LGBTQ+ Rights – A Paradox?
This article is written by Diya Dalwadi, 1st Year B.B.A LL.B Student at Unitedworld School of Law, Karnavati University. Topic covers an overview of LGBTQ+ Rights.
Section 377 of IPC, was a law introduced during the British Rule in India, criminalizing carnal intercourse against the course of nature, which meant any sexual activity other than heterosexual penile-vaginal sex. With the decriminalization of Section 377 of the Indian Penal Code in the 2018 landmark judgment by a 5-judge Supreme Court bench, the Indian society had been opened up to a lot of prospects in terms of giving legal rights to the Indian LGBTQ+ community, but the controversial Transgender Persons (Protection of Rights) Act, 2019, makes you wonder whether or not we’re moving in the correct direction.
The journey of Section 377 in Indian Courts
AIDS Bhedbhav Virodhi Andolan:
In the early 1990s, AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition with the Delhi High Court seeking to decriminalize the British colonial-era law criminalizing consensual “unnatural’ sexual activities between consenting adults. This was the first HIV/AIDS awareness activist movement, in New Delhi, 1988. The group published a report called “Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India”.
This report gave an account of the hardships faces by the LGBTQ+ citizens in the Indian society from blackmail to extortion, violence, untouchability, loneliness, rejection, etc. and sought to strike down parts of Section 377 of IPC in 1990. However, the petition was rejected by The Delhi High Court. This judgment was challenged again in 2004, and again in 2006, only for the Court to reiterate the same judgment.
Naz Foundation v. The Government of NCT of Delhi:
In this landmark judgment of 2009, the Delhi High Court decriminalized homosexuality by striking down parts of Section 377. A bench comprised of Justice Ajit Prakash Shah and Justice S. Muralidhar, held that section 377 was violative of Article 14, 15, and 21 of the Constitution on the grounds that Article 21 also includes the right to protection of one’s dignity, autonomy, and privacy, hence declaring parts of the law unconstitutional.
The court also held that the word “sex” referred not only to biological sex but also to sexual orientation. Parts of the section regarding non-consensual offences, offences against minors, and bestiality would still be in force, as the section as a whole was not struck down.
Suresh Kumar Kaushal v. Naz Foundation:
The Delhi High Court judgement in the Naz Foundation Case(LGBTQ+) was challenged in the Supreme Court of India by Petitioner Suresh Kumar Kaushal on the grounds that such decriminalizing of sections is beyond the ambit of the court by the doctrine of separation of powers; that it was against public interest in that it would promote the spread of HIV/AIDS; that it would lead to exploitation of minors and/or socially weaker sections of the society by their more powerful counterparts; and that carnal intercourse against the course of nature was against the cultural values of the Indian society.
The two-judge bench of the Supreme Court, comprising of Justice G. S. Singhvi and Justice S. J. Mukhopadhyaya held that the law “does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.” The Court also stated that the LGBTQ+ community formed a minuscule fraction of the total population, therefore reinstating section 377, recriminalizing carnal intercourse “against the course of nature”.
Navtej Singh Johar and Ors. V. The Union of India:
In September 2018, The Supreme Court of India gave judgement in case of the writ petitions filed by a group of LGBTQ+ activists led by Bharatanatyam dancer and choreographer Navtej Singh Johar. The court referred to the K. S. Puttaswamy v. The Union of India, in which a nine-judge Supreme Court Bench held that Article 21 gives the Right to Privacy the status of a fundamental right, and that “Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.” In its verdict, the constitutional bench of the Supreme Court of India comprising of CJI Dipak Misra, Justice R. F. Nariman, Justice A. M. Khanwilker, Justice D. Y. Chandrachud, and Justice Indu Malhotra, unanimously held the parts of the law concerned with the acts committed by consenting adults to be unconstitutional as they were not in concurrence with Article 14, 15, 19 and 21 of the Constitution.
It held that “the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”. The judgement also made note that the LGBT community is entitled to equal citizenship and protection under the law, without discrimination. The parts of the law relating to offences against minors, non-consensual sexual activities, and bestiality shall remain to be in force.
The 2018 judgement in the Navtej Singh Johar case marks a historical moment in LGBTQ+ history in India, compensating for the 2013 Suresh Kumar Kaushal judgement, which will remain to be a blotch in the history of the Indian judiciary. The 2018 judgement also provides room for political criticism as we witness unusual silence from some of the major Indian politicians, who might often be termed as the ‘Gratiano’s of the Indian society. Some politicians even issued statements blatantly contradicting their previous statements. However, the progressive judgement received criticism and opposition from politicians as well as the conservative masses of the Indian society.
Also Read : Free Consent : Law of contract
Transgender Persons (Protection of Rights) Act, 2019
In 2014, The Supreme Court of India gave judgement in the case of the National Legal Services Authority (NALSA) v. The Union of India. The two-judge bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri pronounced a judgement granting legal recognition to the third gender, directing the Central and State Legislatures to take the necessary courses of actions to ensure the execution of the said judgement.
In so-called correspondence with the above-mentioned judgement, the Parliament, in 2019, passed the infamous Transgender Persons (Protection of Rights) Act, which seems progressive on the face of it, but leaves a lot of room for becoming a victim of flawed implementation. The Act was protested on the grounds of being in contradiction of the 2014 NALSA judgement, which can easily be proved to be true. For one, the Judgement puts emphasis on having a psychological test for determining gender, even making forceful physical transition illegal, while the Act focuses on having a physical test for determining gender.
The Judgement accounted for socio-economic rights to be given to the third gender and directing the State for providing for public sanitation facilities for the concerned individuals, however, the Act hardly makes any room for the execution of these points. On the whole, the Act is also accused of being passed only for arbitrary use and exploitation of the concerned citizens, who might already be victims of discrimination and hate.
The journey of LGBTQ+ rights in India has been and continues to be, unpleasant and difficult, but progress is being witnessed undeniably. Recent evidence of this progress could be seen by the petitions filed in the Delhi High Court seeking legal recognition for same-sex marriage under Special Marriage Act, 1954 and Foreign Marriage Act, 1969. However, in a broader sense, the change we seek is more social than legal, and such judgements and legislations continue to be but a weak, perhaps even ineffective, way of stimulating such change. The opposition faced by these progressive judgements and legislations, and widespread and extensive existence of homophobia and transphobia, bears witness of this, and only time will test the effectiveness of these steps.