Author: Aditya Narayan Sinha, II year of B.A., LL.B. from Symbiosis Law School, Nagpur
Introduction
LGBTQ is a group or community of Lesbian, Gay, Bisexual, and Transgenders. Homosexual was the word that was replaced by LGBTQ. Nowadays, people prefer to use LGBTQ rather than to use homosexuals. LGBTQ word was originated and discovered by Hungarian Dr. K.M. Kertbeny in the year 1869 but it didn’t get popular at that time rather it was adopted only by those people who belonged to that community by their own experience. It was in opposition to the buggery laws of Germany. It was a sinful act for the Christians of Germany. They considered it as unnatural and in-moral for them.
LGBTQ being a third gender is not acceptable in many countries and is considered a sinful act. The community is still fighting for their legal rights in society. This paper talks about how the Indian LGBTQ community has struggled for their equality as India being a pious nation disregards immoral activity. However, in recent years the LGBTQ community has received attention from the Supreme Court of India as the Indian Constitution talks about equality and impartiality among sex, caste, religion, and place.
How LGBTQ Community fight for their rights in India?
India is a diverse country with all kinds of people living here. Everybody has a different mentality of the LGBTQ Community. People living in rural India think differently than people living in urban India. Both rural and urban have different cultures, rituals and have a very complicated history to understand new terms. But LGBTQ community is not a small community in India and fighting for their rights took many years for them but they have succeeded in this. Let’s understand from the beginning.
The term LGBTQ was given by K.M. Kertbeny in 1869. K.H. Ulrichs was the first self-proclaimed and self-declared homosexual to speak out publicly for the rights of homosexuals in western society. K.H. Ulrichs was the first person to formulate the scientific theory of homosexuality. On 29th August 1867 in Munich, he called for a repeal of all anti-homosexual laws. He believed that people who were born were not different from other men and women. He argued that they should not be thought of as criminal or deviant and should be afforded fundamental human rights. But unfortunately, his call for decriminalization of homosexuality went unheard in Munich.
If we look into the holy book of Hindu mythology, the Rigveda says Vikriti Evam Prakriti which means what seems unnatural is also natural. Rigveda accepts that homosexuality is also a part of human life. The fight started in the yaer1977 when a mathematicianShankutala Devi published her primary study of homosexuality in India called “The World of Homosexuals”. It concerned decriminalization and “complete acceptance – not tolerance and sympathy”, the book, however, went unnoticed at that point. On the topic of homosexuality, there have been two seminars held in India – ‘Gender Construction and History of Alternate sexuality in South Asia’ which was held in Delhi in December 1993, which forecast on bringing to life different possible historical and mythological traditions and customs and going deep into the issues of gay people, lesbians and bisexuals and a year after, another seminar held in Mumbai on ‘Gay men’ and men who hump with men. This was the primary South Asian Gay conference popularly known, which emerged various gay identities, handled with the imputation of their actions and behaviour on their sexual health before it, in 1992, a conference was held which restricted the politics of sexuality which was held in Delhi. “In 1994, Hijras were legally granted voting rights as a 3rd sex. Then, the filing of the petition was made in Delhi court for the criminalizing beggary, to develop strategies of action AIDS Bhedbhav Virodhi Andolan (ABVA) organized a gathering in April 1995.
The movement of Indian Gays and lesbians is exclusive in its form where a visual liberation effort is formed by the activism group ABVA which wasn't even within On the opposite hand, within western countries the movement of Gays and Lesbians was held by themselves only.”[i]
Sircar wrote that ‘the nationalist resolution of the homosexual question’ in India was an interview show on CNN-IBN news channel which discussed that whether an independent India should be opened to homosexuality which was channelled during independent day week, some days later when the Delhi judicature gave the judgment within the case NAZ Foundation 2009. “The Naz Foundation name has become a history for its excellent work against section 377 of the Indian code. During this case, a matter was raised whether section 377 should be abolished? The court handled in two angles, firstly by bringing Article 21, they said that without dignity and privacy nobody can enjoy the Right to Life and secondly they discussed the concept of Right to Equality where they said that Section 377 is violative to Article 14 because it's unreasonable discrimination, it discriminates homosexuals as a category and criminalizes their consensual sex. The second important argument which was laid down was that under Article 15, discrimination on the concept of sex was prohibited. Later in 2009, by giving the judgment of this landmark case, Delhi supreme court announces that the component of homosexuality in Section 377 should be declared unconstitutional. The next judgment was Suresh Kumar Koushal v. NAZ Foundation in 2013, during which there are two arguments which were brought down, firstly that homosexuality can be a criminal offence and only the parliament has the flexibility to decriminalize it and courts do not have any right to interfere in it, the second argument was that the Right to Privacy cannot be extended that much that within which individuals commit an offence in it. So, it was further said that the Right to Privacy cannot include homosexual acts. By this judgment, India lost its significant step and was pulled backwards by many international organizations.
After this judgment, the people who were freely expressing their sexual orientation thanks to the judgment given in 2009, were considered as criminals and targeted within the eyes of the law. In 2014, the latest judgment was passed within the case NALSA v. Union of India &Ors., during this case, there are loopholes that the Indian laws concentrate on only binary genders i.e. male and female and transgender rights aren't protected by any provision and since of this, the transgender community was facing discrimination. By dealing with this loophole, the Supreme Court recognized multifaceted rights. Supreme Court further said that under Article 14 every person’s rights are protected and all genders are included even transgenders.”[ii] In Article 15 and Article 16 gender-based discrimination is prohibited so if there's discrimination on the grounds of sexual orientation then it would be violative of Article 15 & and 16. an important argument was made by the Supreme Court in Article 19, it was said that privacy, identity, and integrity are all protected under Article 19(1)(a), Section 377 was indirectly included during this text. “In Article 21 of the Constitution of India, the Right to live with dignity includes the right to make your mind up on identity.” In explaining the ruling the bench said: “While reading down Section 377, the state supreme court noted that a minuscule fraction of the country’s population constitutes LGBT people…” “because of this case self-identity and identity got legal recognition.
Where three points were stated:
• Right to self-identify their gender
• Equal treatment of all people
• Legal recognition of individuality i.e. men, women, and transgender.
The same year in 2014, the Indian Psychiatric Society released an announcement saying that homosexuality isn't a disease. The next judgment was within the case of Justice K.S. Puttaswamy v. Union of India, this the Supreme Court affirmed that the Right to Privacy is our fundamental right. to decide on this case there was a 9 judge bench which was constituted. The judgment of this case was authored by Justice Chandrachud, he said that the Supreme Court has the responsibility to rectify the error which was tied to the case of Suresh Kumar Koushal v. Union of India as sexual orientation could be a necessary attribute of privacy and will be protected at even platforms. During this case, he rejected the concept of a minuscule minority.”[iii] The final case was the Navtej Singh Johar v. Union of India which declared Section 377 partially unconstitutional. During this, a five-judge bench was constituted who was CJI Dipak Misra, Justice Indu Malhotra, Justice Rohinton Nariman, Justice AM Khanwilkar, and Justice DV Chandrachud. By taking the support of Article 14, Supreme Court said that the sexual acts should be criminalized of two consenting adults just because they're homosexual was considered as invalid intelligible differentia and an unrationed nexus and to grant away ambiguous and subjective test which is based on morality. On the contention of Article 15, Supreme Court said that the approach which was made during the case of the NAZ foundation was the appropriate approach that sex is both biological sex and orientational sex and this approach reflects our improved understanding. By supporting Article 19, Justice Chandrachud said human sexuality can't be narrowly defined, discrimination against LGBTQ is unconstitutional, it protects the identity of people and provides the proper to freely express their identity”[iv]. Finally, by taking the support of Article 21 of the Constitution of India, the Supreme Court said that the Right to life and liberty includes privacy, dignity, and autonomy. This right is also reasonably restricted and curtails our rights but by applying section 377 we cannot apply in rights and restrict their enjoyment. By this development and cases which were fought in the supreme court and Supreme Court, the LGBTQ community must express their identity freely in India.
Conclusion
A long back implemented law by the British Empire in 1861 - Section 377 was decriminalized in 2018 where it is legal to maintain sexual relations with man or woman but with an exception that it is still a crime maintaining a sexual relationship with an animal as for their rightful protection. But still, this community has not got all the rights like the right to marry or the right to adopt. These rights are still pending. The community is still being discriminated so much by the people. They are still getting discriminated against and questioned about their existence. They don’t want any special rights, they want only normal rights. All they want is to live a normal life.
Author's Biography
Aditya Sinha is a 2nd year Law student from Symbiosis Law School, Nagpur. He is a self motivated person having a keen interest in Law, Management, and Aviation. He loves writing, researching, organizing events, debating, and public speaking. He has more than 15 papers published under his name in various national and international journals. Aditya also loves doing social work and is a part of a few international NGO’s and NPO’s as well and had conducted few international project's under him. He believes that the best way to convey something is through writing.