- Gurpreet Kaur
Living in such a democratic and independent country we still feel backward, knowing all the concepts of the lengthiest and bulkiest constitution it's a shame on our part that we have no provisions relating to the rights of the LGBTQ community. Imagine yourself in a position where you are not allowed to reveal your sexual identity, if you do so you are treated as a diseased person having a psychological problem. People of this community are given names like hijras and treated as very ill-mannered. People of this community are regularly subjected to harassment in the workplace or other places, no proper education facilities, dropping out from the school at a very early age due to the mental disturbance caused by the people, no job employments, lack of proper family support, in short discrimination in every aspect is faced by the people of this community. So, this paper gives a brief description of the concept LGBTQ community, the place from where this concept arose and introduced, this paper also highlights the history of the LGBTQ community in India and the introduction of section 377 in India, what was the situation in India after the Britishers left India and the Judicial pronouncement on a sec. 377.
Introduction to the Concept of LGBTQ+ community
This term is most commonly called LGBT and is also referred to as LGBTQ+ community or GLBT community or Gay community. The term LGBTQ+ community is the initialism of Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex, Asexual, Ally, +Pansexual, +Agender, etc and other communities as well. Here, the word lesbian means a female who is attracted to another female, Gay is referred when a male is attracted to another male, Bisexual is used when a male or female who are attracted to both male and female, while Transgender is an umbrella concept for the people, these people have different gender identity and it differs from what it was originally given to them at time of birth, Queer is another umbrella concept it was earlier used as pejorative in opposition to those having same-sex desires, etc.
The concept of the LGBTQ+ community was introduced by many different scholars and experts early in the era of mid-twenties. The British sexologist named Havelock Ellis used to refer as the term sexual ‘inverts’ who are now known as ‘gay’ or ‘transgenders’, similarly, there was a German scholar also human activities named it as ‘Urning’ which he said to be the third gender existed between the community of male and female who is now named in different categories of communities as gay, trans or queer. The introduction of the concept ‘homosexual’ came up in the year 1869 by a doctor named Karoly Maria Benkert from Hungarian, consequently, other terms were also established later as the term Gay came in the year 1960s. As the establishment of new concepts were taking place people started to not accept them as part of the community and here, many rallies and march were taken place to make people aware of their rights.
Brief History of LGBTQ+ in India/ Introduction to Sec.377 in India
LGBTQ is a comprehensive term and performs well as an ‘umbrella term’. But we have an irony, that it’s been raining on our parade quite a bit over the last few years. India is a South Asian country with a complicated history and a lot of different people from all over the world came and stayed in India in which the British were the last ones to stay and ruled India over 200 years and left in the year 1947. It is the British Empire who criminalizes sexual activities as “against the order of nature” also arguably comprises of homosexual sexual activities, under the sec.377 of the IPC (Indian Penal Code, 1860) in the year 1861. So, sec. 377 talks about unnatural offenses. To put these factors into perspective, here are some other things from 1861 which no longer exist – ‘Sati’, ‘Telegraph’, Stream locomotive, etc, and the sec.377 stills here. It is believed that the term homosexuality is a western import, but this is not the fact, homophobia is the western import as evidence given by the establishment of sec. 377 is not just India but was also introduced in various former British colonies.
What happened to the LGBT laws after the British left India?
In the year 1947 Shakuntala Devi, mathematician extraordinaire, published the first study of homosexuality in India which called for decriminalization, complete acceptance, tolerance, and sympathy. Although the book was not noticed. In 1981, the first ‘All India Hijra Conference’ took place in Agra in which 50,000 members of this community participated from all over the country. In 1994, the Hijras were legally permitted voting rights as a third sex gender. The first petition challenging sec. 377 was registered in the year 1994 by the ‘AIDS Bhedbhav Virodhi Andolan’, however, the petition was declined. In 1999, Kolkata became the host to the first Pride March organized in South Asia. In December 2015, a statement for the decriminalization of sec. 377 was introduced in the parliament but was rejected by a minority. By this time-period UK had made same-sex marriage legal, that is the country that gave us this section decriminalized it in their country.
Judicial Pronouncement on section 377 of Indian penal Code
The first case which discussed sec.377 was the Naaz Foundation case of 2009, Naaz Foundation is an NGO which deals with health issues like AIDS/HIV. In the Naaz Foundation v. Govt. of NCT Delhi case the issue raised was should we remove sec. 377? This question was divided into two different angles- first taking into consideration of Art. 21 ‘Right to Life’, the court stated that without dignity and privacy no person can enjoy his/her life. The Second argument was about the ‘right to equality’ concept i.e. art. 14 and 15 and claimed that sec. 377 is a violator of these articles because it practices unreasonable discrimination and it describes homosexuals as a class and also criminalizes their consensual sex. Another argument was based on art. 15-discrimination based on sex is prohibited, also stated that here the meaning of sex is not limited to biological sex but it also includes the idea of sexual orientation. Further, this argument was used in many cases and was concluded, as compared to the biological test psychological test is given more weightage. In the landmark judgment of Naaz Foundation, 2009 Delhi High Court stated the part of sec. 377 which criminalizes the homosexual act should be declared as unconstitutional but the amendment part was left in the hands of parliamentary.
Then approached the 2013 case of Suresh Kumar Koushal v. Naaz Foundation, in which, two arguments were raised first- homosexuality is a criminal offense and only parliament can decriminalize the act, interference of court will not be entertained; second – you cannot extend the right to privacy that you can commit an offense within this right, therefore, right to privacy will not cover homosexual acts. This judgment made a lot of international organizations pull back from India and people who started revealing their identity after the Naaz foundation judgment of 2009 were seen as criminal after this judgment of 2013.
Then arose the 2014 case NLSA judgment that is NLSA v. Union of India and Ors. In this case, a loophole was introduced that all the existing laws of India are binary gender-based i.e. the law only focuses on either male or female, and the rights of the transgender community are not protected by any provisions made, which is the main reason of transgender community facing discrimination. To deal with this loophole Supreme Court recognized the multi-facet rights of transgender communities. Supreme Court said that article 14 includes the rights of any person, the word any person includes men, women, and transgender as well. Secondly Art. 15 and 16 prohibits gender-based discrimination therefore if there is any discrimination being practiced based on sexual orientation then this will be violative of art. 15 and 16. Another important argument was related to Art. 19 the court said that Privacy, Gender Identity, and Integrity is protected under Art. 19(1)(a). Then the court submitted that the right to live with dignity comprises of the right to choose Gender Identity and we need to bring such provisions which focus on the present-day needs. With the help of this judgment Right to Self-Identity their Gender, Equal treatment of all people, and legal acknowledgement of Gender Identity was granted that consisted of men, women, and transgender.
The next case was of the 2017 Puttaswamy judgment. In this case of Justice K.S. Puttaswamy v. Union of India, the court asserted that the right to privacy is our fundamental right. To determine this case a bench of nine justices sat. Justice Chandrachud said that it is the responsibility of the Supreme Court to rectify the mistake committed by Supreme Court in the Suresh Kumar Koushal case, he put forward that sexual orientation is a crucial attribute of privacy and this attribute is protected by many rights present in Part-3. In this case, the court rejected the idea of ‘minuscule minority.
One of the controversial cases that partially declared sec. 377 as unconstitutional was named Navtej Singh Johar v. Union of India. The bench of five justices sat to deal with this matter, they were Justice A M Khanwilkar, Justice Rohinton Nariman, Justice Indu Malhotra, CJI Dipak Mishra, Justice DY Chandrachud. Taking support of the art. 14 Supreme Court said that criminalizing sexual acts of two consenting adults only for the reason that they are homosexual, is not a valid Intelligible Differentia nor it is a Rational Nexus and such traditional norms based on morality like ambiguous subjective tests should be given up. The next contention was related to art. 15, Supreme Court stated that the approach of Delhi High Court in the case Naaz foundation of 2009 that stated the concept of word sex includes biological sex, as well as sexual orientation, was the right approach, supporting art. 19 J. Chandrachud submitted Human Sexuality cannot be defined narrowly, discrimination against the LGBTQ community is unconstitutional. Article 19 protects the rights of every individual, that they can openly express their sexual orientation. Lastly keeping a note of article 21 Supreme Court held that the Right to Life and Liberty includes the Right to Privacy, Dignity, and Autonomy, therefore, by applying sec. 377 you cannot impose restrictions on any individuals’ rights.
It was a great turn in law and in the life of the LGBTQ community when this section 377 of IPC was decriminalized, although it was a long way to go but the amendment made was a great achievement. However, it still has a long way to go as there still exist many laws which need to be recognized by law, for instance, same-sex marriages are not legalized, no provisions present for same-sex couples for the adoption of a stepchild, no rights for joint adoption by same-sex couples, the right of adoption by transgender couples implemented only in Tamil Nadu and Kerala, Gays and Lesbians are still not allowed to serve openly in the military, right to change legal gender available only in Tamil Nadu and Kerala, Homosexuality has been declassified as an illness since 2014, no provisions present for IVF for lesbians, there are no rights available for gay male for commercial surrogacy. These are some laws that have been amended in some parts of India while there is still a long way for the amendment to be made.
Jeffry J. lovannone, A Brief History of LGBTQ Initialism, 2018.
Namma Pride, A Brief History of LGBT Community in India, 2017.
www.gaycenter.org; Jeffry J. lovannone, A Brief History of LGBTQ Initialism, 2018.  SCC OnLine Del 1762;   1 SCC 1.   5 SCC 438;  AIR  SC 4161;   10 SCC 1.
a law student from,
Faculty of Law, Jagran Lakecity University,