LGBT stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity. The LGBT community all across the country erupted in the jubilant celebration enjoying their victory against the 200year old British-era law that criminalized same-sex relationships.
Evolution of LGBT Rights and Laws in India
It was August 11, 1992, outside the police headquarters in the ITO area Delhi, the first known protest for gay rights in India was being held. And then two years later, in 1994, a medical team landed up at Tihar Jail to investigate the high incidence of sodomy reported from the quarters. In 1994, ABVA filed public interest litigation (PIL) in Delhi High Court, challenging the constitutional validity of Section 377- it was one of the first legal protests against government repression of the LGBTQ community.
Further, the evolution of LGBT Laws in India can be understood better with the help of case laws:-
- Naz Foundation Govt. v. NCT of Delhi
In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a park and detained a few men on the suspicion of them being homosexuals.
Judgment: Finally in 2009, the case of Naz Foundation Govt. v. NCT of Delhi, the High Court of Delhi held that Section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. Thus, it was in direct violation of their basic fundamental rights enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution.
- Suresh Kumar Koushal vs Naz Foundation
Various Individuals and faith-based groups vehemently rejected the idea of decriminalizing homosexual relationships, in light of India’s rich history bathed in ethics and tradition. They further appealed before the Supreme Court of India to reconsider the constitutionality of Section 377.
Judgment: When the community, after eight years of a long battle, was just letting out a sigh of relief, the Supreme Court on 11th December 2013, overturned the judgment of the Delhi High Court and again criminalized homosexuality. A bench of Justice GS Singhvi and Justice SJ Mukhopadhaya Court held that LGBT+ persons constituted a ‘minuscule minority’ and therefore did not deserve constitutional protection and further observed that Section 377 of IPC did not suffer from the vice of unconstitutionality.
- S. Puttaswamy v Union of India (2017)
In the Suresh Kumar Koushal V. Naz Foundation judgement when the Naz Foundation argued before the Supreme Court that Section 377 of IPC violated the right to privacy, the Supreme Court went on length giving a detailed account of constitutional jurisprudence and the evolution of the right to privacy.
However, after establishing the vital significance of this right, the court underestimated the right to privacy argument in the context of 377. The court acknowledged that although there have been cases of misuse of Section 377 against the LGBT+ community putting their privacy and integrity at stake on the pretext of blackmailing, harassing or torture, and in general. But the same has never been the objective of the section as the section itself neither authorizes nor condones such treatment and thus is not reflective of the fact that such law is beyond the vires of constitution.
Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to privacy. Puttaswamy’s decision notes also registered the criticism about minimis hypothesis principle used in the Koushal judgement and stated that the minuscule population of LGBT+ cannot be the ground to deprive them of the basic fundamental rights and such curtailment of the fundamental right cannot be held tolerable even when a few, as opposed to a large number of people, are subjected to hostile treatment.
The Supreme Court’s ruling on the right to privacy as an inherent fundamental right under Article 21 in the Indian Constitution, sparked hopes amongst the queer community that the Court would soon strike down Section 377.
And finally, on 6th of September 2018, something momentous happened that blew a life of constitutionality in the dead members of the LGBTQIA+ community, who have been subjected to de-criminalizing the homosexuality. What marked the day special for the LGBT+ community was that the Supreme Court of India delivered a historical verdict decriminalizing homosexuality by partially striking down Section 377 of IPC.
Transgender Persons (Protection of Rights) Bill, 2019
Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect the rights of the Transgender Community by prohibiting discrimination against them with regards to employment, education. Health care, access to government or private establishments. But in the name of empowering the community, the bill further exposes them to institutional oppression and de-humanizes their body and identity.
It is submitted that although the landmark 2018 court ruling and 2014 NALSA judgment were a huge leap in the advancement of LGBT+ rights movements in India. But still, the LGBT people in India are not equal and don’t have the same rights as those available to a heterosexual person. Further, they are still subjected to violence and discrimination in all spheres of life. It is very important to educate people about LGBT rights.
Human rights are natural rights that are inalienable, indestructible and are conferred upon everyone since birth. It is essential that people know of the fact that homosexuals are not sick, they are not aliens, unlike sexual orientation is perfect with the dictate of nature. LGBTQ rights should be recognized as part of human rights.
Also, DOWNLOAD OUR FREE LEGAL MAGAZINE – LAW MANTHAN 1ST EDITION
(MARCH – APRIL)