The LGBT community is made up of a diverse range of people that identify as lesbian, gay, bisexual, or transgender. The LGBT acronym, which stands for Lesbian, Gay, Bisexual, and Transgender- often includes the phrase Queer (LGBT+).
A woman who is emotionally, romantically, and sexually attracted to other women is referred to as a “lesbian.” The term “gay” describes a male who is attracted to other men sexually, romantically, and emotionally. “Bisexuals” are described as having a sexual attraction to both men and women. The term “transgender” refers to people whose sexual orientation does not match the sex to which they were biologically assigned.
The LGBT community is frequently linked to concerns about human rights, prejudice, and societal stigma. The group fights for social equality, inclusion, and acceptance, which can mean different things in different legal, religious, and cultural contexts. It is significant to remember that the LGBT community is varied and consists of members from many racial and religious backgrounds, social statuses, age groups, and cultural backgrounds. Within the community, there are numerous subgroups, and people may identify in various ways with regard to gender and sexual orientation.
The right to equality is outlined in Articles 14[1] through Article 18[2] of the Indian Constitution. The positive right to receive equal treatment and the negative right to be free from discrimination are both included in the constitutionally mandated rights. The idea of equality prohibits unwarranted discrimination between individuals.
Article 21[3] of the Constitution is closely tied to the right to choose one’s life partner. The Constitution guarantees the right to life for everyone. However, this liberty can only be limited by a law that is both just and fair in its application, both in terms of substance and procedure.
HISTORICAL PROOF OF HOMOSEXUALALITY IN INDIA
In India, it has long been stigmatised. Most personal laws see marriage as a sacrament that unites two souls between individuals of opposite sexes. Same-sex relationships are thought to be very immoral and to violate both tradition and religious beliefs. Lesbian unions are viewed as impure since they are intimate and based on religious principles. People in India often believe it to be a byproduct of western civilisation and a harmful foreign influence. It is not a western practise because our ancient scriptures and literature convey an idea that is somewhat similar. The Rigveda, one of Hinduism’s most renowned books, contains the idiom “Vikriti Evam Prakriti,” which translates to “what appears to be unnatural is also natural.”[4]
Against common belief, historians and experts in mythology assert that the decriminalization of Section 377[5] has brought India back to its cultural origins, a period when love was embraced and valued in its various manifestations. The historical evidence of homosexuality in India is substantiated by an extensive array of sources, encompassing Hindu scriptures, Islamic writings, and visual depictions found on ancient architectural marvels such as the temples of Khajuraho.[6]
Britishers banned the consensual ‘homosexual conduct’ by introducing the section 377. The existence of various gender identities and the identity of transgender people were supported in ancient India. History and religious writings suggest that pre-colonial India was far more accepting of one’s own sexuality.
HINDU SCRIPTURES:
“In every body, resides the divine who witnesses, guides, supports and enjoys all that the body experiences.”
-Bhagavad Gita, Chapter 13, verse 22
The concept of gender fluidity was acknowledged in ancient India for both humans and yakshas.[7] Queerness is present throughout Indian history, from the ancient epics and scriptures to the scholastic verse, poetry, art, and architecture.[8]
Then there are female gods with male characteristics and male characteristics in female gods. Lord Krishna refers to substance (prakriti) and the mind (purusha) as his two wombs (yoni) in the Bhagavad Gita. In some tales, Krishna is depicted as having plaited hair, dyeing his palms red, donning a nose ring, and gracefully bending his body. Krishna is referred to as the best man (Purushottam) and the whole man (purna-purusha) in this form. It seems that when the feminine was emphasised, masculinity did not wane for the ancients.[9]
According to the Ramayana by Valmiki, Lord Hanuman saw rakshasa women hugging and cuddling one another while he was returning from Lanka after seeing Goddess Sita. Many people nowadays truly think that the Ramayana is real and that it is a part of India’s rich cultural heritage.[10]
MUSLIM LITERATURE:
The Mughal Empire’s founder himself did not lack attraction to the same sex. Babur describes his fascination to a kid named Baburi in Kabul in his memoir, Baburnama.[11] Babur penned the poem and referenced him in his autobiography:
“May none be as I, humbled and wretched and love-sick;
No beloved as thou art to me, cruel and careless.”
Shah Hussain, a separate Sufi Saint, writes about his love for the young Hindu Madho Lal. Finally, Madho Lal and Shah Hussain were buried in the same tomb in Lahore. Their remains stand out for heavenly love that persisted after they were gone in many passages.
SECTION 377 AND THE DEBATE
Certain sexual behaviours that were deemed “against the order of nature” were made illegal in India under Section 377[12] of the Indian Penal Code. The Buggery Act of 1533[13] served as the inspiration for this clause, which was first implemented in 1861 while Britain still controlled India. “Whoever voluntarily has carnal intercourse with any man, woman, or animal against the order of nature shall be punished,” it says. The law was contentious and drew criticism for being out of date and incompatible with contemporary ideas of justice and equality. It clearly makes homosexuality a crime and has generated controversy and legal issues in India.[14]
In India’s legal history, the repeal of Section 377 marked a turning point in favour of recognising and upholding each person’s rights and dignity, no matter their sexual orientation or gender identity. The discussion surrounding Section 377 demonstrated how crucial it is to protect fundamental human rights and promote an inclusive and accepting society.[15]
CONSTITUTIONAL VALIDITY OF SECTION 377:
India’s Constitution ensures that its inhabitants have fundamental rights, which are a cornerstone of every democracy in the world. Being one of the democracies with the fastest rate of development, India, the enforcement of laws restricting people’s sexual preferences- choices that are entirely personal in nature and essential to one’s autonomy over one’s body and freedom of expression- was a grave violation of their fundamental rights. Penalising homosexual acts between people of the same sex is a clear violation of the rights guaranteed by the Indian Constitution’s Articles 14,[16] 15,[17] and 21.[18]
CASE LAWS RELATING TO SECTION 377:
In India, there have been various public interest lawsuits and petitions filed in an effort to decriminalise section 377. The four significant rulings listed below are significant and will aid us in understanding the background of the decriminalisation of Section 377.
1. Naz Foundation vs Government (NCT of Delhi):
In the case of Naz Foundation v. Government of NCT of Delhi,[19] a two-judge panel from the Delhi High Court rendered a significant ruling that would go down in Indian legal history. According to the judgement, engaging in consensual gay activity is not illegal, and making it so would go against the Indian Constitution’s protection of citizens’ fundamental rights. With this landmark ruling, a long-standing law that had previously prohibited consensual homosexual activity was effectively overturned.
The case was initiated after the Delhi High Court received a writ petition from the Naz Foundation, an NGO that supported HIV/AIDS patients, calling for the repeal of Section 377 because it violates human rights and is unconstitutional.
The Delhi High Court rejected the Naz Foundation’s appeal in 2003 on the grounds that they lacked locus standi, or the authority to bring legal action. The NGO then appealed the matter to the Supreme Court. The High Court was asked by the Supreme Court to reexamine the matter after the Supreme Court ruled that they were qualified to bring a Public Interest Litigation (PIL).
JUDGEMENT: According to the Delhi High Court, section 377 violated the privacy of two adults who were giving their consent to cohabitate in accordance with article 21[20] (the right to life). The court further declared that because this clause discriminates on the basis of gender, it infringes their right to equality under Article 14[21] of the Indian Constitution. Article 377 was only partially maintained by the court since it violated 14, 15, 19, and 21 articles of the Constitution.
2. SURESH KUMAR KOUSHAL & ANR. VS NAZ FOUNDATION & ORS:
It was expected that the decision in the Naz Foundation vs. Government (NCT of Delhi)[22] case would receive harsh condemnation from all parts of the country despite the Delhi High Court’s historic and libertarian ruling. This prompted a petition to overturn the Suresh Kumar Koushal vs. Naz Foundation[23] ruling because in a nation like India, where people have a hard time adapting to quick changes that seem to go against their “culture and beliefs,” this is a problem.
The Court reasoned that Section 377 only criminalises sexual acts “against the order of nature”, not conduct that occur regularly, and so does not pose the possibility of arbitrarily applying the law against particular groups. It continued by asserting that the High Court disregarded the fact that few LGBTQIA people in the nation had been charged with crimes and prosecuted under Section 377 and that “this cannot be made a sound basis” for ruling the legislation unconstitutional.
JUDGEMENT: The Court ruled that “the mere fact that the section is misused by police officers and others is not indicative of the section’s constitutionality” in determining whether the statute violates fundamental liberties guaranteed by the Constitution, such as the right to privacy, human dignity, and freedom of speech. Without doing any further investigation, the Court came to the conclusion that Section 377 “is not inherently unconstitutional.” As a result, the Delhi High Court’s decision was deemed invalid.
3. NATIONAL LEGAL SERVICES AUTHORITY VS UNION OF INDIA:
India’s history and culture have been significantly influenced by transgender people. But tragically, people in this group still encounter prejudice on a regular basis just because of who they are. Up until April 15th, 2014, when Justices K. S. Radhakrishnan and A. K. Sikri issued a ground-breaking decision in the matter of National Legal Services Authority v. Union of India,[24] often known as the NALSA judgement, the life of a transgender person in India was marked by significant hurdles. By formally recognising transgender people who don’t fit into the standard male or female classifications as belonging to a distinct ‘third gender’ category, this decision underlined India’s commitment to gender equality.
Following were the issues in the case:
- Whether a man who was born a man but leans more towards womanhood (or vice versa) has the right to be acknowledged as a woman in accordance with his or her decision, especially if they change their minds after undergoing the operation.
- Is it ethical to label transgender people as “third gender” even if they are neither men nor females?
JUDGEMENT: The court ruled that Hijras and eunuchs should be officially classified as belonging to the “third gender” category. It mandated that the government acknowledge transgender individuals’ gender identities, affirming their right to self-identify. The Court also directed both federal and state authorities to take specific measures. These included establishing specialized HIV Zero-Surveillance Centres, providing separate public facilities like restrooms, and ensuring appropriate medical care tailored for transgender individuals. Additionally, the court called for the implementation of various social welfare awareness programs to improve the health of the transgender community, raise public awareness about the challenges they face, and restore confidence in the broader public towards the transgender community.
4. NAVTEJ SINGH JOHAR VS UNION OF INDIA:
A renowned group of individuals petitioned a five-judge Supreme Court panel after the landmark NALSA[25] case decision, requesting that the court overturn the decision in the S K Koushal v. Naz Foundation case.[26] It became apparent that India needs to remove an outdated law that had continually blatantly violated the fundamental rights of its citizens. Thus, the Navtej Singh Johar v. Union of India[27] case marked a significant turning point that eventually granted LGBT people the fundamental liberties and privileges that they inalienably earned as human beings.
The petitioners contented that:
- Since Section 377 discriminated against lesbians, gays, and other members of the community based on the sex of their romantic partner, it broke Article 15[28] of the Constitution.
- Article 19[29] of the Constitution was flagrantly violated by Section 377, which forbade people from displaying their sexual orientation through speech or through the person they choose as their romantic partner.
- LGBT people’s privacy was also violated by the criminal measure, which forced them to live in continual fear of social humiliation and disgrace.
JUDGEMENT: On September 6, 2018, a panel of five judges led by Chief Justice Dipak Misra invalidated Section 377 of the Indian Penal Code. This decision received unanimous approval. The court argued that criminalizing consensual adult sexual activity would undermine their right to equality. According to Justice Dipak Misra, any adult with the capacity for independent judgment has the right to choose their life partner. This encompasses various forms of companionship, including physical, mental, sexual, and emotional aspects, as outlined in Article 21.[30]
Furthermore, the Court examined the constitutionality of Section 377 in light of the principles outlined in Articles 14, 15, 19, and 21. It referenced the NALSA decision, which ensured equal legal protections for transgender individuals, underscoring that both sexuality and gender are integral components of a person’s identity. Additionally, it cited the KS Puttaswamy case,[31] which acknowledged the inseparability of autonomy and privacy, affirming that the right to sexual orientation logically stems from the right to privacy. The Court stressed the importance of safeguarding the right to sexual orientation by broadening the scope of the right to sexual privacy. It also pointed to previous rulings, such as Shakti Vahini vs Union of India[32] and Shafin Jahan vs Asokan K.M.,[33] to underscore the significance of adults having the freedom to “choose a life partner of their preference” as part of their personal liberty.
SAME SEX MARRIAGE UNDER SPECIAL MARRIAGE ACT, 1954:
Both legal and public debate in India have focused on the topic of same-sex marriage within the parameters of the Special Marriage Act, 1954.[34] Any two people, regardless of their sexual orientation or gender identity, may marry under the Special Marriage Act of 1954. However, it does not formally recognise or support same-sex unions at the moment.
As part of efforts to support the Special Marriage Act, 1954’s legal recognition of same-sex weddings, applications have been filed with the Supreme Court of India. The goal of these efforts is to change the Act so that same-sex unions are included in its inclusion.
It is crucial to recognize that the legal landscape pertaining to same-sex marriage is continuously evolving. For the most accurate and detailed understanding of the current status and any recent developments, it is recommended to refer to reliable sources and consult legal experts.[35]
The LGBTQ community requires an anti-discrimination legislation that enables them to establish fulfilling lives and relationships, regardless of their gender identity or sexual orientation. This law should shift the responsibility for change onto the state and society, rather than placing the burden on the individual. Once LGBTQ individuals have access to their complete set of constitutional rights, it becomes unquestionable that the core entitlement to marry a person of one’s own choosing must be extended to same-sex couples seeking marriage. Over twenty countries around the world have already legalized same-sex marriage.
CONCLUSION
The 2018 Navtej Singh Johar verdict marked a significant win for the LGBT community in India after years of struggle. However, true equality for same-sex couples is still a distant goal. The existing legal framework must undergo substantial evolution to afford comprehensive protection to this community. Both the Navtej Singh Johar case and the NALSA judgment represent initial strides towards safeguarding the fundamental rights of India’s LGBT population, but there remains a lengthy journey ahead. Treating these individuals as abnormal is an injustice; no one should endure such discrimination, particularly based solely on their sexual orientation.
India is making remarkable progress in numerous fields, earning recognition for its advancements and technology. It is high time we also gain recognition for our inclusivity, a principle we learned about in school as “unity in diversity,” which stands as a hallmark of our democracy. Our history, culture, and landmarks have acknowledged same-sex relationships, so why can’t we extend the same acceptance to our fellow citizens? As the youth of this nation, it is our responsibility to work towards a more inclusive society for everyone. We must ensure that future generations do not have to battle for their basic human rights and dignity. Presently, only 34 out of 195 countries have legalized same-sex marriages. Providing financial aid to the hijra community while simultaneously marginalizing them is a disregard for our shared humanity. These actions and attitudes only intensify the struggles faced by the LGBT community. Thus, it is imperative to establish clear and enforced laws that recognize the human dignity of this community in no uncertain terms.
[1] India Const. art. 14.
[2] India Const. art. 18.
[3] Indian Const. art. 21.
[4] William N. Eskridge, Jr., A History of Same-Sex Marriage, 79(7),Virginia Law Review, 1419–1513, (1993).
[5] The Indian Penal Code, 1860, § 377.
[6] Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India: Why Love Is Not Western, Acadmike (Sept. 03, 2023, 10:44 PM), https://www.lawctopus.com/academike/history-of-homosexuality-in-india/.
[7] Merriam-Webster, https://www.merriam-webster.com/dictionary/yaksha (last visited Sept. 03, 2023).
[8] Antony Copley, A Spiritual Bloomsbury: Hinduism and Homosexuality in the Lives and Writings of Edward Carpenter, E.M. Forster, and Christopher Isherwood, (Lexington Books 2006).
[9] Harper Collins Publishers India, https://harpercollins.co.in/blog/asides/section377-hinduism-says-homosexuality-is-not-a-sin/ (last visited Sept. 03, 2023).
[10] Anindita Deb, Section 377 IPC, ipleaders (Sept. 04, 2023, 2:36 PM), https://blog.ipleaders.in/section-377-ipc/#Suresh_Kumar_Koushal_Anr_v_Naz_Foundation_Ors_2013
[11] Zahir-ud-din Muhammad Babur, Baburnama, 120(1494).
[12] Supra note 4.
[13] The Buggery Act, 1533.
[14] Geetanjali Mishra, Decriminalising Homosexuality in India, 17 no. 34, Reproductive Health Matters, 20-28 (2009).
[15] Jayna Kothari, Section 377 And Beyond, Centre for law and public research, (Sept. 07, 2023, 11:23 AM), https://clpr.org.in/wp-content/uploads/2019/06/Section-377-and-Beyond.pdf.
[16] Supra note 1.
[17] India Const. art. 15.
[18] Supra note 3.
[19] Naz Foundation v. Govt. (NCT of Delhi), (2009) SCC OnLine Del 1762.
[20] Supra note 3.
[21] Supra note 1.
[22] Supra note 19.
[23] Suresh Kumar Koushal v. Naz Foundation, civil appeal 10972 OF 2013.
[24] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[25] Supra note 19.
[26] Supra note 18.
[27] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[28] Supra note 16.
[29] Indian Const. art. 19.
[30] Supra note 3.
[31] KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
[32] Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368.
[33] Shakti Vahini v. Union of India (2018) 7 SCC 192.
[34] The Special Marriage Act, 1954.
[35] Jyoston D’Souza, Queer Marriage Under the Special Marriage Act: What is at Stake? Supreme Court Observer (Sept. 16, 2023, 2:00 AM), https://www.scobserver.in/journal/queer-marriage-under-the-special-marriage-act-whats-at-stake/.
Author: Vinamra Vichhotiya
Juris Centre 