LGBTQ+ People are Humans too!
The LGBTQ+ community started protesting for equal rights in the 1950s and started gaining global recognition after 1994. In this Article, a global overview and the situation of LGBTQ+ community people in India along with legislation for them is explained in brief.
Introduction –
“I respect culture, tradition, and religion, but they can never justify the denial of basic rights.” — UN Secretary-General (2013) Ban Ki-Moon
June is globally known as pride month. In this era, almost everyone has come across the term LGBTQ+ which stands for lesbian, gay, bisexual, transgender, queer, and more. In India, there was one proviso in Section 377 of the Indian Penal Code of 1860, “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.” In this the part talking about ‘against the order of nature with any man, woman’ was decriminalized in the year 2018. The five-judge constitutional bench of the Supreme Court held that, “consensual sexual acts between adults cannot be a crime”, deeming the prior law as irrational, arbitrary and incomprehensible.
History of LGBTQ+ Community’s Recognition Commencement –
LGBTQ+ community slowly began to be recognized in 1994 in the United States and the annual observance of LGBTQ+ History Month began then and many other countries picked it up. Every year June is celebrated as Pride month as a recognition of the LGBTQ+ community. The event that made it happen dates back to June 1969 in New York City’s Greenwich Village, at the Stonewall Inn. Popularly known as Stonewall Riots, on 28th June 1969 police raided and arrested a few people from Stonewall Inn for selling liquor with a license. The place was a famous gathering of young people of the LGBTQ+ community.
There used to be brutal abuse against the people of the LGBTQ+ community from the police and that was repeated in this arrest as well which led to active protests from 400 people and turned into a riot. It became a huge riot and sparked the initiation of the rights for the LGBTQ+ community in the United States.
In 1965, in Philadelphia, activists protested outside the Independence Hall that gays and lesbians must be granted basic rights of citizenship. The protest did not yield any fruitful results. In response to the Stonewall Riots, 2nd November 1969 witnessed a march at the Eastern Regional Conference of Homophile Organizations in Philadelphia. 28th June 1970 was celebrated as the first anniversary of the Stonewall Riots. The march was named the Christopher Street Liberation Day because the street was the epicenter of the LGBTQ+ Community in New York City. Many people joined the march and the world’s first permitted parade that advocated the rights of gay was staged in Los Angeles and San Francisco. After all this, in June 1999 President Barack Obama declared June to be celebrated as LGBTQ pride or Pride Month globally. Even current President Joe Biden expands the same.
LGBTQ+ in India –
The LGBTQ+ rights have started gaining recognition across India in recent years, although there is no explicit legislation protecting them but only a few general provisions. Even same-sex marriage is not yet made legal in India. A third gender category has been traditionally followed in India to respect transgenders. Even though there were strong political movements witnessed in favor of the rights of LGBTQ+ but there still is a significant amount of homophobia evidently showcased.
If we look at the historical mention of LGBTQ+, the third gender was recognized in the scriptures of Hinduism. Shikhandi, who was born as a female was identified as a male and even married a woman in ancient times. During the Mughal Empire, homosexuality was considered a sin and there were even punishments for people who were homosexual. During the British colonial rules, homosexuality was criminalized under Section 377 of the Indian Penal Code which was decriminalized in the year 2018.
Human Rights Watch, a non-governmental organization investigates and reports abuses that take place across the globe. The NGO expressed its concerns that people who opened up would face abuse and harassment which was actually taking place. In the case Naz Foundation v. Government of NCT and others, the Supreme Court held that “the constitutional protection of human dignity requires us to acknowledge the value and worth of all individuals as members of our society.”[1] The Naz Foundation filed a review petition and in 2014 the Supreme Court dismissed the petition by stating that “While reading down Section 377, the High Court overlooked the fact that lesbians, gays, bisexuals, and transgender people make up a small fraction of the country’s population, and that less than 200 people have been prosecuted for violating Section 377 in the past 150 years, and this cannot be used as a sound basis for declaring Section 377as ultra vires Articles 14, 15, and 21.”
In 2015, Mr. Shashi Tharoor who is a member of the Congress party introduced the bill for repealing the proviso of Section 377, but it was rejected. In 2016, the Supreme Court decided to review the criminalization of homosexuality. In 2017, the Supreme Court ruled that the right to individual privacy is a fundamental right and in 2018, homosexuality was decriminalized. “Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional” — Chief Justice Dipak Misra. “History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right to dignity and are free of discrimination. Consensual sexual acts of adults are allowed for LGBT community” — Justice Indu Malhotra. “It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about the people wanting to live with dignity.” — Justice D. Y. Chandrachud.
Supreme Court rules that any discrimination on the basis of sexual orientation is a violation of the Indian Constitution as sexual orientation is one of the many biological phenomena and is controlled by biological factors. Any discrimination on this basis is a clear violation of the fundamental right of freedom of expression.[2] Many legal professionals have urged the Government to enact proper legislation for the protection of LGBTQ+ citizens and to reflect the landmark judgment, to allow same-sex marriages, adoption by same-sex couples, and inheritance rights for them. In Navtej Singh Johar v. Union of India, the Supreme Court held that the Indian Constitution prohibits discrimination on the basis of sexual orientation and falls under the category of sex in Article 15 of Part III — The Fundamental Rights.
Landmark Judgments –
In the case of Naz Foundation v. Government of NCT of Delhi [3], a two-judge bench of the Delhi High Court held that consensual homosexual intercourse between adults cannot be treated as a crime and doing so will be a violation of fundamental rights. But this judgment was overturned by the Supreme Court of India in the case of Kumar Koushal v. Naz Foundation in which a two-judge bench restored Section 377 of the Indian Penal Code. But in the case of Navtej Singh Johar v. Union of India, homosexuality was decriminalized again in 2018.
On 6th September 2018 [4], the Supreme Court delivered its unanimous verdict and declared that the portion of the proviso in Section 377 of the Indian Penal Code that talks about consensual sexual acts between adults were held unconstitutional, i.e., homosexuality is decriminalized now. The rest of the proviso of Section 377 which talks about intercourse with minors and non-consensual intercourse remains an offense.
Conclusion –
People of the LGBTQ+ community have been fighting for equal recognition, protection, and grant of rights since the 1950s across the globe. Many countries have made same-sex marriage legal and many other countries have decriminalized homosexuality. People need to understand that biological changes in one’s body are ultra vires. The hatred towards LGBTQ+ people was enormously heavy and they have faced harassment, mistreatment, abuse and whatnot. It still happens but a little less compared to the past. One must understand that they are fellow humans too and every human must be treated equally irrespective of religion, race, caste, sex, sexual orientation, place of birth, nationality, language, etc.
“Always remember that you are absolutely unique. Just like everyone else.” — Margaret Mead
[1] Naz Foundation v. Govt. of NCT of Delhi
[2] Sec377judgment.pdf (thehindu.com)
