LGBTQIA RIGHTS AND THEIR PROGRESSION IN THE INDIAN SOCIETY
Author: Saoni Ghosh, III year of B.A.,LL.B. from Jyotirmoy school of law
People in India have limited rights and will face social difficulties not experienced by non-LGBTQIA persons. The country has repealed its colonial-era laws that directly discriminated against gay sex and transgender identification, but many legal protections have not been provided for including and Anti-discrimination laws and Same-sex marriage Transgendered people in India are allowed to change their legal gender post-sex- reassignment - Surgery under legislation passed in 2019, and have a constitutional right to register themselves under a third gender. Additionally, some states protect hijabs, a traditional third gender population in south Asia, through housing programmes, and offer welfare benefits, pension schemes, free operations in government hospitals, as well as other programmes designed to assist them. There are approximately 480,000 transgender people in India.
In 2018, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down section 377 of the Indian penal code and excluding consensual homosexual sex between adults from its ambit. Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British during their rule in India.
Despite recent political movements in favour of LGBTQIA rights, there remains a significant amount of homophobia present among the Indian population, with around half of Indians objecting to same-sex relationships according to a 2019 opinion poll. Acceptance of same-sex couples was found to be highest among Hindu respondents. In the 2010s, LGBTQIA people in India increasingly gained tolerance and acceptance, especially in large cities. Nonetheless, most LGBTQIA people in India remain closeted, fearing discrimination from their families, who might see homosexuality as shameful.
The Naradasmrti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex. The Nāradasmṛti lists fourteen types of panda (men who are impotent with women); among these are the mukhebhaga (men who have oral sex with other men), the sevyaka (men who are sexually enjoyed by other men) and the irshyaka (the voyeur who watches other men engaging in sex).
The Kamasutra, a Sanskrit text on human sexual behaviour, uses the term Tritiya-Prakriti to define men with homosexual desires and describes their practices in great detail. Likewise, the Kama Sutra describes lesbians (svairini, who engage in aggressive lovemaking with other women), bisexuals (referred to as kami or paksha), transgender and intersex people. The Sushruta Samhita and the chakra Samhita delve further into the issue of homosexuality, stating that homosexuals are conceived when the father's semen is scanty and transgender people are conceived when the father and mother reverse roles during intercourse (purushayita, "woman on top")
During the Mughal Empire, a number of the pre-existing Delhi Sultanate laws were combined into the Fatawa -e- Alamgiri, mandating a common set of punishments for Zina (unlawful intercourse). These could include 50 lashes for a slave, 100 for a free infidel, or death by stoning for a Muslim.
The transition of the periods
Modern societal homophobia was introduced to India by the European Colonizers and the subsequent enactment of section 377 by the British, which stood for more than 70 years after Indian Independence. The Goa inquisition once prosecuted the capital crime of sodomy in Portuguese Indian, but not lesbian activity whereas the British Raj criminalised anal sex and oral sex (for both heterosexuals and homosexuals) under Section 377 of the Indian Penal Code, which entered into force in 1861, and made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." Scholars have also argued that the original intention of Section 377 was to act as a means by which the British Raj could further police and control the body of the colonial subject. In colonial Victorian-era morality, these subjects were seen as erotically perverse and in need of the imposition.
In 1884, a court in north India, ruling on the prosecution of a hijra, commented that a physical examination of the accused revealed she "had the marks of a habitual catamite " and commended the police's desire to "check these disgusting practices" In 1871, the British labelled the hijra population as a "criminal tribe".
Section 377 stated that: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine," with the added explanation that: "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
According to a previous ruling by the Indian Supreme Court, decisions of a high court on the constitutionality of law apply throughout India, and not just to the state over which the high court in question has jurisdiction.
There have been incidents of harassment of LGBTQIA groups by authorities under the law. On 23 February 2012, the Ministry Of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral. The Central Government reversed its stance on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. The shift in stance resulted in two judges of the Supreme Court reprimanding the Central Government for frequently changing its approach to the issue.
On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.
On 2 February 2016, the Supreme Court decided to review the criminalisation of homosexual activity. In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution. The Court also ruled that a person's sexual orientation is a privacy issue, giving hopes to LGBTQIA activists that the Court would soon strike down Section 377.
The Supreme Court also directed the Government to take all measures to properly broadcast the fact that homosexuality is not a criminal offence, to create public awareness and eliminate the stigma members of the LGBTQIA community face, and to give the police force periodic training to sensitise them about the issue.
Violence and exploitation
The judgement also included an inbuilt safeguard to ensure that it cannot be revoked again under the "Doctrine of Progressive Realisation of Rights".
Legal experts have urged the Government to pass legislation reflecting the decision, and frame laws to allow same-sex marriage, adoption by same-sex couples and inheritance rights.
Non-consensual sex (rape) and bestiality remain criminal offences. Initially, it was unknown whether the Supreme Court ruling extended to the former state of Jammu and Kashmir, which was governed by its own criminal law, the Ranbir Penal Code (RPC).
On 24 April 2015, the Rajya Sabha unanimously passed the Rights of transgender persons bill 2014, guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contained provisions to prohibit discrimination in employment as well as prevent abuse, violence and exploitation of transgender people.
The bill also provided for the establishment of welfare boards at the centre and state level as well as for transgender rights courts. The bill was introduced by DMK MP Tiruchi Siva and marked the first time the upper house had passed a private member's bill in 45 years. However, the bill contained several anomalies and a lack of clarity on how various ministries would coordinate to implement its provisions. The bill was never brought to a vote in the lower house.
A government bill, the Transgender Persons (Protection of Rights) Bill, 2019, was reintroduced to Parliament after the 2019 general election. The bill was approved on 10 July by the Cabinet of India. The bill defines transgender persons as those "whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jog to". A person would have the right to choose to be identified as male, female or "transgender". However, transgender people are required to go to a district magistrate to have their gender identity certified, and require proof of sex reassignment surgery.
The bill prohibits discrimination against transgender people in nine fields, such as education, employment and healthcare. However, transgender activists criticised that the bill is silent on a real remedy or mechanism to integrate transgender people into public spaces and improve the quality of their lives, or on how the State intends to enforce this, or about what the State will do, if and when such discrimination does occur.
The bill was also criticised for not taking into account any of the suggestions made by transgender activists; namely that it only provides for transgender persons to receive identity certificates recognising them as "transgender" and therefore, excludes other gender identities. Although it includes terms such as "trans-men", "trans-women", "persons with intersex variations" and "gender-queers" in its definition of transgender persons, these terms are not defined.
The bill aims to set up a "National Council for Transgender" that would comprise a host of government and community representatives, and is meant to advise the Union of Government on the formulation of policies concerning transgender persons, monitor and evaluate the impact of said policies, coordinate the activities of all departments dealing with these matters and redress the grievances of transgender persons. A controversial clause that would have criminalised begging by transgender people was removed from the bill. Another controversial clause that would have made transgender people subject themselves to certification by a district screening committee to be acknowledged as transgender was also struck out. Adopted in 2019,
Mistreatment and Humiliation
Transgender persons (Protection Of Rights) 2019, bans unfair discrimination against transgender people in educational establishment and services, employment, healthcare services, access to the "use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public", the right to movement, the right to "reside, purchase, rent or otherwise occupy any property", the opportunity to stand for or hold public or private office, and in government or private establishments.
LGBTQIA activists are encouraging people who have faced discrimination because of their sexual orientation or gender identity in private employment or other non-state areas to mount challenges in court, seeking to test the jurisprudence set by the two rulings. They are also campaigning for an explicit anti-discrimination law that would extend to private discrimination.
Discrimination, bullying and ragging targeted at a student on the ground of their sexual orientation or transgender status are prohibited under the UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016. There are many avenues for the LGBTQIA community in metro cities for meeting and socialising, although not very openly. These include GayBombay (Mumbai), Good as You (Bangalore), HarmlessHugs (Delhi), Orinam (Chennai), Queerala (Kochi), Queerhythm (Thiruvananthapuram), Mobbera (Hyderabad), Parichay Collective (Bhuvaneshwar), and Sahodaran (Chennai). Groups focused on LGBTQIA women include ASQ (Bangalore), Labia (Mumbai), Sappho for Equality (Kolkata). many others. Recently, a queer dating platform named "Amour Queer Dating" was launched to help LGBTQIA people find long-term partners.
Homosexuality is a part of human sexuality they have the right of dignity and free of discrimination contextual sexual acts of adults are allowed for the LGBTQIA community it is difficult to write a wrong by history but we can set the course for the future this case involves much more than discriminating homosexuality it is about people wanting to live with dignity.
Citation / Reference
1. Mahapatra, Dhananjay; Choudhary, Amit Anand (7 September 2018)
2. The Times of India. Retrieved 31 January 2017
3. Braham, Rohan (30 November 2017)
Saoni Ghosh lives in Kolkata. She is currently pursuing B.A.,LL.B. in 3rd year under University of Calcutta. Things that are include in her hobbies are she really like clicking unique photos , writing and traveling she truly prefer writing and among her hobbies and willing to continue the flow and to write more in future.