An overview at the Legal and Social position of the LGBT
“Law should be determined by the characteristics of a nation so that they should be in a relation to the climate of each country, to the quality of each soul, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen or shepherd, they should have a relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”
As stated by Montesquieu, the laws in a society should change along with the changes in the society which includes the change in the mindset of the people, changes in the trends and customs, basically which the people of that particular time consider appropriate.
But here comes an argument that a society consists of different kinds of people who have different backgrounds, different thinking, different conceptions of right and wrong .In other words one thing which an individual may consider to be right the other, might consider being wrong. Here come the rights of the individual that are guaranteed and provided by the state. These rights become a centre from which deviations of what is right and what is wrong can be measured.
This is why there exist a constitution,” the basic principles and laws of a nation that determine the powers and duties of the government constituted and guarantees certain rights to its people” so that others perception of right-wrong do not harm the interest of that individual.
The Supreme Court of India is a perfect embodiment of the concept discussed above.
The Supreme Court struck down section 377 of IPC and held the rights of LGBT community by decriminalising sexual acts by consenting adults of same sex, looking towards the rights that are guaranteed by the constitution and not by the perceived believes of some community or people of what they think is correct.
The History of section 377 can be dated back to 1533 when Buggery Act was passed by the British parliament, under the reign of King Henry VIII. This law defined ‘buggery’ as an unnatural sexual act against the will of God and nature. Thus, the law of “buggery” criminalised various activities which included anal penetration, bestiality and in a broader sense homosexuality. This became Britain’s first sodomy law. The laws related to sodomy were earlier dealt by the ecclesiastical courts which are the courts having jurisdiction in matters related to spirits or religion. From the beginning there were harsh punishments for the acts under this law included confiscation of property, death penalty, and even monks and priests could be given a death sentence even though they could not be executed for murder making the act of buggery more gruesome than that of murder.
The act was repealed by Catholic Queen Mary in 1553 that preferred such offences should be tried in ecclesiastical courts in 1553 only to be re-enacted by Queen Elizabeth 1 in 1563.
In 1828 the Person Act was passed which repealed and replaced this act. The Person Act 1828 act was wider in scope; it broadened the definition of unnatural sexual acts and allowed for easier prosecution of rapists and also homosexuals. This act laid foundation for Section 377 of the Indian Penal Code.
Finally Homosexuality was decriminalised in UK by the Sexual Offences Act, 1967. Not only this, in 2013 the Marriage(Same Sex Couples) Act 2013 further allowed the marriage of same-sex couples . Further the Gender Recognition Act 2004 gave transgender people full recognition of their gender, allowing them to acquire a new birth certificate. The Equality Act 2010 gave LGBT employees protection from discrimination, harassment and victimisation at work.
Now, if we take a look at the position of the Indian laws regarding to LGBT community where do we stand? Why did it take us 40 years after the British had already granted rights to the LGBT community to decriminalise homosexuality? It seems quite strange that even after almost 70 years of independence from the British Rule; these sections of the society are still not able to live freely because of the colonial laws which Britain itself changed years back.However, with the Supreme Court judgement in Navtej Singh Johar V. Union of India which upheld the rights of LGBT and decriminalised homosexuality, there is hope for the transgender community to lose their shackles and live freely.
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”
In 2009 the Delhi High Court in Naz Foundation v. Nct of Delhi founded section 377 as violative of fundamental rights guaranteed by the constitution and decriminalised the homosexual acts involving consenting adults .But this respite was short lived as on 11 December 2009 the Supreme court set aside the ruling of Delhi high court and re-criminalised section 377 stating that “ Section 377 does not suffer from vice of unconstutionality”.5 A petition was again filed in front of the Supreme Court, which decided that the matter should be discussed by a constitution bench. On 6 September 2018, in Navtej Singh Johar and others v. Union of India a part of section 377 was struck by the Supreme Court which stated that the sexual act between two consenting adults of same sex was unconstitutional, other portions such as sex with minors, non-consensual sexual acts and bestiality remaining the same. This unanimous verdict by the court overturned the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law.
The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Deepak Misra pronounced that the court found "Criminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional". The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. It held that "the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation". The judgement also made note that LGBT community is entitled to equal citizenship and protection under law, without discrimination.
While citing their judgements the bench quoted various philosophers and poets to read down the parts of the century and a half old law and declare it unconstitutional. It included German –writer philosopher Johann Wolfgang Goethe’s famous words “I am what I am, so take me as I am”, German philosopher Arthur Schopenhauer’s “No one can escape from their Individuality”, Canadian Poet Leonard Cohen’s “Democracy is Coming” and many more. The judgement although took various lines from the past but was directed towards a safe and glorious future of the people. The plight of the LGBT community was finally heard and there was no better way to declare the decision more beautifully that the community was waiting to hear from time immemorial.
The judgement received mix reaction from the people. As stated in the beginning of the article, what one set of individuals find right may be considered wrong by other set of people. Same was the reaction of the people. Some people like spiritual guru Sri Sri Ravi Shankar hailed the decision by saying "Letting go of obsolete laws, keeping up with a scientific temper and honouring people’s choices has strengthened our democracy." Some declare it as a first step toward self-destruction. Many religious leaders condemned this decision by stating that homosexual practices go against their religious beliefs and scriptures. But many religions and cultures accommodated same sex love and sexuality. Homosexuality is never directly criticized in Hindu Scriptures According to Rig Veda one of the sacred text of Hinduism there is a principle of “Vikruti Evam Prakriti” which means that diversity is what nature is all about. In other words what seems unnatural may also be natural. The Indian society being a religious society, many people look back to the scriptures and their religious book to judge what is correct or moral. However the correctness of these books is itself disputed as because of the sceptic translations and finally the interpretation of these texts. So, it is safe to say that dissenting decriminalisation because of religion is baseless.
Apart from criticizing homosexuality on the basis of religion some consider it a mental problem, but the ruling made it clear that sexuality is a “biological phenomenon” and is “natural”. Hence, concluding that any discrimination on this ground was violative of fundamental rights guaranteed in article 14 of the Constitution of India.
Succeeded by the Supreme Court ruling in National Legal Service Authority v. Union of India, which declared transgender as the ‘Third Gender’, on November 26, 2019 the Transgender Protection bill was passed by Parliament. The bill defines Transpersons as people whose gender does not match the one assigned at birth. The bill includes intersex people, hijras, jogtas, and kinnars within its definition of transgender people, as well as trans-men, trans-women, and gender queers. The statutory provisions of the 2019 act prohibit discrimination against transgender people. However, the day which should have been celebrated by the people of the community with full vigour was termed as a “black day” and “gender justice murder day”.
According to some activists the bill has certain loopholes that can harm the rights of the transgender people. For instance, The Bill states that transgender persons will have the right to “self-perceived” gender identity. But change of gender identity in documents cannot be done without a certification by the District Magistrate after proof of a sex reassignment surgery is provided. , it fails to incorporate yet other principles in line with the Supreme Court judgment, such as the right of transgender people to declare their self-perceived gender identity without undergoing sex reassignment surgery, and reservations in jobs and educational institutions. The act has also been criticised for imposing less punishment for crimes against transgender people compared with punishment for crimes against people of other gender.
Even after de-criminalising article 377 and passing of the transgender protection bill the LGBT community still have a long road ahead of them to live like any other citizen with basic rights and dignity. Even after almost a century there are no adequate laws which can actually protect the fundamental rights of these people. It took almost two hundred years for the government of India to pass law protecting the rights of the LGBT community but still it could not suffice the expectations of the community. It is disheartening that in a democratic country where the rights of the people are given highest priority, people of some community are still fighting for their basic rights. The LGBT people have to face discrimination in every walk of life. Homophobic violence and abuse targeting LGBT people occur on a regular basis. This discrimination does not only denies these people equal access to key social goods such as health care, employment, education and housing, but also marginalises them in the society and makes them one of the vulnerable groups who are at a constant risk of social exclusion. These people cannot even confine in their parents fearing rejections and series of negative consequences. Many LGBT youth are placed in foster care, or are sent in juvenile detention or are forced to take up to the streets, because of lack of support from family. The LGBT people have to cope with stigmatization, discrimination and harassment in every walk of life. Many also face additional stress from experiences such as very high levels of homophobic bullying in schools and physical and verbal attacks. This has a negative impact on their mental health, leading to significant levels of psychological distress, self-harm and suicidal thoughts. In addition to homophobia, lesbian, gay, bisexual and transgender people confront racism and poverty on a daily basis. Discrimination of LGBT persons in the workplace is a significant factor in the differences in socioeconomic status for LGBT persons. The LGBT people still do not possess any marriage rights and even cannot adopt a child.
This Discrimination against the LGBT people will not end itself. There needs to be taken a series of measures to provide the people of this community the normal life they have dreamed of, starting with the elimination of homophobia from the minds of the people. Indian society is regressive, where women in the society are still fighting for the equal status, social stigma and backward mindset of the people, the idea of accepting the LGBT community may seem hard to achieve. If we take a look the past, Who would have thought that women could have voting rights , but in 1950 universal suffrage granted the right to vote to the women under article 326.If a comparison is made between the position of women 70 years back to the current times , there has been a significant progression in their social position. This could have been only possible because of the laws that gave down the principle of equality and justice. The same is required for the LGBT community. Some stringent laws should be made to protect their rights. Unlike in the ‘Transgender Protection Bill’ passed by the parliament which was made without any inputs from the LGBT community, new laws should be made taking suggestions and including people of this community at every level. This will ensure that the laws are made according to the needs of these people and protect them with the problems they are actually facing. Giving them basic liberties that the citizens of other genders enjoy can really give them a sense of upliftment and reduce the social stigma surrounding them. For instance giving recognition to same-sex marriage and adoption right can really help in making their life easier. Although the Supreme Court had given a green signal to homosexuality, giving marriage rights rests with the government.
There is an urgent need for the laws that can uplift and ensure a life free of discrimination and homophobia because “What’s in a Name?” And “what really matters is the essential qualities of the substance and the fundamental characteristics of an entity and not the name by which a person is called. The emphasis on the self being of an individual is salt of his/her life. A person should be not disrespected or deprived of having rights because of his or her gender”.
University School of Law and Legal Studies,
Guru Gobind Singh Indraprastha University (GGSIPU)