LGBT RIGHTS IN INDIA
The rights of LGBTs has always been a debatable topic in India but, LGBT community gained utmost attention of public after the ruling of Honorable Supreme Court of India in September 2018, in which gay sex has been decriminalized which had been barred under an 1860 law imposed by the British. Before going into further details about the situation of LGBT in India, first we should be very clear with the word LGBT . So, this word ‘LGBT’ stands for Lesbian, Gay, Bisexual, and Transgender. Earlier, this LGBT were known as Gay community, but later on other types of homosexual people and their communities also became the part of this and now combinedly referred to be as LGBT. This article starts with the introduction – that Who are LGBTs? and What difficulties they are facing nowadays in India? This article will be centering on LGBT Rights in India and will focus upon the decision of Supreme Court that upheld Section 377 of Indian Constitution.
Who are LGBTs
LGBT stands for Lesbian, gay, bisexual and transgender. Initially this community was called as gay community. But later on it was found that gay community includes only men and thus this category didn’t accurately represent the idea to whom it referred. i.e it didn’t cover up all other human beings who are not normal or are homosexual. So this abbreviation, LGBT was introduced in 1990s which includes human beings who have different sexual orientation than a normal person.
The term ‘Lesbian’ refers to women who are sexually attracted towards women only. They are attracted to only female gender like the ‘Gays’ are attracted towards male gender only.
In LGBT, B stands for ‘Bisexual’ which represents those human beings who are attracted to both the sexes i.e, men and women.
‘Transgender’ is a term which includes people whose gender identity or expression does not match the sex they were assigned at birth.
Problems faced by LGBTs in India.
LGBT community faces many problems in their day to day life in our society. The main problem faced by LGBT is that people of other community don’t accept LGBT community equally because of the differences in their sexual orientation which aren’t present in normal humans. They face discrimination, inequality, harassment, unemployment, poverty, lack of healthcare and threats in society just because they belonged to homosexual category. They face a lot of difficulties in finding acceptance, they feel so isolated in society like they have done any crime. They face inequality, discrimination in almost every place around the world. People mock at them by making ridiculous comments on their identity, body structure and habits.,etc. and make them feel awkward and different. LGBT people hide their gender by not disclosing it at their workplace, just to protect their job. Because many companies don’t want to hire employees who belonged to third gender and thus this is a discrimination with the rights of LGBT. Many young LGBT face harassment, discrimination, bad comments which develops feeling of alienation in them and causes depression, drop-out of school and homelessness. Such discrimination gradually low down their self-confidence and they become isolated from their friends and family. Even many LGBT children are not accepted by their parents and family members, because of which they become homeless.
LGBT community become victim of hate crimes. Many countries treated homosexuality as crime and illegal. So there are many number of problems face by LGBT in society which resulted into dropping out of their school, loss of home and family members, depression, isolation from the society and because of which they even attempt to suicide.
Recognized Rights by Supreme Court for LGBT Community
On 6th September 2018, the Supreme Court of India unanimously struck down a part of Section 377 of the Indian Penal Code, 1860 in Navtej Singh Johar and Ors. v. Union of India (the “Navtej Johar Case”), which criminalized sexual intercourse against the order of nature to exclude all kinds of adult consensual sexual behavior. Section 377 has been criticized for discriminating against, and disproportionately affecting, the LGBT community, and for not being in tune with modern morality.
In this judgment of Supreme Court, the emphasis was on the fundamental right of homosexual persons to live with dignity, without the stigma attached to their sexual orientation, with equal enjoyment of rights under India’s constitution, and equal protection under the law.
The decision of SC on decriminalization of Section 377 was based on primary grounds under the Constitution – i.e on (i) Right to equality under Article 14; (ii) Right against discrimination under Article 15; (iii) Right to freedom of speech and expression under Article 19; and (iv) Right to privacy under Article 21.
• Right to Equality
Article 14 of the Constitution of India reads as under: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Though, this article allows that distinction can be drawn, but it also mandates that such a distinction must be based on intelligible differentia. The Supreme Court held that there was no intelligible differentia between people “who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature'”.
• Right against Discrimination
Article 15 of Indian Constitution prevents the state from discriminating against any citizen only on the grounds of sex, religion, race, caste, or place of birth. In the Navtej Johar Case, Supreme Court held that any ground of discrimination, whether direct or indirect, which is founded on a particular understanding of the role of the sex, constitutes discrimination under Article 15. Therefore, Section 377 was held to be discriminatory under Article 15.
• Right to Freedom of Speech and Expression
Article 19 of Indian Constitution deals with the Protection of certain rights regarding freedom of speech and expressions to all citizens. In the Navtej Johar Case, Supreme Court noted that Section 377 does not qualify as a reasonable restriction on an individual’s freedom of speech and expression.
• Right to Privacy
Article 21 of Indian Constitution reads as, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” This article provides for the protection of life and personal liberty as a fundamental right to all citizens of India. The Supreme Court found Section 377 to be in violation of these constitutional rights as right to privacy couldn’t avail by the LGBT community members.
After this historic judgment of Supreme Court, India puts itself into the list of those almost 150 countries where homosexual activity is legal. The decriminalization of Section 377 by providing equal fundamental rights to LGBT community as that of other citizen was the first step towards recognizing the rights of the LGBT community in India.
Every community and every human being should be treated equally whether they are homosexuals or heterosexuals because we all are god’s creation so there should be no discrimination on the basis of sexual characters. Our Indian Constitution provides fundamental rights to all the people including LGBT community. It provides Right to Equality, Right against discrimination on the basis of sex, Right to life, Right to Freedom of Speech and Expression, Right to Privacy and other religious and cultural rights. These rights are not direct rights provided to LGBT but can be interpreted as they are citizens of India. LGBT community in India and in all over the world deserves to be treated equally with dignity and respect.
Author: Shaijal Shekhar,
Intern at Lawportal,
Author: Shaijal Shekhar,
Faculty of Law, A.M.U (2nd Year)