LGBTQ RIGHTS AND THEIR IMPLICATIONS IN ALTERING SOCIETY’S MINDSET.

Author: Yash Johari, 2nd Year, BBA LL.B (H), Amity Law School, Amity University Rajasthan

Introduction

“It takes no compromise to give people their rights…it takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.”–Harvey Milk

10th of December 1948 marked adoption of  the Universal Declaration of Human Rights by the UN General Assembly, which states that all human beings are born free and equal in dignity and rights with no exceptions and no one to leave behind. Forwarding to 2011, there were grave concerns by the Human Rights Council at the acts of violence and discrimination based on sexual orientation and gender identity. The LGBT is an initial that stands for lesbian, gay, bisexual, and transgender. The initial has become adopted into the mainstream as an umbrella term while labelling topics about sexuality and gender identity. The history of the LGBT community is complex, because society does not perceive LGBT community as a norm. The community’s existence started getting into spotlight very recently but this is nothing but the result of sacrifices and movements which started in the early 19th century, when homosexuality was considered to be an offence. Homosexual is another renowned umbrella term coined by the sexologists in the nineteenth century, came into popular use in the twentieth century. The very first revolution that remarked the beginning of LGBTQ community movements and rallies for their rights and to get accepted in the society without any discrimination based on their sexual orientation, was the stonewall revolution on June 28, 1969, at the Stonewall Inn in the Greenwich Village neighborhood of Manhattan, New York City.

All over the world the LGBTQ community was still being subjected to discrimination, brutal violence, torture, kidnapping and even murder. In Almost 75 countries like UK, India, Egypt, Malaysia same sex relationships were criminalized in violation of basic rights. But after 1990 there has been some positive growth in the graph since almost 40 countries have legalized homosexual relationships and many more have lawfully banned discrimination against LGBTQ community. Moreover more countries are pressurizing UN for some remarkable action in favour of the community who were being deprived of their basic human rights. In 2013 the UN finally launched Free & Equal, Global campaign to raise awareness of Homophobic and Transphobic violence and discrimination and protect LGBTQ community people from being abused and violated for being who they are. It not only takes laws to make a change in the society but also there should be a change in the people’s mindset.

The beginning of Change & Developments of the LGBTQ Rights in India

In the ancient India there were many writings about homosexuality like in the Rigveda which is one of the four canonical sacred texts of Hinduism. It contains a phrase “Vikrit Evam Prakrit” meaning what is unnatural is also natural indirectly explaining homosexuality. In medieval India, the Hindus strongly disapproved of homosexuality but many sultans practiced homosexuality even after it’s prohibition in the then Sharia Law (Islamic Religious law).

Later, the British Empire also criminalized sexual activities because they too opined that homosexuality was against the order of nature thus included homosexual relationships, under section 377 of the Indian Penal Code. It was termed as an unnatural offence and stated whoever voluntarily had carnal intercourse against the order of nature with any man, woman or animal, shall be punished with either imprisonment for life or with imprisonment of up to 10 years along with fine.

This section was introduced in the Indian Penal Code in the year 1861 which is basically a 150 years old codified law. In India, the popular opinion among the public was that Homophobia is nothing but a western imported product, the evidence of which can be traced through the introduction of section 377 in the Indian Penal Code by the British Rule and this notion is accepted not only in India but in several other British colonies such as Malaysia, Singapore, Pakistan, Bangladesh, Myanmar, Maldives and Jamaica. The section 377 of the Indian Penal code was a model followed by Australia, Fiji, Hong Kong and New Zealand and a model for similar laws that remain in Bhutan, Brunei, Kiribati, Marshall Islands, Sudan, Solomon Islands, Sri Lanka, Ghana, The Gambia, Botswana, Kenya, Nigeria, Tanzania, Uganda and Zambia.

However, the year 1994 marked the beginning of change when the very first petition challenging section 377 was filed by AIDS Bhedbhav Virodhi Andolan which was in relation to providing access to condoms at Tihar Jail as there were claims that two-third of the inmates were having homosexual behavior and were not provided with condoms because they were blocked by the IG(Kiran Bedi). The petition was eventually dismissed.

In 1999, Kolkata hosted the maiden pride march that was organized in South Asia. In 2001 NAZ foundation filed public interest litigation to challenge section 377 in Delhi High Court. In 2009 the Delhi High Court decision in NAZ Foundation vs. Govt. of NCT Delhi[1] found section 377 against private, adult, consensual and non-commercial same-sex conduct to be in direct violation of the fundamental rights provided by the Indian constitution. Effectively that meant that section 377 was “decriminalized”, but not legalized. This case was dealt with considering two points; one was article 21 which stated that one cannot enjoy the right to life without dignity and pride. The second point stated that section 377 was violative of article 14 of the Indian constitution as there was unreasonable discrimination based on one’s sexual orientation also because it discriminates homosexuals as a class and in article 15 it is stated that sex based discrimination also amounts unequal treatment which is strictly prohibited in this particular provision of the Indian Constitution. This was a remarkable development for the LGBTQ community but didn’t last too long.

On 11th December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalizing consensual homosexual activity and this judgment was pronounced by the Court in the case of Suresh Kumar Kaushal vs. NAZ Foundation[2]. After this judgment many international organizations commented that this was a step backwards for India. The bench, however, opined that this issue should be taken up by the Parliament and should debate and decide on the matter. In January 2014 Supreme Court dismissed the review petition filed by NGO NAZ Foundation and several others against its previous verdict on section 377 of IPC in the NLSA vs. The Union of India and ORS[3]. In explaining the ruling the bench said: “while reading down section 377 the high court noted that a minuscule fraction of the country’s population constitutes LGBT people”. In February 2014, the Indian psychiatric society released a statement that homosexuality is not a disease and that it did not recognize it as one.

In April 2014 in the case of National Legal Services Authority vs. Union of India[4], the Apex  Court of India ruled that transgender people should be treated as a third category of gender. In 2015, a bill for decriminalizing of section 377 was introduced in parliament, but rejected by majority vote. For a fact, at this point, the United Kingdom had already passed legislation to allow same-sex marriage. This meant that the nation which gave us section 377 has now made same-sex marriage legal and homosexuality has been decriminalized in the UK since 1967.

In February 2016 the Supreme Court decided to review criminalizing of homosexual activity. On August 24, 2017, India’s Supreme Court finally pronounced its judgment in favor of the LGBT community and gave them the access to their freedom to safely express their sexual orientation and the judgment of Justice K.S. Puttaswamy vs. Union of India[5] stated that Discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual and also stated that an individual’s sexual orientation is protected under the privacy law. However, the Supreme Court did not directly overturn any laws criminalizing same-sex relationships. After this judgment, LGBTQ community was allowed to express their sexual orientation, but homosexual acts remain criminalized by the IPC.

After all these landmark judgments the following issues continue to be a barrier in the LGBTQ community’s lives

  • Same-sex marriage: not allowed.
  • Recognition of same-sex couple: not recognized.
  • Step-child adoption by a same-sex couple: not allowed.
  • Joint adoption by a same-sex couple: not allowed.
  • Adoption by transgender people: only in Kerala and Tamil Nadu.
  • Gays and lesbians allowed to serve openly in the military: not allowed.
  • Right to change legal gender: only in Kerala and Tamil Nadu.
  • Homosexuality declassified as an illness since 2014
  • Access for IVF for lesbian or gays: not allowed.

All the grievances turned into smiles when the judgment of Navjot Singh Johar vs. Union of India[6] came out on 2018 September 6th. This case overturned the previous ruling of Suresh Kumar Kaushal vs. NAZ Foundation[7] by the Supreme Court of India. The issue before the Apex Court was to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which, among other things, criminalized homosexual acts as an “unnatural offence”. The provision penalized any kind of sexual relationships among same sex, which largely affected homosexual relationships. On 6 September 2018, the court unanimously declared the law to be unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. The verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.

Society’s acceptance of the verdict

The society is built upon the rules of the elderly and with a thought process of different people of different religions. Till date the verdict of Navjot Singh Johar vs. Union of India[8] is not wholeheartedly accepted by many fragments of the population because this is in a way violates their religious rules or principles. The orthodox elderly see it as an unethical form of relationship which is against nature’s rule and also against their religion.

When one speaks about sexuality, it is said to be something that god or nature has put in because there is something god has to provide for the continuance of the human race. So there is no denying it or putting it under the carpet but somebody has a certain kind of preference which has got nothing to do with the reproductive process. It is their personal preference because every human has freedom to live their lives on their own terms and as per Supreme Court’s decision it is nobody’s business what a person does in their own private space. Coming to the religious perspective of the verdict on the society, it has nothing to do with religion and we don’t have to discriminate or anything but it is their own business what they do and not do until and unless the people publicly promote it.

Reaction of the Society having an orthodox mentality

 Often the society stereotypes the couples of same sex and even go on to the point of considering them as some kind of offenders committing some grave offence. The people are at time so insensitive that they just straightaway go to the couple and ask them pointblank about it and suggest them that this is just a phase and that this is some kind of disease and can be cured so they should get treatment for the same.  On the other side the youth of the country has aided in helping this verdict to be more socially acceptable by helping their friends or acquaintances to come out of the closet and tell their parents or guardians about their sexuality because there is absolutely nothing wrong in letting it out as this is the individual’s decision and they have the right to choose their sexuality. This issue has always been one to slip under the carpet and not to be discussed because some parents don’t accept the sexuality of their children as a different one from what is common and prevailing in the world or the country. Some people look at it as a disease because it is a sick seed that has been planted by the society’s stereotyping patterns. There will be a real amendment when these people will be ready to take in and accept that this is the human race evolving on the sexuality basis.

Conclusion                                                                                                                                             

 We as citizens of this society should help and build the society, which can accept changes like these and be comfortable in accepting these dynamic amendments in a way which will help the growth and development of the society as a whole. No one should feel left out or like they are different from the common, it is no crime to feel for the same sex and we should do everything possible for them to feel like they are the part of the society.


[1] 160 Delhi Law Times 277 (Delhi High court 2009)

[2] Civil appeal no. 10972 of 2013

[3] Writ petition (civil) no. 400 of 2012 and no. 604 of 2013

[4] Writ petition (civil) no. 400 of 2012 and no. 604 of 2013

[5]  Writ petition (civil) no. 494 of 2012

[6]  Writ petition(criminal) no. 76 of 2016 D. No. 14961/2016

[7] Civil appeal no. 10972 of 2013

[8] Writ petition(criminal) no. 76 of 2016 D. No. 14961/2016


Editorial Credits: Ms. Pratiksha Priyadarshini
Disclaimer: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

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