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LGBTQ Rights in India: Past, Present and the Future

Written By: Anshuman Singh


“To love oneself is the beginning of a lifelong romance”

- Oscar Wilde

Introduction:


One of the most relevant topic in today’s socio-political world is that of rights given to people of the LGBTQ+ community. The acronym LGBTQ+ stands for Lesbian, gay, bisexual, transgender, queer, and others thus basically people who do not identify themselves as straight or do not belong to the traditional two heterosexual genders. The people belonging to the LGBTQ+ community have long been subjected to subjugation and stigmatization from every society in the world just because they are different from the perceived “normal” of the gender and society. Some civilizations or societies of the world have been quicker and have shown activism in regards to giving at least the bare minimum rights to the people belonging to the LGBTQ+ community but on the other hand, there are societies which still do not accept the people from LGBTQ+ communities. A trend can be seen between the first world countries and the third world countries or the developed and the underdeveloped or developing. This trend pertains to the level of awareness not only among the common people but also within that country’s legislative system regarding LGBTQ+ rights. In India, there has been a slow but positive development in regard to LGBTQ+ rights and the Indian judiciary and legislative have tried to gradually incorporate more and more people from the LGBTQ+ community into the Indian society. Still, the stigmatization and subjugation faced by the LGBTQ+ community are immense and to show their presence and as a sign of a protest against this subjugation and stigmatization, June is considered a pride month. This blog traces the history, present, and possible future of LGBTQ+ rights in India.


History of LGBTQ+ Rights


The presence and recognition of people belonging to the LGBTQ+ community has been present in the Indian society since ancient times and thus it can be said that homosexuality has always been a part of Indian history. Even the ancient religious and historical text in India gives an account and recognizes the presence of homosexuality and people from the LGBTQ+ community. Although homosexuality was recognized in the ancient times in India and there was a constant presence of homosexual people, the relationships that these homosexual people endured were not socially accepted i.e. although homosexuality was recognized in the ancient times, it was a punishable offence to practice the same and severe punishments were awarded to the offender. The same texts that recognize homosexuality in ancient India also mandate and give guidelines for the punishment of people who were to be found engaging in homosexuality. So, it can be said that although homosexuality was recognized in India since ancient times, it has been stigmatized since then and the situation worsened with the coming rulers of India be it the Mughals or the colonial rulers.


After the arrival of the colonial rulers in India i.e. the Britishers, the entirety of India was under a uniform rule after a long time and taking advantage of their reigning supremacy they started the process of codification of laws. These laws were the first in Indian history which were to be applied uniformly in all over the country. In fact, the Indian penal code which is still largely in its original form traces its origin during the late 19th century i.e. during the time of the colonial rulers. Many other laws and statutes like the IPC are still prevalent in India despite having their origin during the colonial era. As already mentioned above the Indian penal code is still largely in its original form and the sections and punishment are mostly unchanged, one section of the Indian penal code that concerned itself with homosexuality and engaging in homosexual behaviour was section 377. Section 377 of the Indian penal code criminalized sexual activities done against the order of nature i.e. any sexual activity besides the traditional sex was criminalized and that contained homosexuality too. Thus, it would be safe to say that for the longest time in Indian legal history homosexuality has been seen as a crime be it in the ancient Indian texts or the modern codified laws.


Changing Times


Since India got independence, the first few decades saw little to no development in terms of giving rights to the LGBTQ + community and although article 14 of the Indian constitution, which was implemented after the Independence, granted every citizen of the country equality before the law, the people of the LGBTQ+ community were still not treated equally even by the legislative statues prevalent in the country. Even the movements and protests pertaining to gay and LGBTQ+ rights were non- existent in the decades that followed Indian independence from the British and the first known protest for LGBTQ+ rights was held in 1992.


Judiciary the first and most significant step was taken by the Delhi high court in the case of Naz foundation V. Govt. of NCT of Delhi [1] in which the Delhi high court held that treating sexual relationships which are between two consenting adults as a crime and means of punishment is a violation of fundamental rights of the consenting couple which is protected by the constitution of India. The life of this judgement although not long as soon as in 2013 in the case of Suresh Kumar Koushal and Anr. V. Naz foundation and Anr.[2] The supreme court overturned the decision of the Delhi high court in the case of Naz Foundation and reinstated section 377 of the Indian penal code which criminalizes homosexuality.


In the following years, activism around LGBTQ+ rights grew all over the country and it was not only limited to the general population, the legislative in the parliament started taking the initiative to decriminalize homosexuality and same-sex relationships. Some bills were being introduced in the parliament pertaining to the decriminalization of homosexuality, the pride parades started gathering momentum not just only in metropolitan cities but also in tier 2 cities of the country. These activists portrayed that India was indeed ready for decriminalization of homosexuality as the general acceptance of people from the LGBTQ+ community was growing amongst the masses.


The most significant movement in the history of LGBTQ+ rights in India came in 2018 in the case of Navtej Singh Johar V. Union of India[3] in which the Supreme court of India unanimously held that section 377 of the Indian penal code violates the constitution of India in so far as it criminalizes consensual sexual conduct between adults of the same sex. The case of Navtej Johar was a significant step towards granting equal rights to the people of the LGBTQ+ community as it started a dialogue between them and the supreme court of India and it has in a sense created a breathing space for the people of the LGBTQ+ community.


Way Forward


Decriminalization of consensual homosexual relationships came as a major step in the fight of the LGBTQ+ community in getting the same legal recognition as any other citizen of India. Yet, many fights still need to be won before it can be said confidently that they are now on the same pedestal as any other citizen of India. The societal knowledge regarding the LGBTQ+ community in India is growing and the same with their acceptance in the Indian society too but, still, the people of the LGBTQ+ community are subjugated and discriminated against. One of the biggest reasons for this clear discrimination is because there has been a severe lack of activism from the side of the government and law-making authorities. There are still no proper laws in place which protects these basic rights of the people of the LGBTQ+ community and this is a major hindrance to their induction into Indian society. Further, marriage between two people who are of the same sex is still not recognized as a valid marriage in India which turns kind of undo the work done with the decriminalization of homosexual relationships in the case of Navtej Johar.


It is evident from above that LGBTQ+ rights in India have come a long way since independence and the great activism shown in the last few years is commendable but, at the same time there are still a lot of ways that a person of LGBTQ+ community can be discriminated against and the government will just be a mere spectator as no proper laws are in place to protect these rights of them. Thus, although there has been a lot of developments pertaining to rights to LGTBQ+ community and decriminalization of homosexual relationship has come as a boon, yet there is still a lot of work that is required and that must be done to further inculcate people of LGBTQ+ community in the Indian society and truly adhere to the principles contained in the constitution of India.


FOOTNOTES

  1. Naz foundation V. Govt. of NCT of Delhi, 160 Delhi Law Times 277 https://indiankanoon.org/doc/100472805/

  2. Suresh Kumar Koushal and Anr. V. Naz foundation and Anr. Civil 10972, 2013 https://indiankanoon.org/doc/58730926/

  3. Navtej Singh Johar V. Union of India, AIR 2018 SC 4321 https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf


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