Development of LGBT Rights in India
The concept of human rights is based around the fundamental principle that human beings are equal. It follows that all human beings deserve a dignified life, and they should be treated equally. Anything that violates this dignity is an infringement, as it contradicts the concept of equality and lays down the foundation for prejudice and discrimination. Lesbian, gay, bisexual and transgender (LGBT) community’s human rights have become a burning issue across the globe. In recent years, significant changes have been incorporated by various countries involving the introduction of modern legislative guarantees. In this article, we trace down the journey of the LGBT rights and laws in India.
July 2, 2009: Naz Foundation v Govt of NCT of Delhi
It is a landmark judgment delivered by a two-judge bench of the Delhi High Court. The High Court had ruled that holding two adults of the same sex, having consensual sexual intercourse with each other, as criminals is a violation of the Constitutional rights guaranteed to them by the Indian Constitution. The bench comprised of the then Chief Justice of the Delhi High Court Ajit Prakash Shah and Justice S. Muralidhar. The court traced the right to privacy and dignity back to the Right to life and liberty guaranteed by Article 21 of the Indian Constitution. The court ruled that criminalizing gay sex is an infringement of the fundamental rights of the people. The judgment can be summarised as follows:
- The court held that Section 377 violates Article 14 of the Indian Constitution. It was reasoned that the said section creates an unreasonable classification and discriminates against homosexuals as a class.
- The term ‘sex’, mentioned in Article 15 of the Constitution, includes biological sex and sexual orientation both. Therefore, the court held Section 377 to be violative of Article 15 as it discriminates people based on their sexual orientation.
- The court observed that the right to life includes the right to health as well. It noted that Section 377 acts as an obstacle in the way of HIV-prevention efforts and ultimately compromises with public health.
- The court did not strike down Section 377 in toto. It declared the part of the provision as ultra vires the Constitution which criminalises the consensual sexual acts of the adults in private.
- The decision holds the provision unchanged insofar as it relates to the non-consensual non-vaginal sex and intercourse with minors.
- The court ruled that the judgment would hold until the Parliament brings an amendment in the law.
December 11, 2013: Suresh Kumar Koushal v NAZ Foundation
The decision in NAZ Foundation v Govt of NCT of Delhi was appealed against in the Supreme Court in the present case. The petitioner had argued that on the face of it, Section 377 does not mention or classify any particular gender or group. Hence, it does not violate the Articles 14, 15 and 21 of the Indian Constitution. The court agreed with the submissions of the petitioner. On submissions of the petitioner, the court also held carnal intercourse against the order of nature as illegal. The judgment can be summarised as follows:
- The court ruled that Section 377 would apply irrespective of age and consent. Section 377 does not criminalise a single individual, gender or sexuality. It merely defines such actions that would represent an offence if they were performed. Such an embargo governs sexual activity regardless of gender identities and sexuality.
- It said that those who engage in carnal intercourse in the usual course and those who engage in carnal intercourse against the order of nature constitute separate groups. Persons in the latter group cannot argue that Section 377 suffers from a flaw in subjective and unreasonable classification.
- The court held that the High Court and Supreme Court of India are empowered to declare void any statute, whether passed before or after the enactment of the Constitution. Such power can be exercised to the degree of conflict with Part III of the Constitution.
- Presumption of constitutionality exists in respect of all legislations, including pre-Constitutional ones. As Parliament, in its capacity as the representative of the citizens, is assumed to work for the good of the people in the light of their interests and limitations of the Constitution.
- The doctrine of severability aims to ascertain that only the part of the statute which is illegal is so ruled and that the rest is preserved. Such doctrine should be implemented, keeping in mind the scheme and meaning of the law and the nature of the Legislature, which should be stopped when the two sections are entirely mixed.
- To protect a statute from being rendered unconstitutional, a court can read it down. Yet, by doing that, it cannot alter the nature of the law to produce a new rule that, in its view, is more acceptable.
- The court noted that Section 377 is a pre-constitutional law. It stated that if it had been violative of Part III of the Constitution, then the Parliament would have repealed it long ago. Therefore, the apex court held the law to be constitutionally sound.
- The court traced the doctrine of severability and practice of reading down a provision back to the presumption of constitutionality.
- The court said that the Delhi High Court was wrong in reading down the section as there is no segment of the section that can be severed without affecting the section as a whole.
- The court left the responsibility to amend or repeal the concerned law on the shoulders of the Parliament.
January 28, 2014: Dismissal of review petitions by the SC
The Central Government, NGO Naz Foundation and others had filed a review petition in the Supreme Court for reconsideration of the verdict in Suresh Kumar Koushal. The Supreme Court had dismissed the petition.
April 15, 2014: National Legal Services Authority v Union of India
Though not related to Section 377 of the Indian Penal Code, this judgment has its significance in terms of empowering the members of the LGBT community. This landmark judgment held transgender people to be a ‘third gender’. It held that transgender people are equal holders of the fundamental rights guaranteed by the Constitution of India. Moreover, the court accorded them the right to self-identification of their gender as male, female or third-gender. The judgment can be summarized as follows:
- The Central and State governments were directed by the apex court to accord legal recognition to gender identity, whether be it male, female or third-gender.
- The fundamental rights apply to the third-gender as they are applied to males and females.
- Non-recognition of the third gender in civil and criminal statutes is discriminatory to the people belonging to the transgender community.
- Directions were issued to the Central and State governments with regards to providing the transgender people with proper medical facilities.
- The Central and State governments were asked to extend various welfare schemes to the transgender people. They were asked to consider transgender people in the category of socially and economically backward classes. Thus, also to extend reservations to them in admissions to educational institutions and jobs.
- The Central and State governments were asked to take active measures to ensure a safe and respectable position for transgender people in society.
December 18, 2015: Introduction of a Bill to decriminalise Section 377
A Bill for the decriminalisation of Section 377 was introduced in the Lok Sabha by MP Shashi Tharoor. However, the Bill got rejected by the house by a vote of 71-24.
- February 2, 2016
The Supreme Court reviewed a petition by Naz Foundation. A five-judge bench looked into Section 377.
- August 24, 2017: SC upholds Right to Privacy
In Justice K.S. Puttaswamy (Retd.) v Union of India, the Supreme Court declared Right to Privacy as a fundamental right. Moreover, it observed that “sexual orientation is an essential attribute of privacy”. It stated that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by articles 14, 15 and 21 of the constitution”. Through the 2017 verdict, the apex court implicitly overrules its 2013 judgment.
- July 10, 2018: SC began hearing on Section 377
The Constitution bench led by CJI Dipak Misra, including Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, started hearing petitions against Section 377 of the Indian Penal Code.
- September 6, 2018: Navtej Singh Johar v Union of India
Describing it as “irrational, indefensible and manifestly arbitrary”, the Supreme Court scrapped Section 377 in a unanimous decision. The verdict ended a long struggle of the LGBT community against the criminalisation of homosexuality in India. In words of the apex court, this judgment would “pave the way for a better future”.
The judgment can be summarised as follows:
- Sexual preference is an essential aspect of the LGBT group members identification. It is rooted in their integrity, inseparable from their privacy and at the very core of their freedom. Section 377 is focused on normative doctrines that are anathema to a liberal order under which equality prevails over prejudices and the mainstreaming of culture.
- Minorities based on sex and class cannot exist in terror if the Constitution wills to guarantee them all the rights on equal terms. The Constitution grants them equal citizenship in their search for freedom and the fair treatment of the law. The principles of the Constitution ensure the LGBT people of the right to live a life of freedom from apprehension and achieve satisfaction in personal decisions by decriminalising such behaviour.
- The Constitution adopts an apparent premise of defending private intimacy: the State has no right to engage with such intimate affairs. Neither do heteronormative social constructs govern individual rights dependent on sexual identity.
- Article 21 states that no citizen shall be deprived of his or her life or personal freedom except in compliance with the process laid down by statute. Such a legal process must be equal, balanced and rational.
- Freedom to life and liberty affords immunity without prejudice to any person or non-citizen, regardless of their race or sexuality. According to Article 21, the right to privacy has been accepted as an integral aspect of the right to life and personal liberty. Sexual orientation is an intrinsic aspect of LGBT culture.
- Right to life and liberty confers protection without prejudice to any person or non-citizen, regardless of their race or sexuality. Under Article 21, the right to privacy has been accepted as an integral part of the right to life and personal liberty.
- Sexual orientation is an intrinsic aspect of LGBT social identification. A person’s sexual identity is an essential component of his/her privacy. Its preservation lies at the core of fundamental rights provided for in Articles 14, 15 and 21.
- The right to privacy refers to the freedom to make fundamental moral decisions, including those related to private sexual behaviour, without unreasonable State intervention. Section 377 affects the private sphere of life of LGBT people. It limits the decision-making rights of LGBT people to make decisions compatible with their sexual identity, which will promote a dignified life.
- Section 377 forbids LGBT people from revealing their sexual identity and participating in private sexual activity, a judgment that is implicit in the most intimate spaces of one’s life.
- Because Section 377 criminalises “carnal intercourse against the order of nature,” LGBT people are required to lead secret lives. As a result, LGBT individuals become significantly marginalised and vulnerable when it comes to access to healthcare services.
- The abuse of Section 377 deprived the LGBT community members the fundamental right to equality secured under Article 14. This section infringed the fundamental right to non-discrimination set down in Article 15 and the fundamental right to lead a life with dignity and privacy provided under Article 21.
- It is ruled that, in so far as Section 377 criminalises voluntary sexual activities by adults (i.e. people above the age of 18 who can consent) in private, it is in breach of Articles 14, 15, 19 and 21 of the Constitution. However, it is specified that any consent must be free consent, and is entirely voluntary and independent of any coercion or intimidation.
- The application of the aforesaid reading down of Section 377 does not contribute to the re-opening of any closed litigation. Still, it may be depended upon in all pending proceedings, whether they are at court, appeal or revision level.
- Section 377 would continue to regulate non-consensual sexual activities against adults, all forms of carnal intercourse against children, and actions of Beastiality.
- The ruling in Suresh Kumar Koushal v Naz Foundation was overruled.
December 5, 2019: Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Bill, 2019 was passed by the Lok Sabha on August 5, 2019. Rajya Sabha passed on November 26, 2019. The Bill was given assent to by the President of India on December 5, 2019.
Key features of the Act are as follows:
- Transgender is defined as a person whose gender does not match the gender assigned at birth. The term includes trans-man or trans-woman, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
- Recognition of transgender people’s identities and conferment of the right of self-perceived gender identification on them.
- It gives transgender persons a right to reside with their parents and immediate family members.
- It provides for the creation of welfare schemes and services for transgender people and initiatives for employment, social security and safety.
- The Act calls for the establishment of National Council for Transgender Persons to provide guidance, oversight and evaluative measures to secure their rights.
Conclusion
The journey of the struggles of the LGBT community has spanned over many years. Their movement and efforts have borne fruits in the form of the aforementioned landmark judgments and legislation. Many of their problems have been addressed, and many of them persist. It could be said that over the last few years, the legal scene around the LGBT community has drastically changed. All the steps taken have resulted in a more just society for the LGBT community, yet a lot more needs to be done to do justice with the community.
This Article is authored by:- Apoorv Shukla (NUJS)