LGBT LAWS IN INDIA: AN OVERVIEW

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LGBT stands for “lesbian, gay, bisexual and transgender.” While these terms have increasing global resonance, in different cultures other terms may be used to describe people who form same-sex relationships and those who exhibit non-binary gender identities (such as hijra, meti,  lala, skesana, motsoalle, maithili, kuchu, kawein, travesty and Two-Spirit). In a human rights context, lesbian, gay, bisexual, and transgender people face both common and distinct challenges.

Also read: Same sex marriage legality in India

In matters of sexuality, the terms people use and identify with can vary widely from culture to culture. In this report the terms ‘lesbian’, ‘gay’, ‘bisexual’ and ‘transgender’ (LGBT) are used because they are the English terms most commonly used in the international human rights discourse. However, this is in no way intended to ignore the diversity of other terms and identities, nor to deny the cultural connotations attached to these terms. In the interests of readability and in order to respect the wealth of terms, a variety of forms are used in this report, largely interchangeably. So, for example, the term “lesbian and gay human rights” should be read as shorthand for the human rights of lesbian, gay, bisexual, and transgender people. 

Sexual orientation: this term is used to describe patterns of emotional, romantic, and sexual attraction and a sense of personal and social identity based on those attractions. Sexual orientation exists with exclusive attraction to the opposite or the same sex. When a person’s sexual and emotional attraction to people of the same gender is called homosexual orientation if attraction toward the opposite sex is called heterosexual orientation and if the attraction toward both genders is called bisexual orientation people. 

Gender identity: refers to a person’s experience of self-expression in relation to social constructions of masculinity or femininity (gender). A person may have a male or female gender identity, with the physiological characteristics of the opposite sex. Sexual identity is used in this report to refer to sexual orientation and/or gender identity.                    

Transgender: It means someone whose gender differs from the one when they were born. Transgender people may identify as male or female or neither the label fits them. These people’s internal feelings and labels may be male, female, or transgender.

 Difficulties Faced by LGBT Community: The LGBT face innumerable difficulties in a society where the only accepted orientation is heterosexuality and homosexuality is regarded as abnormal. 

Heterosexuality: They are more likely to experience intolerance, discrimination, harassment, and threat of violence due to their sexual orientation than those that identify themselves as heterosexual.

 In-equality & Violence: They face inequality and violence in every place around the world. They face torture from people who mock at them and make them realize that they are different from others.

 Deprived in Rights: In many countries, the rights enjoyed by opposite-sex couples are not enjoyed by same-sex couples. They are prohibited from those rights.

Isolation from society: They gradually develop low self-esteem and low self-confidence and become isolated from friends and family.

 Conflict in Family itself: Lack of communication between LGBT children and their parents often leads to conflict in the family. Many LGBT youths are placed in foster care or end up in juvenile detention or on the streets.

 Racial Discrimination: Additionally, lesbian, gay, bisexual, and transgender people face poverty and racism daily. They suffer from social and economic inequalities due to continuous discrimination in the workplace.

 Tape of Addictions: These people mostly get addicted to drugs, alcohol, and tobacco to get themselves relieved of stress and rejection, and discrimination.

Victims of Hate Crimes: They also become victims of hate crimes. In some countries, homosexuality is regarded as a crime. It is illegal and is often met by imprisonment and fines. 

Exclusion and discrimination have more impact on the lives of LGBT persons. This has resulted in the following-

• Dropping out of school earlier
• Leaving home and family
• Being ignored in the community
• Lacking family support
• Attempt suicide.

 Lesbian, gay, bisexual, and transgender (LGBT) rights in India have been evolving rapidly in recent years. However, Indian LGBT citizens still face certain social and legal difficulties not experienced by non-LGBT persons. The country has repealed its colonial-era laws that directly discriminated against homosexual and transgender identities and also explicitly interpreted Article 15 of the Constitution to prohibit discrimination on the basis of sexual orientation and gender identity. But many legal protections have not been provided, including same-sex marriage.

Article 15 of the Constitution of India states that:

 Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to
3. Access to shops, public restaurants, hotels and palaces of public entertainment; or
4. The use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

Landmark Judgements related to the LGBT community

Naz Foundation vs. Govt. of NCT of Delhi (2009)

• Delhi High Court struck off section 377, legalizing consensual homosexual activities between adults.

Suresh Kumar Koushal Case (2013)

• SC overturned the previous judgment by Delhi High Court (2009) that decriminalized homosexual acts and criminalized homosexuality once again.
• SC argued that in 150 years, less than 200 persons had been prosecuted under Section 377.
• Therefore, the "plight of sexual minorities" could not be used as an argument for deciding the constitutionality of the law.
• Further, SC ruled that it was for the legislature to look into the desirability of deleting section 377 of IPC.

Justice K.S. Puttaswamy vs. Union of India (2017)

• SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.
• SC declared that bodily autonomy was an integral part of the right to privacy.
• This bodily autonomy is within the ambit of the sexual orientation of an individual.

Navtej Singh Johar vs. Union Of India (2018)

• Decriminalized homosexuality.
• Dismissed the position taken by SC in the Suresh Kumar Koushal case (2013) that the LGBTQ community constitutes a minuscule minority and so there was no need to decriminalize homosexual sex.

Conclusion:

Though the judgment goes a long way in removing the stigma attached to the LGTBQ community, there is a need for a multi-pronged approach to deal with the issue of prejudice and discrimination prevalent in society against them.The LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and places the onus to change on the state and society and not the individual.Government bodies, especially those related to Health, and Law and Order need to be sensitized and made aware of the changed position of law to ensure that the LGBTQ community is not denied public services or harassed for their sexual orientation.

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