OPEN THOUGHTS, CLOSED OPPORTUNITIES: LGBTQ’S FIGHT FOR LEGAL RECOGNITION BY - SYEDA FAUZIA

OPEN THOUGHTS, CLOSED OPPORTUNITIES: LGBTQ’S FIGHT FOR LEGAL RECOGNITION

AUTHORED BY - SYEDA FAUZIA

Abstract

Abbreviated as LGBTQ stands for referring to lesbian, gay, bisexual, transgender, and the queer com- munity. The term as such replaces the terms “gay” and lesbian” in order to represent the community’s multiple diversity. LGBT rights have been debated over many years and continue to this day. Legal recognition ensures that the community will not be subjected to discrimination, ill-treatment, and seclusion from society. In addition to this, it will also ensure that they will not be stripped of their fundamental rights as citizens of India. This article goes on to discuss various cases and instances that highlight the difficulties the community faced as well as laws and landmark judgements that took active steps in protecting the safety of the sexual minority.

Introduction

On 24 February 1988, two police constables in Madhya Pradesh, Urmila Shrivastava and Leela Namdeo, found themselves on the front page of The Times of India “Lesbian Cops’ in M.P. to Challenge Dismissal,” the headline read.[1] “The two women were dismissed from service after being starved, threatened, and tortured. The LGBTQIA+ movement at the time was galvanised by the couple’s act of bravery. However, many outside the movement believed that the two had “become” lesbians because of being “westernised”. Urmila and Leela, however, did not identify with the word ‘lesbian.’ They took their dismissal to court primarily in the fear that their future incomes were now under threat.”[2]

Many instances like these led to landmark judgements that laid the foundation in establishing major legal changes to come. To discuss these landmark judgements, we need to first address the problematic part of the law and to understand that we need to first briefly understand the history of it all.

History:

Many historical scriptures of great importance recognize the third sex and describe the same with great detail. However, there were also scriptures that explained rigorous and horrendous punishments for those who practiced homosexuality. Manusmriti being one of them prescribed that “if a girl has sex with another girl, she is liable for a fine of two hundred coins and ten whiplashes. But if lesbian sex is performed by a mature woman on a girl, her head should be shaved or two of her fingers cut off as punishment. The woman should also be made to ride on a donkey. In the case of homosexual males, Manusmriti says that sexual union between two men brings a loss of caste. If a man has sex with non-human females or with another man or indulges in anal or oral sex with women, he is liable for punishment as per the "Painful Heating Vow".”[3]

During British rule, Section 377 was codified and came into force in the year 1861 in order to criminalize homosexual activities. The colonial legacy of Section 377 carried on for years to come. Some instances can be seen in The Goa Inquisition which once prosecuted the capital crime of sodomy in Portuguese India.[4]

Section 377 of the Indian Penal Code states:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with 1[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.”[5]

In 2009, the Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377, which criminalized same-sex relationships, was unconstitutional, and struck the law down, decriminalizing homosexuality in India for the first time.[6] The verdict, which was hailed as a victory for LGBT rights, was challenged by several anti-gay rights groups on religious, political, and social grounds, who claimed that the right to privacy did not include the right to commit an offence and that decriminalizing homosexuality would affect the institution of marriage.[7]

It is important to mention that in the case of Naz Foundation vs. Government of NCT and Ors.[8] para 33 mentions the case of Eisenstadt v. Baired[9]  “wherein the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it observed: It is true that in Griswold the right of privacy in question inhered in the marital relationship If the right of privacy means anything, it is the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [para 453].”[10]

According to Ipsos' online Global LGBT+ Pride 2021 survey, 59% of Indian respondents support LGBT people who speak openly about their sexual orientation and gender identity, and 39% believe that LGBT people are affectionate in public (such as kissing or holding hands).[11] “56% openly endorse lesbian, gay and bisexual athletes on sports teams, and 55% endorse more LGBT characters in television, film and advertising. According to the same survey, 17% of Indians have a homosexual (including gay and lesbian) relative, friend, or work colleague, and 21% have a bisexual relative, friend, or work colleague. 10% have relatives, friends, or work colleagues. Twelve per cent of transgender co-workers have relatives, friends, or work colleagues who are non-binary, non-conforming, or gender biased.”[12]

In K.S. Puttaswamy v. Union of India & Ors.,[13] a 9-judge Bench of the Hon’ble Supreme Court concluded that the dignity of individual, human equality, and the search for liberty are the foundational pillars of the Indian Constitution. The Supreme Court went on to say that dignity is a constitutional ideal enshrined in the Preamble. The right to privacy, self-determination and autonomy are all facets of the right to dignity protected by the Indian Constitution. The Court also stated that family, marriage, procreation, and sexual orientation are all important aspects of an individual’s dignity.”[14]

In the year 2018, the Supreme Court of India partly decriminalised the Section 377 of the Indian Penal Code, 1860, in the case of Navtej Singh Johar v. Union of India AIR 2018 SC 4321 by the Constitutional Bench headed by then CJI Justice Dipak Mishra.[15] In this case, the Supreme Court declared the following:[16]

1. “Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or third gender.
3. The Supreme Court directs the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission to educational institutions and for public appointments.
4. Centre and State Governments are directed to operate separate H.I.V. Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for S.R.S. for declaring one's gender is immoral and illegal.
6. Centre and State Governments should take proper measures to provide medical care to T.Gs. in the hospitals and provide them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
8. Centre and State Governments should take steps to create public awareness so that T.Gs. will feel that they are also part and parcel of the social life and be not treated as untouchables.
9. Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.”[17]

Approaches of different states:

1. “In June 2022, the Kerala High Court ordered that a lesbian couple could live together, despite opposition from their families. In December 2021, the Uttarakhand High Court ordered a gay couple to be protected by the police. In November 2019, the Punjab and Haryana High Court ordered the police to protect a gay couple threatened by their families. In October 2018, the Kerala High Court said that a lesbian couple was entitled to live together.”[18]

1. Karnataka: “The 2017 National Transgender Policy was issued by the Government of Karnataka in October 2017 and aims to raise awareness of transgender people in all state educational institutions. Educational institutions address issues of abuse, violence and discrimination against transgender people. An oversight committee was also set up to investigate allegations of discrimination.”[19]

1. Bihar: “The Bihar government announced the establishment of a transgender welfare organization in July 2019. The commission will investigate and report on the social and legal difficulties faced by transgender people in the state and provide financial assistance up to Rupees - 150,000 for gender reassignment surgery. Additionally, anyone who denies transgender people access to housing or medical facilities could face up to her two years in prison.”[20]

Conclusion:

Every year, typically in the month of June, the LGBT community commemorates what we call the “Pride Month”. The pride month is often celebrated to celebrate the LBGT community diversity

and culture - after a series of riots and protests that took place in the early 70’s for gay liberation and equal rights for the community under the law.

After many decades the legal battle for LGBT rights and recognition has fought its way through conservative thinking in India. However, there’s a long way to go, the LGBT community still face harassment and exploitation to a greater extent. It is important to note that the rights guaranteed by The Constitution of India are rights that are inherent to us for the very fact that we are humans. Therefore, it is important that we as a society need to unite and fight together for the voiceless and assist them in granting the rights that they rightfully deserve. It is also important that we educate and spread awareness on the same so as to ensure that homosexuality is not seen as something unnatural or considered a mental illness. Discrimination of any kind against any gender violates Articles 14,15 and 21 of the Indian Constitution. The Supreme Court’s decision on decriminalizing Section 377 of the Indian Penal Code, 1860 was a vital step in safeguarding the LGBT community’s right to live a dignified life.

The backlash and the cruelty that the community still faces is saddening, to say the least. The situation becomes more perplexing when the community faces violence within their own family and as such it is the duty of the lawmakers to ensure that every minority community is protected under the purview of the law. Intrinsically, the Judiciary has actively addressed the issue that concerns same-sex rights.

[1] Coupling (fiftytwo.in)

[2] Who were the first lesbians to get married in India? (fiftytwo.in)

[3] 10 instances of homosexuality among LGBTs in ancient India - India Today

[4] 'Xavier was aware of the brutality of the Inquisition' | Deccan Herald

[5] Section 377 in The Indian Penal Code (indiankanoon.org)

[6] Section 377 Decriminalisation Anniversary: A History of LGBT Rights and Laws in India (thequint.com)

[7] Id.

[8] (02.07.2009 – DELHC): MANU/DE/0869/2009.

[9] (1972), 405 US 438.

[10] Supra 4.

[11] Rights of the LGBT community in India (legalserviceindia.com).

[12] Ibid. The Report can be found here: Attitudes to LGBT+ Pride 2021 Global Survey (ipsos.com).

[13] Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 (indiankanoon.org)

[14] Is homosexuality legal in India - iPleaders

[15] Laws Related to LGBTQ+ Community in India (alec.co.in)

[16] National Legal Services Authority Vs. Union of India (UOI) and Ors. (15.04.2024 – SC): MANU/SC/0309/2014.

[17] Id.

[18] Indian LGBTQ couples fight for legal recognition of same-sex marriage, March 11th, 2023, By Raksha Kumar. Retrieved from: In India, LGBTQ couples fight for legal recognition of same-sex marriage : NPR

[19] Supra 11.

[20] Ibid.