Rights of LGBTQ+ Community in India
The seven colours of the rainbow, represent several sexualities, genders, and also, send a message that heterosexuality, binary genders, might be common but are definitely not the default. The people of the LGBTQ+ community, face discrimination, violence, torture and even death, for loving who they love, for being who they are. They took the world by storm starting with the 1970s, and they still haven’t stopped fighting for their rights, and those of others in their community. LGBTQ+ is a vast umbrella which houses underneath it many sexual and gender identities, starting from lesbian, gay, bisexual, transgender, queer/questioning, to pansexual, asexual, aromantic, bigender, genderqueer, genderfluid, etc. Each smaller community have their own flags.
What is the difference between them and us? Honestly, the only difference which exists is at the very basic, biological level, downright to our brain structure and hormones. The researchers at the Karolinska Institute in Stockholm, Sweden say that the differences are likely to have been shaped in the uterus or in early infancy. So, it can be said that our sexuality, our gender, is something we are born with and something we cannot change. It is the same as being born with heterochromia. It is natural. But yet, people who are born with something are discriminated because of it. The condition of the LGBTQ+ community, and their rights, worsen day by day. Russia keeps passing anti-gay laws, African countries still have criminalised homosexuality and keep on passing more severe laws against them and in our very own country, homosexuality was legalised only in 2018, and they still cannot have a legal same-sex marriage or serve in the military.
History of the LGBTQ+ Community in India
The Rig Veda, one of the oldest Indian scripture, states, “Vikriti Evam Prakriti,” which literally translates into “what is unnatural is also natural.” It talks about homosexuality and transgenders. Kama Sutra even talks about consensual homosexual intercourse. Like Historian Rana Safvi said, in India, love was celebrated in every form.
The evidence that different kinds of sexualities not only existed but were also celebrated in India can be found in many ancient temples. Two women erotically entwined with each other can be found at the 9th-10th century temple of Khajuraho, Madhya Pradesh. The Konark Temple has different kinds of erotica, including homosexuality of both genders and even engravings which might hint at polyamorous relationships.
Our great epics, like Ramayana and Mahabharata, are both filled with instances where all forms of sexualities and genders were treated equally. In Mahabharata, for instance, we have our first trans warrior – Shikhandini or Shikhandi, who was born a woman but made a man by divine intervention to fulfil the one purpose they had in life. However, there are still many ancient laws which were completely antagonistic to homosexuality. The Manusmriti lays down severe punishment for homosexuality, oral sex and anal intercourse. Arthashastra imposes fines if one is found to have indulged in homosexuality, albeit it is less than the one charged for prostitution between heterosexual individuals. So, in a crux, it can be said that homosexuality was celebrated in some places while criticized at others, even in Ancient India. There was some disapproval and a meagre fine, yes, but LGBTQ+ people were not criminalised, per se.
Coming to Medieval India. The great historian Al-Biruni stated in his works that the Indians were positively antagonistic to homosexuality. But, the Delhi sultans themselves were known to have male lovers, even though it was considered a sin by Islamic laws. It is common knowledge, especially after the movie Padmavat, about Alauddin Khaiji’s alleged male lover and slave, Malik Kafur. Even Babur, the founder of the great Mughal dynasty, wrote about his love for a boy, named Baburi.
The British Raj came next, with their conservative Biblical views, and homophobia, and made life hell for the LGBTQ+ people. In 1862, the infamous Section 377 was passed, based very much on Britain’s anti-sodomy laws, and criminalised homosexuality, stating it as unnatural. Even ‘Mahatma’ Gandhi, was homophobic and described it as a social evil, and a sin to commit. Other freedom fighters, like Gopabandhu Das from Odisha, however, wrote a poem in his collection, Kara Kavita (Poems from Prison) wherein he writes a poem about male-male relationships, which aren’t sexual but can be considered romantic. In 1945, Ishmat Chughtai publishes her book, Crooked Lines (Tehri Lakeer), a story highly controversial then, about two Muslim women.
Important Judgements Related To The Rights Of The Community
In 1991, AIDS Bhedbhav Virodhi Andolan (ABVA) who fought for the rights of the HIV-AIDS affected, released a 70-page report which revealed the level of torture gay people have to go through, especially at the hand of police.
Naz Foundation v/s NCT Delhi and Others (2001-2009)
Ten years later, in 2001, the NAZ Foundation, a sexual health NGO Working with homosexuals, filed a petition (PIL) in the Delhi High Court, calling Section 377 of the Indian Penal Code, unconstitutional as they violated several fundamental rights. The Delhi High Court dismissed the case in 2004. In February 2006, they filed a special leave petition for the case, and finally, the High Court of Delhi, in 2009, held that section 377, was in fact, unconstitutional.
Suresh Kumar Koushal & Another vs. Naz Foundation & Others (2013)
In less than 4 years after the landmark judgement, a Delhi-based astrologer, Suresh Koushal, challenged the case in the Supreme Court. Sadly, the Supreme Court overturned the decision, stating, “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”
Before this, many people had come out. So, when the decision was reversed, they couldn’t go back into hiding. Atrocities against the community increased. Suicide rates amongst the LGBTQ+ increased. It was a dark age for the people of this community.
NALSA vs. Union of India (2014)
The National Legal Services Authority of India (NALSA), filed a PIL for the recognition of the Transgender community as the official third gender of India, as such non-recognition was not only a violation of their constitutional rights but also of their basic, fundamental human rights. According to this landmark judgement, hijras, Eunuchs and all non-binary genders were thus to be treated as ‘third’ gender, they were given the right to choose their own identified gender, and the Centre and State Governments were directed to take steps to treat them as backward classes and provide them with reservation, to provide them with proper medical and public toilet facilities and so forth.
Analysis of the impact on the community: Henceforth, for the first time in Independent India, the people of the transgender community were regarded as legal citizens of India. This also helped them get sex-reassignment surgeries at subsidised rates, and the resulting reservation also helped in decreasing the unemployment rates amongst the trans people.
On the other hand, the negative impact is that hospitals, although the sex-reassignment surgeries were performed at subsidised rates, they didn’t usually give certificates or proof as such in order to avoid more trans people from coming. Crimes against trans people increased. In February 2015 alone, a report of 40 attacks on transgender people within six months was published by the Telangana Hijra Transgender Samiti.
Justice (Retd) K.S. Puttaswamy vs. Union of India
Although not exactly related to LGBTQ+, this landmark judgement held that Right to privacy is an integral feature of article 21 of the Indian Constitution.
The best impact this judgement had was it set the stones for the judgement of Navtej Singh Johar vs. UOI.
Navtej Singh Johar vs. Union Of India (2016-2018)
In 2016, famous Bharatanatyam dancer, Navtej Singh Johar, high-profile chef, Ritu Dalmia and writer, architecture-restorer and hotelier, Aman Nath and Keshav Suri, journalist Sunil Mehra and businesswomen Ayesha Kapur, filed a write petition in 2016, in the Supreme Court, challenging the validity of Section 377. The previous bench decided that a larger bench was required, and hence, even the then Chief Justice of India was made to be a part of the said bench.
The court finally held that one’s own sexual orientation was beyond their own control and based on biological factors beyond anyone’s control. On 6th September 2018, Section 377, after a battle of eighteen years, was finally scrapped. Justice Indu Malhotra even said that being a part of this community does not make them an aberration but a variation.
Impact on the community: People of this community were once again free to come out. They had laws protecting them against discrimination and mental and physical abuse. India now joined a proud league of nations that recognises true freedom of gender identity and sexuality. More and more people began accepting that heterosexuality is not the only normal.
Transgender Persons (Protection of Rights) Bill, 2019
This bill broadened the horizon of who all can be considered as transgender, including trans men, trans women, intersex, and genderqueer people; made the rules against discrimination stringent.
Analysis of the impact on the community: Even though this bill aims at protecting the rights of the transgender people, it also negatively impacts them. As this bill provides for legal gender recognition, it requires first for an individual to apply for a ‘transgender certificate’ from the District Magistrate from where they reside. Then, a certificate holder has to apply for a ‘change in gender certificate’, which signals authorities to change their legal gender to male or female. However, this requires proof of surgery. Only the District Magistrate can decide whether the certificate is completely correct or not.
This is way too much power in one person’s hand. Other than that, it also forces trans people to go into sex-reassignment surgery, regardless of what they want, which is a violation of the fundamental rights. Even though in the NALSA v. UOI case, the court had made clear that insistence of such surgery for choosing their gender as illegal, the bill still exists. Not only against this landmark judgement, but this law is also against the international standards for legal gender recognition.
Although India has come a long away than it was at during the time of our independence, there is still more to go. Keshav Suri believed that the still existing discrimination and irrational fear against the LGBTQ+ can only be removed by education. "I wasn't taught in school about Khajuraho and the presence of LGBT characters in our mythology. That has to change. Transgender people were considered gods and goddesses. They were great poets, artists and even administrators in medieval times," he says.
Suresh Kumar Koushal & Another vs. Naz Foundation & Others https://indiankanoon.org/doc/58730926/
Navtej Singh Johar vs. Union of India https://indiankanoon.org/doc/168671544/
National Legal Ser.Auth vs. Union of India & Ors https://indiankanoon.org/doc/193543132/
This article has been authored by Ananya Annapurna, a learner at Symbiosis Law School NOIDA.