LGBT RIGHTS IN INDIA
Updated: Oct 4, 2021
Author: Jyotsana Singh, II Year of B.A.,LL.B, Symbiosis Law School, Hyderabad.
The LGBT+ is a community that categorizes sexual minorities, lesbian/gay/bisexuals whose sexual desire varies from the cisgender basis set out by the society, making them an object of ridicule. These people fight for freedom and for equal rights, which often end up being violated. LGBT+ is an acronym for lesbian, gay, bisexual, transgender, etc. These terms are used to describe a person’s sexual orientation or gender identity. LGBT+ community consists of more groups than just lesbian, gay, bisexuals and transgender; let’s know more about them:-
The following definitions illustrate the commonalities and variations between the LGBTQI populations:
Lesbian – A girl attracted to other women physically, emotionally and mentally.
Gay – A person attracted to the same gender physically, emotionally and mentally. This term is used to establish only men or all sexual minorities.
Bisexual – A person who is attracted to both gender physically, emotionally and mentally.
Transgender – A person whose identity as male or female differs from the determination of anatomic birth sex.
Questioning – An individual, usually a young person, raises questions about his or her sexual orientation or identity and is not gay.
Intersex – Individuals born with a related indeterminate pattern of male or female sexual anatomy or biological process hormones. Conditions under which these changes are caused are usually defined as “intersex” or “DSD” (Differences of Sex Development).
The terms lesbian, gay, bisexual and transgender (LGBT) describe distinct people in the
gay culture. The first term used for folks that were “Gay” was centred totally around men. So, in an attempt to draw attention to problems specific to gay ladies, “Lesbian” is usually put first in the abbreviation ‘LGBT+’.
As for people who are bisexual or transgender who usually go unnoticed or are under-represented in analytic studies and health initiatives, it’s now considered imperative to incorporate these two clusters as separate from gay and lesbian.
ABOLITION OF SECTION 377
Unnatural offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.
Section 377, in simple terms, of the Indian Penal Code is an act that criminalizes consensual homosexuality, and the same came into force in 1862. It states that anyone who has a voluntary carnal relationship with any man, woman or animal against the order of nature shall be punished with life in prison, or for a term of 10 years in prison, with the imprisonment of either description.
The Supreme Court of India decriminalized Section 377 of the IPC in its historical verdict on 6 September 2018 and allowed gay sex between consenting private grown-ups. The Superior Court found that consensus-based gay adult sex does not contravene the law that sexual orientation is natural.
JUDICIAL VERDICTS ON LGBT+
The Indian judicial system has, through the judgement of 2009 in Naz Foundation v. NCT of Delhi and Others, which was made up of the then Chief Justice of the High Court, A.P. Shah and Justice Muralidhar, made its initial step towards equal sexual citizenry and various human rights for the LGBT community, which is seen as a landmark judgement on LGBT Community. The ruling illuminates the human rights struggles the LGBT community faces and expands its perspective by reading about the constitutional fundamental human rights granted to the Indian citizens. A decision was rendered in an uncertain state by the Indian Supreme Court to reverse an earlier verdict which brought the LGBT community back into the spectre of crime. Suresh Kumar Koushal and another v National Zurich Foundation, Judge bench, G.S. Judge and Justice S. J. Mukhopadhyay. Again, the fight of the LBGT community starts, and different violations of the LGBT community take place.
CONSTITUTIONAL RIGHTS OF LGBT+ PEOPLE
The Preamble to India's Constitution provides justice - social, economic, political, and equal status. The Constitution imparts to every person an equal status before the law and equal protection under the laws laid within the territory of India.
The word ‘every person’ here means each individual, without discrimination based on any social category, including caste, creed, religion, sex, etc.
The keyword in terms of transgender protection is the word “sex.” These homosexual communities, regardless of whether they belong to the male or female category, include the interpretation of the word ‘sex.’
In a landmark case, the Apex Court of India observed that sexual attributes are both sexual and biological. Although genitals, chromosomes and secondary sexual characteristics include biological characteristics, the gender characteristics include self-image, deep psychological or emotional sexual identity and character feel. Discrimination under Articles 15 and 16 of the Indian Constitution based on ‘sex’ includes discrimination based on sexual identity. “Sex” is confined to the biological sex of men or women and to persons who consider themselves to be either men or women. Articles 15(2) and 16(4) have also been interpreted to ensure social equality, for example, in public employment equality, and provide for States' powers to take extraordinary measures to enhance the vulnerable group which is now classified as socially or educationally backwards. The articles read in the Directive Principles of State Policy and several International Instruments to which India is a party and calls on the transgender to achieve social equality only if facilities and opportunities are expanded to allow them to live dingily and with equal status other sexes as well.
This Article includes and safeguards the right to choose one’s self-identity as one of the most important rights to a life with dignity under this Article as the most fundamental right to a human being and a right to live that must be protected by the State concerning violations. Transgender communities are entitled to a dignified life which is one of Article 21 of the Constitution of India’s most important aspects. Gender identity recognition provides recognition of their right to dignity and disregard violates the same; the right to live and express their lives without fear is fully respected. In addition, they are protected with the right to reputation. In our society, transgender was not respected, often humiliated, and beaten by the ruling authorities deteriorated the company’s reputation and its importance to society.
Different inhumane acts such as trafficking in human beings and beggary are declared an offence and punishable by law. The scope of Article 23 of the Indian Constitution is comprehensive since it covers all forms of prohibited discrimination. In society, immoral activities like prostitution are often seen. Only if there is a right against exploitation to create a free environment for the individual, everyone has a right to development.
Due to their degraded economic status, transgenders are the worst victims of exploitation; they engage in prostitution and other immoral activity. This Article aims to ensure that individual identity is independent by preventing the exploitation of men by human beings.
The developing country of India, which is known as the world’s largest democratic country, comprises a small number of homosexuals. The Indian Constitution grants the right to life, equality, equality, and so forth to its voter’s fundamental rights. However, in the Republic of India, the rights of LGBT, in particular, are violated because same-sex relationships are being criminalized. Criminalizing homosexual activities is not honest concerning the human rights of the Republic of India because the idea that homosexuality has been legalized in several countries has also been changed by several countries, including South Africa, in their Constitution. These relations were criminalized in the Republic of India, as it has become unnatural in our country. The homosexual problem in the Republic of India was a controversial subject discussed and brought our judiciary to views from the general public. Although the Republic of India is a lively UNHR member and has signed most decisions, homosexuality is not yet included in the books. According to our judiciary, these are unnatural crimes, and the right to abolish this section is currently with Parliament.
These relations were criminalized in the Republic of India, as it has become unnatural in our country. The homosexual problem in the Republic of India was a controversial subject discussed and brought our judiciary to views from the general public. Although the Republic of India is a lively UNHR member and has signed most decisions, homosexuality is not yet included in the books. According to our judiciary, these are unnatural crimes, and the right to abolish this section is currently with Parliament. The efforts for race and economic Justice have been devoted to lesbian, gay, bisexual, and transgender people for many years. LGBT organizers and groups are gradually drawing attention to the LGBT movement’s rights and hence to the economic, social, political and racial justice movement. Therefore, their rights as human being in society today have to be safeguarded.
Homosexuality, moreover, is not psychopathy. He’s just as natural as heathen. It is not managed by the human mind. In the Republic of India, the case of LGBT is worst. They are harassed, abused and scornful. The sexual rights of members of the LGBT community have been protected in European countries. The resolution that has elapsed has had a positive impact everywhere on the international organization, the United Nations. Homosexual people don’t look alien, and they’re not sick; their sexual behaviour is entirely in harmony with nature’s dictation. The Republic of India government should wipe out its conservatism and take specific steps towards the welfare of the sexual minority. The “largest reversal of the movement of LGBT rights” was the recriminalization of sexual activities among homosexuals. The rights of the entire community with great harm for the shallowness and self-esteem of the LGBT+ community had been severely affected. LGBT will continue to fight justly and fairly for social recognition. The planet might evolve, and sooner or later, the dark age of reasoning would be illuminated.
“Human rights” should not be impervious to any human, especially on the basis of their sex, race, caste, etc. Humans are all those with red blood and reason in their minds to differentiate between right and wrong. Human rights are women’s rights, human rights are gay rights, human rights are Black rights, and human rights are LGBT+. We are all human beings, and this should be an initiative to treat one another equally.