Human rights are an assortment of rights which each and every human is sanctioned with. Every single human being is bequeathed with these rights no matter what caste, creed, gender, the economic status they are affiliated to. Human rights are of paramount importance for making sure that all humans are regarded impartially. They are in fact indispensable for a decent standard of living in the world. They are fundamental for the holistic evolution of a country and individuals at a characteristic level. If we take a glance at the elemental human rights, we see how there are right to life, the right to practice any religion, freedom of movement and more. Each right plays a crucial role in the prosperity of any human. Anything that subverts the eminence is a violation, for it infringes the integrity of equality and surfaces the way for discrimination.
The human rights of lesbian, gay, bisexual, transgender and intersex people (LGBT) are emerging into keen focus around the world, with monumental advancements in many countries in recent years, including the ratification of contemporary legal provisions.
India is a massive and heterogeneous country and schools of thoughts towards this subject and circumstances of LGBT individuals vary immensely. The discrepancy between urban and rural India, language, caste, class and gender add further convulsions to the comprehension of this topic in its entirety. But what we do know is that India’s LGBT residents are not a “miniature minority”. They have an opinion that is powerful and declines to be quiet any longer in their attempts to redeem equality.
HISTORY OF THE COMMUNITY
Ancient Indian scripts are pertinent to modern LGBT causes. Religion has engaged in a role of forming Indian ordinances and traditions. While ultimatum on homosexuality’s transience are not expressly referred in the religious extracts chief to Hinduism, the most widespread religion in India. Hinduism has taken diverse stance on the subject matter, extending from accommodating homosexual personalities and substance in its scripts to being unbiased or hostile towards it. Rigveda, one of the four recognized holy scriptures of Hinduism carries the expression Vikriti Evam Prakriti (Sanskrit: ȱवकृ ȱतः एवम्
Ēकृ ȱत, meaning what seems unusual is also usual), which some academicians count on that identifies homosexual/transsexual proportions of mortal life, like all figures of general varieties. The former Indian text Kamasutra penned by Vatyasana allotted a whole chapter on homosexual conduct.
The Arthashastra, a primitive Indian discourse on statesmanship, refer to an extensive assortment of sexual traditions which, whether performed with a man or a woman, were sought to be punished with the lowest grade of fine. While homosexual intercourse was not sanctioned, it was considered as an inconsiderable offence, and a variety of heterosexual intercourse were punished more grievously.
EARLY MODERN PERIOD
Homosexuality and pederasty was out of the ordinary in medieval Hindu society with AlBiruni mentioning that Hindus significantly expressed a poor opinion of it. Under the Muslim rule, this sprouted more prevalent with the Sultans of the Delhi Sultanate themselves instituting relationships with men inspite of the forbidding against it in Sharia.
The first Mughal Emperor, , in his memoirs, Baburnama, just, however, this wasn’t as extensive. The governor of Burhanpur was murdered by a servant with whom he tried to be intimate with. Ali Quli Khan was recorded to relations with males. Urdu poetry of the late medieval era used the term “chapti” made reference to coitus between people of similar genders. “Amarad Parast” appertained to those with fondness for young males.
The Dutch traveler Johan Stavorinus noted about male homosexuality among Mughals living in Bengal, “The sin of Sodom is not only universal in practice among them, but extends to a bestial communication with brutes”. Women even deserted themselves to the commission of unnatural offences.
BRITISH COLONIAL PERIOD
New age societal homophobia was instituted to India by the European colonizers and the successive establishment of Section 377 by the British, which stood for more than 70 years after India’s Independence. The British Raj criminalized sexual incidents “against the order of nature”, including homosexual sexual activities, under Section 377 of the Indian Penal Code which came into force in 1861. It was uniformly installed throughout most of the British Era due to the Christian religious convictions of the British colonial establishment. The Goa Inquisition charged the capital crime of sodomy in Portuguese India.
HISTORY OF MOVEMENT IN INDIA
In 1977, Shakuntala Devi published the first and foremost evaluation of homosexuality in India. Whilst sentences under Section 377 were unheard of, with under no circumstances any convictions for homosexual intercourse in the twenty years to 2009. Human Rights Watch have reported that the law was used to harass HIV/AIDS
prevention activists, as well as sex workers and LGBT groups. The judicial tug of war raised can be tracked down to the initial 1990s. In the post-independence era, the LGBT community has been confronted by innumerable complications in their struggle to have similar rights as heterosexual couples.
If one trails down the course of the movement, the earliest known express opposition for gay rights was held on Aug. 11, 1992, 45 years after India obtained independence from British Raj. An organization known as AIDS Bhedbhav Virodhi Andolan (ABVA) put in order the convention at the front of the Delhi police headquarters to object against the rounding up of men from Connaught Place’s Central Park on charges of homosexuality. The protest didn’t see any necessary results.
Two years later in 1994, ABVA activists instituted a public interest litigation (PIL) in Delhi High Court demanding the constitutionality of Section 377. This PIL was the first ever judicial protest and the foremost attempt to decriminalize homosexuality in India. In 1991, ABVA produced a report labeled ‘Less than Gay’, a citizen’s report on the prejudice confronted by the community in India.
Footnotes- Navtej Singh Johar V UOI ,2018 10 SCC 1
The PIL supplied India with its principal champion of gay rights, Siddhartha Gautam, the co-founder of ABVA. However, after Gautam’s premature and unforeseen demise, ABVAfailed to follow through on the petition and the case was dissolved in 2001.
In 1999, Kolkata, the capital of West Bengal, held India’s first occurrence of Gay Pride Parade. The parade, with only 15 gatherers, was called Calcutta Rainbow Pride and sent a long-overdue message to the entire country i.e., being queer and being proud. The same year, a Delhi-based association known as CALERI (Campaign for Lesbian Rights) contributed a manifesto titled ‘Lesbian Emergence’ which was in the quest to break the silence around the lives of queer women, who as claimed by CALERI, were much more inconspicuous han queer men.
In July 2001, eager about implementing Section 377, Lucknow police made an attack on a park and arrested a few men on the grounds of impending homosexuality, kindling argumentations about the issue yet again. The police also thrusted into Bharosa, an NGO dealing with health issues, snatched their documents, and arrested nine other people. They were charged with sex racketing and refused bail. By and by, after a month, the Lawyers Collective, a legal aid association, battling for LGBT rights, confirmed that the NGO did not partake in any sex racketing and bailed out the arrested organizers.
After the Lucknow incident, the NGO Naz Foundation and the Lawyers Collective filed yet another petition to the Delhi High Court in 2001 opposed to the law which then brought a long desired for, unsettled but momentary verdict on July 2, 2009, decriminalizing homosexuality.
The community, after an extensive war, was only just letting out a sigh of relief when the Supreme Court of India determining to overthrow the judgment within the short span of two years. In what came to be known as Suresh Kumar Koushal vs Naz Foundation, a bench of Justice GS Singhvi and Justice SJ Mukhopadhaya discarded the Delhi High Court verdict.
NAZ foundation ( India) Trust V Govt.NCT ,Delhi HC ,2001 ,Delhi Law Times 277
On Sept. 6 2018, a five-judge constitution bench consisting of Chief Justice Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra came on the scene with a undivided decision about Section 377 of the Indian Penal Code which criminalized consensual same-sex relations in India. They declared that Section 377 of the Indian Penal Code (IPC) infringed the constitutional right granted to equality and dignity. It was declared unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and identity, thus legalized homosexuality in India. The judgement
comprised an integral preventive to make certain that it cannot be repealed again under the “Doctrine of Progressive Realization of Rights”. The Supreme Court also gave instructions to the Government to take all assessments to thoroughly broadcast the fact that homosexuality is not a criminal offence, to create public recognition and get rid of the stigma members of the LGBT community face, and to give the police force regular training to sensitize them regarding the matter. Hence, the 493 page judgment was embraced with widespread arms by the community along with the U.N. secretary-general and numerous international rights groups.
The contemporary term ‘transgender’ came to light in the mid-1990s from the basic community of gender-dissimilar people. In modern usage, transgender has become an ‘umbrella’ term that is used to elucidate an extensive array of identifications and experiences, inclusive of but not limited to transsexual people; male and female crossdressers (sometimes known as ‘transvestites,’ ‘drag queens’ or ‘drag kings’); inter-sexed individuals; and men and women, regardless of sexual orientation, whose appearance or characteristics are recognized to be gender unconventional. India has customarily identified a third gender citizens, regarded by the society as neither male or female.
PROBLEMS FACED BY TRANSGENDERS
The main problems that are being confronted by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities: like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, and problems related to marriage and adoption.
In 1994, transgender persons got the voting right but the duty of granting them voter identity cards got caught up in the male or female question. Many of them were declined cards with sexual category of their choice.
The other fields where this community feels neglected are inheritance of property or adoption of a child. They are often pushed to the margins as a social stray and many end up soliciting money and dancing. Sometimes falling short of all options to obtain themselves, they even provide for themselves as sex workers for sustenance.
Transgenders have very restricted employment circumstances. Transgenders lack of entry to bathrooms and public spaces access is explanatory of prejudice encountered by transgenders in utilizing every facility and amenity. They come across identical issues in prisons, hospitals and schools.
A vast majority of male kids who exhibit feminine behavior are sent to so called “conversion therapy” which is a harmful practice that the various Psychological Association has condemned.
In 2014, the Supreme Court, in the landmark case of National Legal Services Authority (NALSA) v/s The Union of India identified the rights of the transgender community and the Court permitted the transgender community to recognize their gender as male or female or other and also announced that it was the duty of the Union and State government to give legal identification to the gender of ones choice and to also guarantee similar opportunities and necessary protection such as reservation for the transgender community. The Court further said that all the fundamental rights assured by the Constitution expanded to the transgender community as well.
In another landmark decision by the Madras High Court, the Court announced that the marriage of a cisgender man and a transgender woman valid but the state authorities had denounced to register this marriage stating that under Section 5 of the Hindu Marriage Act, 1955 a transgender woman cannot be considered as a bride.
The Court held that the marriage was valid and further added that a transgender woman was also incorporated in the interpretation of a bride. The Madras High Court thus sanctioned transgender marriage and permitted all consenting adults who were transgenders to officially list their marriages in the State of Tamil Nadu if they were not allowed to do so anywhere else.
In 2019, The Transgender Persons (Protection of Rights) Bill, 2019 was sanctioned by the Lok Sabha. The Bill grants the rights of the transgenders in terms of right to residence, all-encompassing of education without discrimination. No discrimination against a transgender person in matters regarding to employment either by a government or a private company is valid and the Bill also takes an aim towards providing adequate healthcare facilities to transgenders and gives directions to the government to setup clinics for the medical care or attention of HIV and establish clinics for sex reassignment surgery. The Transgender community argued that the bill in a way focused only towards
protecting them and not empowering them. They stood steadfast to their point that the bill was a way to undermine them and to make their lives more difficult. The Bill necessitates transgender persons to present themselves before a district magistrate and a district screening committee to be credited as a transgender, and State will provide a revised certificate only if the person underwent sex reassignment surgery. The bill also had a clause which declared that if a transgender person wanted to recognize themselves as male or female, then an identity card would be permitted to them only after a medical officer inspected their body. The law can be put to wrong use to pester the transgender community as there is a lot of administration required. The bill also mentions that when a transgender person is sexually violated, the perpetrators will be
given 6 months to 2 years of sentence whereas for a cis person’s violation the sentence can extend from 7 years to life sentence. The bill is contrary to its purpose of confirming welfare for the community.
RECOGNITION OF SAME SEX RELATIONSHIPS
Same-sex marriages are not legally identified in India nor are same-sex couples offered finite rights such as a civil union or a domestic partnership. In 2011, a Haryana court permitted legal acceptance to a same-sex marriage, comprising of two women. After marrying, the couple began to receive intimidating remarks from friends and relatives of their village. The couple in due course won their family’s approval. In October 2017, a group of citizens proposed a draft of a new Uniform Civil Code that would recognize same-sex marriage to the Law Commission of India. There are presently numerous same-sex marriage petitions unresolved with the court.
RECOMMENDATIONS AND SUGGESTIONS
Aversion and disdain have been central themes of section 377 since its establishment. Hence, awareness must be inculcated at an early age. Student centers may be organized that offer paid faculty educate students. They would only support the LGBT community but they would encourage positivity and equality within students. Resources and funding must also be given by the State for any kind of information needed. The center shall extensively enforce others to be respectful and mindful of one’s sexual orientation, pronouns and preferences. LGBT centers would in a way, safety zone for people to not feel judged or criticized. They would create an awareness that would entirely shuts out pessimism and welcome anyone with open arms.
There must be inclusion of LGBT topics in campaigning manifestos of the government. This will reduce shame or self pity for the lack of emphasis in individuals belonging to the community. Sex education must be promoted even though it faces fierce opposition from religious congregations. Sexual health and psychological impact of being in the LGBT community must be more overtly discussed about. Petitions pending in the courts must be reevaluated and the Transgender Bill ought to be revised. Same-sex relationships must be given equal weightage as per heterosexual relationships. 22 years and the country hasn’t seen a judge from the LGBT community; it must be kept in mind that the apparently “miniscule” LGBT population must not feel exclusive.
Salus populi est suprema lex, in the words of Marcus Tullius Cicero means the good of the people is the greatest law. Any law must take an aim at improving an individual and not punishing him. The laws in the British era were insanely punitive towards the entire LGBT community was looked trodden down and thought of as a dishonor. However, recent times have seen more influential use of the constitutional framework effectively, contrary to the criminal law, the rights of LGBT persons to freedom.
The laws formed until now are inadequate towards attaining the aims as discussed earlier and the provisions of these laws are not in compatibility with the judgement of the Supreme Court. The objective of law is to bring about an affirmative alteration in the society and these laws have not been able to bring about that positive change in the minds of people who continue to look at the community with fright, distaste and disrespect. The rights of these individuals now stand in uncertainty between empathy and contempt.
Author Details: Lavanya Rai and Aditi Mishra (ICFAI Law School)