delhi – A writ petition is filed in the Delhi High Court challenging the constitutionality of section 377 of IPC.
  • 2009 – The Delhi High Court pronounces its judgment in Naz Foundation v. Govt. of NCT of Delhi that Section 377 violates the Fundamental Rights enshrined under Article 14, Article 19(1) and Article 21 of the Constitution.
  • 2013 – Suresh Kumar Kaushal & Anr. v. Naz Foundation & Ors. – The Supreme Court overturns the Delhi High Court judgment in Naz Foundation v. Govt. of NCT of Delhi and reinstates section 377 of IPC.
  • 2014 - National Legal Services Authority v. Union of India – The Supreme Court legally recognizes transgender as the "third gender" for the first time; declares that third gender persons are entitled to be treated 'equally' and with 'dignity' as guaranteed by the Fundamental Rights under the Constitution.
  • 2017 – Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. – The Supreme Court holds that the right to privacy is protected as a Fundamental Right under Articles 14, 19 and 21 of the Constitution.
  • 2018 - Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice – The Supreme Court partially strikes down section 377 and decriminalizes homosexual sex between consenting adults.

 

IV.    Legislation

While the judgments pronounced by the Supreme Court in 2014, 2017 and 2018 are considered landmarks both in terms of their expansive reading of the constitutional rights and in empowering LGBTQ persons, they were still limited in their scope of applicability.

In the constitutional setup of India, the law making power rests with the Legislature. The enactment of Transgender Persons (Protection of Rights) Act, 2019, by the Legislature was supposed to protect the rights of the transgender community by prohibiting discrimination against them in employment, education, healthcare, and access to government or private establishments. However, it was rejected by the Trans community as it had several clauses that were detrimental to their Fundamental Rights, such as, the mandatory certificate of identity recognising them as "transgender" to be issued by a district magistrate only after their sex reassignment surgery. Further, the Act made no provisions to ensure equality of opportunity in education and employment as had been directed by the Supreme Court in its National Legal Services Authority v. Union of India judgment.

Despite the major victories in the judicial battle, the LGBTQ people in India are still miles away from being recognized as equals and free individuals in the society in the absence of adequate anti-discrimination laws. The religious, linguistic, and cultural diversity of the nation and the lack of literacy and awareness among the people present a huge hurdle in the path of acceptance of LGBTQ people and the recognition of their rights. These hurdles can only be crossed by thoughtful legislation.

Status of Homosexuality across the World

By the time India decriminalised homosexuality in 2018, the world had already moved ahead. In 1989, Denmark had become the first country in the world to enact registered partnership laws for same-sex couples, with almost the same rights as marriage. Norway, by 1993, had allowed civil unions of gay couples. Some of the most important developments that have happened thereon:

  • One of the most significant developments at the international level came at the start of the 21st century when the Netherlands became the first country in the world to officially recognise same-sex marriage and grant joint adoption.
  • In the United States, California became the first state to allow same-sex marriage in 2008 and, in 2015, the U.S. Supreme Court extended this privilege to all the states of the U.S. by ruling that same-sex couples have a constitutional right to marry.
  • The United Nations Human Rights Council passed its first resolution recognizing LGBT rights, in 2011.
  • 2018 was a significant year for the LGBTQ community across the world:
    • The WHO reclassified "gender incongruence" under "conditions related to sexual health" as opposed to "mental, behavioural and neurodevelopmental disorders" under which it was listed earlier.
    • Sydney's Harbour Bridge was lit with rainbow fireworks to celebrate the start of 2018 which marked the beginning of same-sex marriages in Australia.
    • In a landmark ruling, the European Court of Justice granted same-sex spouses of European Union citizens the same residency rights as heterosexual spouses.
    • This was the year the Supreme Court of India decriminalised homosexuality.
  • As of January 2021, same-sex marriage has been recognized in 29 countries.
  • Contrarily, homosexuality is still punished with death penalty in some counties, including Iran, Afghanistan, Nigeria, Saudi Arabia, and United Arab Emirates, among others.

 

The table below shows the status of LGBTQ people in some of the most important countries in relation to India:

Where India Presently Stands:

While the constitutions of Mexico, New Zealand, Portugal, South Africa and Sweden provide protections based on sexual orientation, India still lacks a basic law that recognises the protection of rights of transgender persons or criminalizes any harassment or discrimination against them.

Besides allowing same-sex marriages, adoption and surrogacy, countries such as Bolivia, Ecuador, Fiji, Malta and the UK have gone steps ahead and enshrined the right to equality for citizens on the basis of sexual orientation and gender identity in their constitutions. India, however, has no legislation that would clarify the rights of people from the LGBTQ community with respect to marriage, adoption, surrogacy and health.

A careful observation of politico-legal landscape of progressive and developed countries, reveals that India still has a long way to go in ensuring the right to equality and right to life and personal liberty of the LGBTQ community. Indian society lacks the education and awareness to develop a mind-set of acceptance towards the people of this community. The lack of adequate legislation and anti-discrimination laws have prevented any progress from the 2018 Navtej Singh Johar judgment of the Supreme Court.

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