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Expansion of the rights guaranteed to LGBT community in India

The idea of human rights rests on the central premise that all humans are equal. It follows that all humans have dignity and all humans should be treated as equal. Anything that undermines that dignity is a violation, for it violates the principle of equality and paves the way for discrimination.

The human rights of lesbian, gay, bisexual and transgender people (LGBT) are coming into sharper focus around the world, with important advances in many countries in recent years, including the adoption of new legal protections. The Preamble to the Indian Constitution mandates justice- social, economic, and political equality of status for all. The right of equality before law and equal protection under the law is guaranteed in Articles 14 and 21 of the Constitution.

India is a vast and diverse country and attitudes towards this subject and experiences of LGBT individuals vary vastly. The disparity between urban and rural India, language, caste, class and gender add further complexities but what we do know is that India's LGBT citizens are not a “minuscule minority”. They have a voice that is strong and refuses to be silent any longer in their efforts to reclaim equality.

LGBT Community:

The LGBT community (or LGBTQ community or GLBT community), also referred to as the gay community, is a loosely defined grouping of lesbian, gay, bisexual, transgender, LGBT organizations, and subcultures, united by a common culture and social movements. These communities generally celebrate pride, diversity, individuality, and sexuality.

LGBT activists and sociologists see LGBT community building as a counterbalanceto heterosexism, homophobia, biphobia, transphobia, sexualism and conformist pressures that exist in the larger society.

The term pride or sometimes gay pride is used to express the LGBT community's identity and collective strength; pride parades provide both a prime example of the use and a demonstration of the general meaning of the term. The LGBT community is diverse in political affiliation.

History Of LGBT Community In India:

There are Ancient Indian texts which are relevant to modern LGBT causes. Religion has played a role in shaping Indian customs and traditions. While injunctions on homosexuality's morality are not explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, Hinduism has taken various positions, ranging from homosexual characters and themes in its texts to being neutral or antagonistic towards it. Rigveda, one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti, which some scholars believe recognises homosexual or transsexual dimensions of human life, like all forms of universal diversities.

The ancient Indian text Kamasutra written by Vātsyāyana dedicates a complete chapter on erotic homosexual behaviour. Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were not necessarily considered inferior in any way until about 18th century during British colonial rule.

The Arthashastra, an ancient Indian treatise on statecraft, mentions a wide variety of sexual practices 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 treated as a very minor offence, and several kinds of heterosexual intercourse were punished more severely.

Sex between non-virgin women incurred a small fine, while homosexual intercourse between men could be made up for merely with a bath with one's clothes on, and a penance of eating the five products of the cow and keeping a one-night fast – the penance being a replacement of the traditional concept of homosexual intercourse resulting in a loss of caste.

The Buggery Act, 1533 act defined homosexual acts, sodomy, sexual activities involving animals as unnatural offences. The Parliament of England passed this Act in 1533 under the kingship of King Henry VII. This act defined buggery as an act which is against the will of God. Under this act, unnatural offences were punishable by death.

The very first law commission of India which was under Thomas Macaulay brought this law in India and drafted it as Section 377 of Indian Penal Code of 1860. During British rule in 1860, homosexual intercourse was considered unnatural and was declared a criminal offence under Section 377.

After independence, on November 26, the right to equality was implemented under Article 14 but homosexuality remained a criminal offence. Decades later, on August, 1992, the first known protest for gay rights was conducted. In 2nd July 1999, Kolkata hosted India's first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride or Kolkata Rainbow Pride Walk (KRPW).

Battle Against Section 377 Of The Indian Penal Code, 1860:

India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh Johar v. Union of India has changed the life of many in the country. Prior to this judgment, the Lesbian Gay Bisexual Transgender Community didn't have such rights as Homosexuality was a punishable offence under Section 377 of the Indian Penal Code, 1860.

The battle against section 377 for decriminalizing homosexuality and to recognize LGBT rights in India, began over 20 years ago.

In 1991,a document detailing the experiences of gay people in India was released by the AIDS Bhedbhav Virodhi Andolan (ABVA), an organisation fighting discrimination against those affected by HIV or AIDS. The 70-page report reveals the shocking extent of blackmail, extortion, and violence that gay people faced, especially at the hands of the police.
The report calls for the repeal of legislation that discriminates against members of the LGBTQ community, including Section 377. But when released at the Press Club of India, journalists were reportedly so embarrassed they don't raise a single question.

NGO- AIDS Bhedbhav Virodhi Andolan (ABVA)

The very first challenge faced by Section 377 was in 1994. The NGO ABVA founded in 1988 in New Delhi filed a petition in the Delhi High Court for decriminalizing this section. The facts were that after observing homosexuality in the Tihar Jail the workers of the NGO wanted to distribute condoms among the male inmates. The then superintendent of Tihar Jail, Kiran Bedi disapproved this as according to her, this would have encouraged homosexuality. This petition was then dismissed in 2001.

Naz Foundation v. Government of NCT of Delhi and Ors. (2009)

In the case of Naz Foundation v. Government of NCT of Delhi and Ors. 160 (2009) Delhi Law Times 277, the Naz Foundation, a sexual health NGO working with gay men, files a Public Interest Litigation in the Delhi high court, challenging the constitutionality of Section 377 and calling for the legalisation of homosexuality.

The Naz Foundation stated that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. The Delhi high court dismisses the case, saying there is no cause of action and that purely academic issues cannot not be examined by the court. A review petition filed by the Naz Foundation is also dismissed a few months later.

After the Naz Foundation files a special leave petition for the case, the supreme court reinstates it in the Delhi high court, citing the fact that it is an issue of public interest. In the coming months, Voices Against 377, a coalition of NGOs, joins the petition, while India's ministry of home affairs files an affidavit against the decriminalisation of homosexuality.

In a landmark judgment, a Delhi High Court bench consisting of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar decides to strike down Section 377, saying it violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution.

Suresh Kumar Koushal v. Naz Foundation (2013) 1 SCC 1 (India)
However, the LGBT community suffers a significant blow in the case Suresh Kumar Koushal v. Naz Foundation (2013) when the Supreme Court of India overturns the Delhi High Court judgment and reinstated Section 377 of the Indian Penal Code. The Supreme Court of India decided to revisit this judgement after several curative petitions were filed against it, in 2017.

Navtej Singh Johar v. Union of India (2018) 1 SCC 791 (India)
The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 insofar as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled Unnatural Offences and stated that “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 a fine.”

On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Suresh Kumar Koushal v. Naz Foundation case, in which the Supreme Court had upheld the constitutionality of Section 377.

The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, Chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377, alleging it to be a direct violation of fundamental rights.

The petition was first placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders since a curative petition was already pending before the constitution bench. On 8 January 2018, the case was listed to be heard by the Chief Justice's bench, which passed an order stating that the case would be heard by a constitution bench.

The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court. On 10 July 2018, the Supreme Court commenced hearing of the pleas challenging the constitutionality of section 377. The bench ended its hearing on 17 July 2018 and reserved its verdict, asking for both sides to submit written submissions for their claims by 20 July 2018.

On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional. This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law. However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.

The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found criminalising carnal intercourse to be irrational, arbitrary and manifestly unconstitutional.

The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. 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 LGBT community is entitled to equal citizenship and protection under law, without discrimination.

Conclusion:
So now homosexuality has been decriminalized but the reaction of society and different organisations is still a challenge for the LGBT community. Though there are organisations such as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their disappointment towards the verdict given by the Supreme Court.

There also exist organisations and parties who are satisfied with the given verdict, namely, Amnesty International, RSS and UN. According to the surveys conducted by various LGBT activists in different parts of the country, life is much better and simple for the LGBT group. Every society needs time to accept any change. The time is not so far when the society will accept the LGBT community and their rights.

Reference:
  1. Ruth Vanita and Saleem Kidwai “ Same-Sex Love In India,2000. p.25
  2. Zainab Patel, “The long road to LGBT equality in India”, Available at- https://www.in.undp.org/content/india/en/home/blog/lgbtequalityindia.html
  3. Maria Thomas, “Timeline: The struggle against Section 377 began over two decades ago.
  4. Section 377 of the Indian Penal Code, 1860.
  5. Navtej Singh Johar v. Union of India, Available at- https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality/
  6. Navtej Singh Johar Case , Available at- https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
  7. Naz Foundation v. Government of NCT of Delhi and Ors., Available at- https://www.icj.org/sogicasebook/naz-foundation-v-government-of-nct-of-delhi-and-others-the-high-court-of-delhi-at-new-delhi-india-2-july-2009/

Written by: Lahana Das, Jogesh Chandra Chowdhury Law college, LLM  

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