In a cultural country like India where the society has been running on the moral values and religious values, where people have been afraid of even openly talking about sexual relations and sex education, the so called modern culture that is frank in every aspect is taking over. This old traditional society is in shudder with the arrival of a new revolution of different sexual orientations. Yes, according to the society, only straight people have lived here and there had been no other type sexual orientation. This change in the society with itself brought an obvious discrimination for the people with different sexual orientations. Not only the present society is delinquent to this issue, but also during their time, the “gay” ideology and lifestyle was rejected by all three of the greatest Greek philosophers, Socrates, Plato and Aristotle who considered it as immoral.
The concept of heterosexual orientation has existed in our society for ages but the society seemed to be uncomfortable with the concept of homosexual orientation. The concept of homosexuality with itself brought homophobia in the society which was given legal status by the Colonial Government by criminalizing the homosexual relations under section 377 of the Indian Penal Code, 1860.
DECRIMINILIZATION OF HOMOSEXUAL RELATIONS IN INDIA
The struggle against the discrimination and to protect the rights of homosexuals in India started in 1994, when AIDS Bhedbhav Virodhi Andolan (ABVA) raised voice against the constitutionality of section 377 and filed a petition in Delhi High Court for the same. It was in 2008 that the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi held that “discriminating on the grounds of homosexuality and heterosexuality creates a baseless classification and it simply takes away the right to equality guaranteed to them under article 14 and right to equality on the basis of sex guaranteed under article 15 of the Indian Constitution.
Despite such progressive rulings of Delhi High Court, section 377 of IPC was recriminalized in 2013 in Suresh Kumar Kaushal v. Naz Foundation. It was held by the hon’ble Court that “the section 377 was under the constitutional boundaries and there was no substantial ground to declare it unconstitutional”. It was finally in 2018, when hon’ble Supreme Court in Navtej Singh Johar & Ors V. Union of India decriminalized section 377 stating that it violated Article 14, 15, 19 and 21 of the constitution and was an infringement of the right to privacy of the LGBTQ community members.
RIGHTS ENJOYED BY LGBTQ COMMUNITY IN INDIA
With the decriminalization of section 377 of Indian Penal Code, under Indian laws, people belonging to the LGBTQ community enjoy the same status and privileges like that by any other citizen of India. Therefore, LGBTQ community enjoys all the fundamental rights and legal rights under the Indian laws as well as all the human rights under the Universal Declaration of Human Rights includes right to life, right to health, right to equality before law and right to privacy, as well as the right to freedom of expression and protection from discrimination and violence, including torture.
The Preamble to the Constitution of India itself advocates for Justice - social, economic, and political and equality of status for all the citizens of the country. The Constitution also guarantees every person an equal status before the law and an equal protection of laws within the territory of India. Under this article the word ‘any person’ means every individual, without any discrimination based on any of the category which includes, religion, creed, caste, sex, etc. A homosexual person in India is included within the words ‘any person’ and hence he enjoys equal status like a heterosexual person in India. Therefore a homosexual person cannot be discriminated on the ground of his/her sexuality.
The constitution of India provides for the right to live with dignity and to choose one’s sexual identity is also an essential element of this fundamental right and hence every such person enjoys right to protection from violence. Legal as well as social recognition of sexual identity of homosexuals provides the recognition of their right to dignity and non-recognition violates the same, they have full right to express and live their life without fear.
The right to life and personal liberty includes right to privacy. Any kind of sexual activity by an adult is a matter of utmost privacy and to judge the sexuality and sexual orientation of an individual infringes the privacy of that person in the most humiliating way possible. Thus, homosexuals also enjoy right to privacy for their sexual acts and orientation as is enjoyed by heterosexuals.
DISCRIMINATION FACED BY LGBTQ COMMUNITY
The LGBTQ community in India enjoys all the rights and privileges that are given to any citizen of the country. Despite being legally empowered, many LGBTQ persons fear of ill-treatment, torture, abuse and even murder, only because they live in a society that is intolerant towards their sexual orientation, gender identity or gender expression. It is not only the society but the family and the religions are also completely against those people.
Since Indian society has till now not fully accepted the co-existence of homosexuals in their surroundings, living openly as an LGBTQ person, many times mean risk of losing one’s employment, housing, education, and access to health care. This discrimination arises in various fields in employment where people tend to maintain distance from such people and in young age they are eliminated from the education opportunity because many parents don’t want their children in same school or college where they could come in contact with a homosexual person. Homosexual people often suffer from harassment by people at public places like buses and trains because of their sexuality.
Indian orthodox families think homosexuality as a western or foreign concept rather than a natural thing and are totally against it. There exists a lack of communication between parents and children and homosexual kids are afraid to tell anything about their feelings to their parents. If they somehow express that, the families in India are not any supportive with being a homosexual. These problems with communication and lack of understanding between the parents and children about sexual orientation leads to disputes and results in children being removed from or forced out of the home. Discrimination of homosexual persons at workplace make them suffer from socioeconomic inequalities in large part which directly causes on their job, stability and it result in unemployment and poverty.
In a nutshell, LGBTQ community faces problems like lack of educational facilities, threat to life and personal liberty, violation of right to livelihood, violation of right to speech and expression and most importantly right to equality and to live with dignity and other rights.
WHY SUCH DISCRIMINATION EXISTS?
The LGBTQ community has gained legal recognition but still there are a number of platforms or stages as which they still have to fight for their existence. The very first and most important place is the family of an individual who is homosexual. The first fight for the rights and the first spark of discrimination arises from the family of the individual itself. It is the family members who are unable to accept the qualities of their children which are unusual for them. This happens due to two reasons. Firstly, because of their orthodox beliefs and secondly, due to the pressure from the society.
The society is the place which judges every individual on the basis of their behavior and decides if the person is deviant or is fit to stay amongst them. It is the society which opposes any new thing being introduced to itself and such was the case with homosexuality. In India, sexual relations has always been kept behind the four walls and were never talked about in open due to which it was the basic thinking of the society forever that the homosexual relations were unnatural and immoral. In order to back up their beliefs, society takes the help of their culture and religion to decide what is natural and moral.
When it comes to religion, all the major religions of India including Hinduism, Islam and Buddhism, are against the existence of homosexuality. Though some instances of existence of homosexuality can be traced back in Hinduism but Islam has always been strictly against it and it even has the provision for the capital punishment for homosexual persons.
Therefore it is the orthodox belief of the people what makes them homophobic and leads to the discrimination of homosexuals and makes their lives miserable.
CONCLUSION AND WAY FORWARD
Although hon’ble Supreme Court has legalized same sex marriages and a number of rights are been conferred to homosexuals by the Constitution of India but still these people are that minority which still struggle to find their existence in the society. It is the job of government to protect the interests of minorities in India.
The scope of Article 23 of the Constitution of India is very wide as it includes within any form of discrimination which are forbidden. Everyone has a right to personal development, and this could be secured only when there exist a right against exploitation which creates a free environment for an individual. Therefore by following this provision of the India Constitution, government can enact special laws to prevent homosexuals from exploitation, humiliation and torture. Moreover, government should ensure healthy and supportive environment at workplace in order to avoid discrimination.
It is seen that all the elderly people act ignorant towards the homosexuals but younger ones understand their feelings. A number of the times homosexuals and their behavior are termed as deviant and called mentally ill. It is to be understood that if something like homosexuality is not widely practiced in India, it does not mean that it is unnatural or an illness. Just because the concept of homosexuality does not fit in the beliefs of people it does not mean that the people following it should be exploited and tortured. This process of changing the mindset of the society may take time but one day it would happen and the struggle for existence of homosexuals would come to an end.
By Ravi Kumar