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LGBTQ COMMUNITY RIGHTS: THE PRESPECTIVE OF INDIAN CONSTITUTION

Author: Priyanshu Kumar, II year of B.A.,LL.B.(Hons.) from School of Law, Christ University, Delhi-NCR Campus


ABSTRACT

The LGBTQ Community has been in a discussion for many years. The main aim and prime motto of the government is to secure this community by justice, equity and unity. The word LGBTQ Stands for Lesbian. Gay, Bisexual, Transgender and Queer. Discrimination against this community has now become very common, they are excluded and isolated from the society and they are denied the fundamental rights to which they are entitled as to be a Citizen of India.


This Blog analyses the provision that are not adequate to safeguard their rights, their composition and the challenges that they face every day. The rights of this community have been recognized in the recent years due to the intervention of Judiciary to protect them. The same topic has been discussed in the paper after the declaration of verdict by Supreme court to uphold ‘Third Gender Rights’.

Keywords: LGBTQ, Homosexual, Fundamental Rights, Third Gender


INTRODUCTION

LGBTQ Stands for Lesbian. Gay, Bisexual, Transgender and Queer. Previously this community was known as Gay community but the word ‘Gay’ only refer to men.

“Sex is what you are born with, Gender is what you recognize and Sexuality is what you

discover” By Anita[1]

In the Past, people who are attracted to people of the same gender were referred to as Gay. However, the term ‘Gay’ typically refer to men who are only sexually attracted to men. Women who are sexually attracted to women are referred to as Lesbians. The Transgender community had a different status under the Mughal Era, when they were respected. However, under the British this community was made illegal, and today they live as sex workers and beggars and they are humiliated. The Universal Declaration of Human rights includes the right of every person to life, health, privacy and equality before the law, as well as the right to freedom of expression and freedom from discrimination and violence including torture[2].


DIFFICULTIES FACED BY LGBTQ IN TODAY’S SOCIETY

In a society where heterosexuality is the only acceptable orientation and homosexuality is stigmatized, the LGBTQ community faces a variety of difficulties. They live with abuse on a nearly regular basis as part of their everyday routine. Compared to those who identify as heterosexual, they are more likely to face tolerance, discrimination, harassment, and threats of violence because of their sexual orientation. They face injustice and brutality everywhere they go. The rights that spouses of different genders have in various nations are still notenjoyed by couples with the same sex. They are not allowed to exercise those rights. Therefore, they deal withdiscrimination and are denied access to social safety programs like pensions and health care. LGBTQ people even hide their gender and avoid disclosing it out of fear for their employment. Low self-esteem gradually sets in for them. Unaware that their actions are isolating the LGBTQ children, the parents of typical children prevent them from playing with them out of true concern and care. Conflict in the family is usually brought on by the parents' lack of interaction with their LGBTQ child. A large number of LGBT children wind up in foster care, juvenile jail, or on the streets.Homosexuality is seen as a crime in many nations, and is usually punished with jail sentences and fines. Additionally, it is prohibited and regarded as a sin under several personal laws.The lives of LGBT people are more impacted by exclusion and prejudice. The following are the outcomes:

  • Dropping out of school earlier

  • Leaving home and family

  • Being ignored in the community

  • Lacking family support

  • Attempt suicide


INDIAN CONSTITUTION AND LGBTQ COMMUNITY

The American Constitution's Bill of Rights gave as the basis for the concept of fundamental rights, which was incorporated into the Indian Constitution. Preamble to the Constitution of India mandates Justice - social, economic, and political, equality of status. In essence, the Constitution of India is sex blind, that's to mention, the basicpremise of equality is predicated on a Constitutional mandate that the sex of an individual is irrelevant save where the Constitution itself requires special provisions to be made for everyone.


Right to Equality

Everyone in India is guaranteed an equal status before the law and an equal protection of the law under Article 14 of the Constitution[3]. The phrase "any person" refers to any human, without regard to caste, race, religion, sex, or any other category that might be justified by discrimination.


In the case of, National Legal Service Authority V. Union of India[4], the definition of "person" was expanded, and it was decided that Article 14 of the Indian Constitution did not limit the term's use to solely refer to males or females.Hijras and transgender people who do not identify as either male or female fall under the definition of "person" and are therefore entitled to legal protection under the law in all areas of state activity, such as employment, healthcare, and education, as well as the same civil and citizenship rights as any other citizen.


Equality of Opportunity and Right against all forms of Discrimination

Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, include the bottom of ‘sex’[5]. In reality, both Articles prohibit all forms of discrimination based on gender. The fundamental prohibition against sex discrimination was emphasized by the framers of the Constitution in order to prevent the direct or indirect attitude of treating people differently because they do not adhere to stereotyped conceptions of gender binary. Biological characteristics and gender are separate elements of sex. Gender attributes include one's character, the deep psychological or emotional sense of sexual identity, and character. Biological aspects, of course, include genitalia, chromosomes, and secondary sexual characteristics. Consequently, discrimination on the ground of "sex" is covered by Articles 15 and 16 as well.


Articles 15(2) and 16(4), which state that the states shall have the power to make any special provisions for the betterment of these vulnerable minorities who are now included in the category of socially and educationally backward classes, have also been interpreted to provide social equality to these communities, such as equality in public employment[6].


Right to Life and Personal Liberty

Protection of life and personal liberty - No individual should be deprived of his life or personal liberty unless in accordance with the procedure established by law, according to Article 21 of the Indian Constitution[7]. The Indian Constitution's Article 21, which discusses the rights to life and personal liberty, has been its heart and soul. One of the most fundamental rights is the right to life, and neither the State nor any other entity has the right to infringe on or even abolish that right.


The freedom to select one's own identity was cited as one of the most important rights guaranteed by this article to life with dignity in the case of I.R. Coelho v. State of Tamil Nadu. One of the most significant provisions of Article 21 of the Indian Constitution is the right to a life of dignity for transgender people.Given that the lack of acknowledgment of their gender identification breaches their right to dignity, they must have full freedom to express themselves and live their lives without fear. Additionally, the right to reputation includes its protection.


JUDICIAL ROLE IN PROMOTION AND PROTECTION OF THE LGBTQ COMMUNITY

Through its landmark decision in the case of National Legal Services Authority v. Union of India[9] from 2013, the Hon'ble Supreme Court of India established the "third gender" status for hijras or transgender people.Prior to this verdict, students would have to write both male and female when indicating their gender, but now they will boldly identify as the "third gender."The movement against Section 377's discriminatory and oppressive nature grew rapidly with the advent of the modern era, and on July 2, 2009, the Delhi High Court delivered a landmark decision in favor of the LGBT community.[10]Section 377 of the Indian Penal Code, 1860, which criminalizes homosexuality in India, was declared unconstitutional and in violation of Articles 14, 15, and 21 in NAZ Foundation v. Government of N.C.T. Delhi[11] (hereinafter referred to as the NAZ Foundation case). The section was then read down to permit consensual sexual activity between two homosexuals over the age of 18.


CONCLUSION

Homosexuality is not a mental disease. It is equally natural as heterosexuality. There is no control over it in the human mind. In India, the condition for the LGBT people is the worst. They experience abuse, assault, and humiliation. The UN resolution is having a good effect on people all across the world. The position that India has taken on LGBT matters at the UN has so far been incredibly disappointing because by consistently opposing LGBT rights on a global scale, India has stigmatized its own image as a democratic republic. Making people aware of the existence of the LGBT community is essential. Human rights are inalienable rights, inalienable, bestowed upon people by birth. Homosexuals are not aliens

[1] Anita, “Problem Faced by Hijras in Mumbai with reference to their harassment by the Police”, available on URL, http://www.ijssh.org/papers/551-W10007.pdf,Last accessed on 4 October, 2022 [2] 3 PIEHL MATHILDA, LGBT in Development – A Handbook on LGBT perspectives in development Cooperation 4, Forum Syd, Sweden ed. 2009 [3]INDIAN CONST. art.14 [4]AIR 2014 SC 1863 [5]INDIAN CONST. art.15& art.16 [6]ibid [7]INDIAN CONST. art.21 [8]A.I.R. 2007 S.C. 861 [9]Supra, note.4 [10]Indian Penal Code, 1860, s.377 [11] 2010 Cri Li 94