Rajat Gupta is a Law Graduate from Banaras Hindu University
Scope: - Numerous questions like what does ‘LGBT’ mean, what is their historical background, what are their rights and how do they affect the society pop-up while reading about it in the news. This paper intends to answer these questions with special references to various judgments passed in due course. It intends to make a comparative study of issues and rights of LGBT present before and after decriminalization of section 377 of the Indian Penal Code, 1860(IPC). A microscopic view into their lives might help in the enactment of statutes governing this particular section of the Indian Diaspora.
LGBT community was made invisible under the cloak of section 377 of the IPC and homosexuality was treated as an illness for more than one and a half-century. They were disowned by their families, sexually abused by coworkers, blackmailed and harassed by law enforcement officials, discriminated against at workplaces and treated in asylums as psychiatric patients. But, in the last two decades, this community collectively emerged as a voice against all social, physical, mental and economic atrocities faced by them. The two-decades-long battle ended after the landmark judgment of the Honorable Supreme Court that scraped the draconian law of criminalizing homosexuality. It marked the beginning of a new era in the history of independent India where the choice of sexuality of every kind was accepted as well as protected. The judgment paved a way for the evolution of law according to the fundamental principles of life, equality and social justice. Although, the laws enacted are not capable enough to enforce the rights or to ensure the security of people belonging to the community.
KEYWORDS: LGBT Rights, Gay Rights, Human Rights, Supreme Court of India
Since the establishment of the first civilization in India, there had been a generous amount of debates regarding the rights of different communities and individuals which continue to the present day. But imagine, if a community is deprived of its rights or even worse if the whole community is declared non-existent for centuries. What if the act defining the identity of a person is ruled out to be a criminal offense or a disease? What if a social injustice is born from the same law which promised to treat every person with equality? 'LGBTQ' is one such community devoid of rights, identity and social acceptance.
DEFINITION OF LGBT
Human beings can be distinguished based on various factors like gender, race, ethnicity, culture, nationality, and whatnot. But sex and sexuality of a human are the most natural distinguishing factors. Sex defines the physical characteristics while sexuality depicts the emotional aspects of the body. Gender is often confused with sex; gender is how a person identifies and expresses himself disregarding his biological sex. Section 2(k) in The Transgender Persons (Protection of Rights) Act, 2019 defines ‘transgender person’ which means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.  While, LGB persons (lesbian, gay, bisexual) are classified based on sexuality (romantic or emotional attraction to other humans). They are either attracted to people of the same sex or both. Irrespective of their gender, physical characteristics, expression or conduct LGBTs are united by a common cause that is rights against discrimination based on their sexuality and transitions.
HISTORY AND BACKGROUND
The polity and demography of India have never been static since the first ancient civilizations emerged on the land. It has been invaded and colonized by countless Kingdoms and Empires. Thus, the birth of homosexuality can't be traced to an exact time. Amara Das Wilhelm's book "Tritiya-Prakriti: People of the Third Sex", compiles years of extensive research of Sanskrit texts from medieval and ancient India, and proves that homosexuals and the "third gender" were not only in existence in Indian society back then, but that these identities were also widely accepted. Carvings on the walls of Khajuraho temples are an exquisite example of the presence and acceptance of homosexuality in medieval India.  However, its interdiction through legal provisions was a product of orthodox practices of the British colonial era, creating abhorrence against the phenomenon in the society by projecting it like a communicable disease.
Section 377, IPC defines Unnatural offences—whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 
This section criminalizes every sexual non-procreative act of human beings irrespective of their sexuality based on biblical myths of the orthodox Victorian regime in democratic India.
ISSUES OF LGBT COMMUNITY IN INDIA
For centuries, command of king/ruler had been the law of the land, directly influencing the perspective of the public, unreasoned. Section 377 of IPC was enacted to introduce homosexuality as an unnatural and criminal offence resulting in a taboo in Indian society. This social stigma gave birth to various social, economic, and political issues discussed below-
The law not only negated the existence of such sexual relationships but also penalized the individuals involved in it which in turn acted as leverage against homosexuals.
These people were compelled to hide their sexual and emotional desires making their life miserable and enclosed in the boundaries created by the myopic society.
The members of the LGBT community were disgraced by their family members after revealing their psychological identities. Homosexual males were ex-communicated from their families and the females were forced into a non-consensual heterosexual relationship. In remote parts of the country, homosexuality was a key reason for honour killings. 
Homosexuals were restricted from pursuing their careers in different fields or were exploited by their co-workers at their workplaces.
Many homosexuals were extorted of money or violated by law enforcement officers. Indian courts are inundated with cases of sexual abuse or gang-rapes of homosexuals. 
The issues regarding the transgender community were more intense as the law was silent on the existence of a third gender. The binary gender system left no space for the non-binary community to thrive in the same legal, social and cultural atmosphere.
In the absence of social, educational and economic development members of the transgender community were driven into the dark world of crime resulting in the increase in prostitution, beggary and smuggling among their population.
THE INTERVENTION OF COURTS
After 70 years of independence and the two-decades-long battle of the LGBT community against the draconian law, the Honorable Supreme court on 6th September 2018 scraped down section 377 of IPC harassing the lives of these people for more than a century in the case Navtej Singh Johar v. Union of India. But, the battle began when in 2001 Naz Foundation (NGO) filed a petition before the Delhi high court challenging the constitutional validity of Section 377. The petition was preceded by an abhorrent act detaining men under suspicion of homosexuality by police officials in a park in Lucknow. Finally, in 2009, the Delhi High court in the case Naz Foundation v. Govt. of NCT of Delhi  held that Section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. Thus, it was in direct violation of their basic fundamental rights enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution. 
Later in 2013 in the case, Suresh Kumar Koushal v. Naz Foundation,  the Hon’ble SC reversed the judgment of Delhi High Court citing that the LGBT community constitutes a minuscule minority and therefore, does not deserve constitutional protection and rendering constitutional validity to Section 377. 
Not much later after the Suresh Koushal case, in 2014 a two-judge bench presided over the case National Legal Services Authority v. Union of India  involving the issue of recognition of hijras and transgender community as a third gender. This landmark judgment gave birth to a third gender and directed the government to treat its members as other backward classes (OBCs) for their social and educational development. It also conferred a right to freedom of choice of gender to transgender people without undergoing sex reassignment surgery. The SC in its detailed judgment conferred a spectrum of fundamental rights essential for human life. It was held that non-recognition of their identities was an infringement of Articles 14, 15, 16, and 21.
In the case of K. Puttaswamy v. Union of India (Popularly known as Aadhar case), The SC held that “Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in part III.”This judgment laid the foundation for the Navtej Singh Johar v. Union of India  case deciding the fate of the whole LGBT community. [12, p. 150]
CASE STUDY Navtej Singh Johar v. Union of India
The Supreme court observed that ‘Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society….The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.’ [12, p. 168]
The SC after referring to K. Puttaswamy and NALSA judgment held that:
The sexual orientation of an individual is natural and discrimination based on sexual orientation is a violation of freedom of expression.
Homosexuality cannot be regarded as a mental disorder and homosexuals have the right to live with dignity
To deny the LGBT community their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation
Section 377 of the Indian Penal Code criminalizes “unnatural sex”, with “natural sex” being between a man and a woman and of the penile-vaginal variety. This discriminates against other forms of sexual expression between consenting adults, especially among India’s sexual minorities. 
In short, the SC partially struck down Section 377 of the IPC to the extent that it criminalizes consensual sexual conduct between adults of the same sex and overruled the decision in the Suresh Koushal case. [12, p. 169]
This landmark judgment gave people of the LGBT community impetus to continue fighting for their rights and freedom to confront social bias, fearlessly. This helped in changing the perceptions of the urban population to a great extent due to social media, but the situation in rural areas has not changed much.
Transgender Persons (Protection of Rights) Act, 2019: Post NALSA judgment, the Indian Parliament attempted to identify transgender people as the third gender by introducing the Transgender Persons (Protection of Rights) Bill, 2019. It was passed in both houses and was given assent by the President of India on 5th December 2019. This bill was preceded by 2016 which was condemned by the transgender community, activists, and lawyers throughout the country. A standing committee reviewed the 2016 bill and submitted its report in July 2017 but its recommendations were not introduced in the new 2019 bill. Major issues in the act are as follows:
The provisions of the act do not confer with the NALSA judgment i.e. transgender people are not given the freedom to choose their gender to male or female without undergoing sex reassignment surgery.
The act webs them in the outdated and harassing public-service system by making registration and certificate from Magistrate compulsory which violates the fundamental right of privacy and negates the self-perspective identity of a person.
Its provisions confer upon them the rights of freedom, equality, and justice but are devoid of measures required to ensure the same.
Transgender and intersex persons might require a range of unique health care needs, and that should have been incorporated into the Act, activists say. 
THE ROAD AHEAD:
Navtej Singh Johar judgment does give us a peek into the lives of an underwhelmed and exploited community of LGBTQ. It restores their identity but it fails to scatter light on the steps needed for the revival of the community in the hetero-normative society. Several major issues require to be pondered upon for narrowing the gap between the binary and multi-spectrum society. Some of the issues are discussed below:
Same-Sex Marriage: One of the most popular topics in modern times is governing non-heterosexual marriages. Marriage between two individuals is governed by personal laws of the religion to which they belong, e.g. Hindu Marriage Act, 1955 governs marriage between two hetero-sexual Hindus, Sikhs and Jains, sharia law corresponds to the marriage of heterosexual Muslims, etc. In addition to these acts, two individuals of different religions are allowed to marry under the Special Marriage Act, 1954. But, none of the above acts defines or govern a relationship among non-binary people. In a country where homosexuality is taboo, labelling it as marriage seems like a distant dream. But there are instances where despite social pressure family members support same-sex marriages and marry the two individuals according to their religious rites and rituals. Thus, there is an urgent need for the enactment of unified civil law legalizing marriages irrespective of gender or sexual orientations.
Degree of prohibition: In different personal laws various prohibited degrees for relations are specified for heterosexual couples based on gender. These prohibited degrees won’t work for homosexual couples thus creating a void for a new enactment.
Divorce: Like marriage, the matter of divorce suffers from the same legal issues. But, the solution to this problem is more complex which can’t be achieved by amending the present acts. Grounds for divorce vary in nature and degree based on gender. Some grounds like cruelty, adultery and desertion apply to both but their interpretation varies according to men and women. Some like sodomy, impotency are only applicable to women. This distinction is not possible in the case of homosexual couples.
Adoption: According to Regulation 5(3) of the Adoption Regulation Act, 2017 allows a couple i.e. husband(male) and wife (female) who have been in a stable relationship for at least two years are eligible for adoption. Thus, there is no room for homosexual couples for adoption. They can only do so as a single parent. 
Surrogacy: The Surrogacy (Regulation) Bill, 2020 approved by Cabinet was introduced in the 17th Lok Sabha on 15th July 2019 and was also passed by it on the 5th August 2019. The Bill was further placed in Rajya Sabha on the 6th November 2019 for consideration and on 21st November 2019 referred to the Select Committee. It does not permit singles or LGBTs to have a child through surrogacy. Its main objective is to stop the commercialization of surrogacy and to protect the exploitation of surrogate mothers. It specifies that couples with certain conditions are eligible of having a surrogate child, where the term ‘couples’ is used in a binary sense. 
While the law-making body has been silent and passive on this sensitive issue, the independent judiciary of this nation has emerged as the true guardian of the rights of the citizens conferred by the citizen. In Arunkumar and Sreeja vs The Inspector General of Registration and Ors case the Madurai Bench of the Madras High Court employed the interpretation that” the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women. Therefore, a marriage solemnized between a male and a transwoman, both professing the Hindu religion, is deemed to be a valid marriage under the Act.” Similarly, in Shafin Jahan vs Asokan K.M. and Others (Hadiya case) the SC held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and “society has no role to play in determining our choice of partners and the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom” 
In this transitioning world, where at least 29 countries have legalized same-sex marriage. The Indian Parliament must step up and enact laws that increase the ambit of the fundamental rights conferred by part III of the Constitution to attain its maximum applicability to remote parts of the territory. They must incorporate the provisions that are based on the spectrum model of sex, gender, and sexuality. Also, the government should launch certain schemes to ensure the uprising of the downtrodden to the same platform next to others. Entitling them to a certain status with reasonable restrictions will help them to cope in the orthodox, hetero-normative society. Government must spread awareness among the population to eradicate homophobia from them.
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