LGBTQ and Right to Equality

WHAT IS RIGHT TO EQUALITY :

Every citizen of India is constitutionally guaranteed with a set of fundamental rights, which are pivotal to the safety, well being and growth of the citizens in the society and acts as a safeguard to their basic human rights.  As rightly mentioned by our Honourable Supreme Court that, “the Fundamental rights are there to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties, who by virtue of their majority, may come to form the government at the Centre or in the State” [1]Protecting these rights of the citizens is an essential element of any democratic system. One such essential right is the Right to Equality. One of the significant purposes of this right is to prevent any kind of discrimination on the grounds of caste, race, religion, place of birth and sex, as has been highlighted from Articles 14 to 18 of the Indian Constitution.

VIOLATION OF RIGHT TO EQUALITY FOR THE LGBTQ COMMUNITY:

 The LGBTQ community has been a marginalised and vulnerable community   since a very long time. They were deprived of gender identity in the society and their existence was unacknowledged. They have had a past with a lot of experiences of intolerance, discrimination, harassment and inequality in the society as a result of the concept of homophobia which has been deep rooted in the Indian mindsets. There have been instances where the people of this community are falsely imprisoned, tortured, harassed and even murdered  solely due to the fact that the society does not accept their sexual orientation. The discrimination starts right from birth,  when they get ostracised from their family ,  and the attached stigma prevents them from getting admissions at educational institutions, securing jobs in public as well as private sectors, getting pensions and health care insurances, availing the benefits of various housing and rationing schemes, getting rental flats or PGs to stay etc and the list goes on. All this has led to the problems of unemployment, poverty, drug addiction and other mental and physical problems among them. And what needs a special mention is the most debated one where having sexual relations among the homosexuals was considered  as a crime, which  was in itself a gross violation of Articles 14[2] ,15[3]and 21[4] of the Indian Constitution. This  criminalisation of the  sexual activity among the homosexuals under section 377 of the PICA[5] witnessed a  series of  deliberations and verdicts, which finally did decriminalise the sexual activity among homosexuals to the extent of having consensual sexual conduct between two adults in private  as well gave them a legitimate identity as third gender in the society, in the Landmark judgement of 2018  of Navtej Singh Johar & Ors.vs Union of India,  however, non consensual sexual acts among adults  as well as minors  stay criminalised[6]. This judgement was indeed progressive and voiced out against the sexual harassment , violence and exploitation against the community and a step aimed at reassuring them a dignified life while also securing them their right to privacy.

What is important to note here is that a mere judicial decision or legal recognition does not assure the protection of rights to this community. What is equally important, is for the society at large  to accept this ruling  and strive at  safeguarding their rights. In one of the empirical studies carried out  by the Hindu  through interviews of the people belonging to this community, it was known that  although the verdict did empower the community  and assured  protection  to their privacy rights on  paper, however  the social inclusion of this community and acceptance of this progressive judgement by society was still not evident, even after 2 years of passing the judgement [7], which in some way continued the atrocities  and ill treatment  inflicted on them. However in some of the interviews, it was noted that people of the community felt relatively more dignified at workplaces, among their friends and relatives, educational institutions etc with each  having different experiences in different parts of the society.

Besides, our current statutory provisions under criminal law are discriminatory on the basis of gender. For instance the sexual offences committed against women are adequately recognised and  punished whereas those committed against the members of the LGBTQ community are not even adequately recognised in the statutory book[8]. This is discriminatory on the anvil of article 14 and the state should assure that  sexual assaults against this community are punished with same impact, seriousness  and range of quantum of  punishment as such crimes against women are addressed.

Also many of the civil rights of the community have been deprived since ages and one of them being that of marriage. The personal laws in India regarding marriage including the Special Marriage Act, 1954 have been “Heterocentric” [9]and have been silent on homosexual marriages, which again is discriminating on right to equality. It is therefore proposed by many law makers to amend Special marriage Act and make it inclusive of homosexuals. This recognition would be crucial as it would assure them of other rights such as maintenance, succession and hereditary as well as pension rights as well as claim economic benefits under Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923.

CONCLUSION:

The Landmark judgements that partially decriminalised section 377 in 2018 and the NALSA judgement of 2014 were indeed significant milestones in assuring the fundamental rights of the members of the LGBTQ community and an attempt empowering them enough to be treated as equals in the society. Human Rights are granted on the Central premise that all humans are equal and undermining their dignity would go against the principle of equality and pave way for discrimination. What we look forward is to assure the LGBTQ community with social, economic and political equality. This would require some sincere efforts from the lawmakers in overturning some of the oppressive anti gay laws and make them more progressive and inclusive. The society has at times underrated the LGBTQ community by recognising them as “miniscule minority”.[10] They do have a voice which is strong enough and would now be better heard by the society. They are indeed holders of human rights which cannot be compromised due to the narrow minded beliefs of certain religion, community or society. We all need to back up the community in their fight in reclaiming their rights and eventually eradicate the discriminating criteria between the heterosexuals and homosexuals.


[1] P.Jain ,Indian Constituional  Law ,8th ed,Lexis Nexis ,2018 .

[2] Indian Constitution , Article 14 – The right to equality

[3] Indian Constitution ,Article 15 – the prohibition of discrimination on grounds of sex .

[4] Indian Constitution ,Article 21 –Right to life and personal liberty .

[5] Indian Constitution  , Indian Penal Code , Section 377 – any person who voluntarily has carnal intercourse against the order of the nature with a man  , woman or animal will be said to have committed an unnatural offence .

[6] Janees Rafiq ,Assignment Title : Being LGBT in India : Some home truths .

[7] https://www.thehindu.com/society/section-377-judgement-one-year-later/article29342570.ece

[8]  Divya Aswani , Trans gender neutrality of sexual offences : an aftermath of decriminalisation of section 377 , Delhi Judicial Academy  , p-52 , May (2019)

[9] https://www.lawctopus.com/academike/decriminalizing-of-section-377/

[10] Zainab Patel ,The long road to LGBTQ equality in India ,UNDP India ,May (2019)


Author: Meera Shah from NMIMS School of Law.


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