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Key Takeaways

  • LGBTQI+ relationships have been documented in India’s rich history at different time periods.
  • Consenting Same-Sex Relationships were decriminalised by the Supreme Court in 2018.
  • There is still a lack of safeguards in areas such as marriage, adoption, guardianship, and surrogacy.

Introduction

Lesbian, gay, bisexual, transgender, queer/questioning and intersex (LGBTQI) people's human rights are receiving more attention globally as a result of significant developments in several nations in recent years, including the introduction of new legislative safeguards. The Indian Constitution's Preamble calls for the social, economic, and political equality of position for all people. In Articles 14 and 21 of the Constitution, the Right of Equality before the law and Equal protection under the law are protected. The Supreme Court of India declared in NALSA v. Union of India[ AIR 2014 SC 1863] in April 2014 that transgender people's rights and freedoms in India were protected by the Constitution. In the Section 377 verdict review in September 2018 in the case of Navtej Singh Johar v. Union of India [AIR 2018 SC 4321] the Supreme Court also decriminalised adult consenting same-sex partnerships.

These rulings are regarded as landmarks because of how broadly they interpreted constitutional rights and how they empowered LGBTQI+ people. Both decisions represent a pivotal moment for LGBT rights because they not only overturned a remnant of British imperial control but also mandated that LGBTQI+ Indians get full constitutional protections. Although this was a much-needed win, it does not imply that LGBTQI+ individuals in India are entirely free or regarded as equal among their fellow citizens. It emphasises how much work is still needed to repeal outdated and oppressive anti-gay laws in India and the rest of the world.

Given the size and diversity of India, opinions on the matter and the experiences of LGBTQI+ people vary greatly. The differences between urban and rural India, language, caste, class, and gender all contribute to the difficulty of adequately comprehending this issue. However, we know that India's LGBTQI+ population is not a "minuscule minority." They have a powerful voice that will not go unheard in their fight to recover equality.

Indian History of Homosexuality

When a person is attracted to people of the same gender to which he or she belongs, that person is said to be homosexual. Homosexuality is defined as sexual desire or behaviour directed toward people of the same sex or gender. It is not a brand-new idea; India has been familiar with it for a very long time. Sexual practices between women are depicted in ancient texts like the Rig Veda, which dates back to roughly 1500 BC, the existence of sculptures as revelations of a feminine universe where sexuality was based on pleasure and fertility. Historical pieces of evidence of male homosexuality in medieval Muslim history include Malik Kafur, the description of homosexual practises in the Kamasutra, and the harems of young boys kept by Muslim Nawabs and Hindu Aristocrats.

In her book, Amara Das Wilhelm accumulated years of in-depth research on Sanskrit writings from mediaeval and ancient India, demonstrating that homosexuality and the "third gender" were not only present but also extensively tolerated in Indian society at the time. Lesbians were referred to as "Swarinis" in the Kama Sutra, ancient Hindu literature written in the second century. These women frequently got hitched by other women and had kids together. Additionally, they were easily accepted by both the "third gender" community and mainstream society.

Section 377

In 1860, the Indian Penal Code was adopted. As a result, this harsh rule from the Victorian era criminalises homosexuality based on Judeo-Christian faith rather than scientific evidence. The law invaded some people's privacy, diminished their dignity, and assigned certain people lesser ranks based only on how they looked or who they loved. In a progressive society, no one's role-playing should be dictated by their sexual orientation or gender identity, but Section 377 of the Indian Penal Code, 1860 accomplished just that.

According to Section 377 of the IPC, homosexual and transgender communities are included in the category of those who engage in sexual conduct with the same sex since it is "against the order of nature." This is a completely absurd argument, though, given numerous studies have shown that homosexuality is present in at least 1500 species of animals, particularly dolphins. Therefore, how can a single species, namely Human Beings, declare it to be against the order of Nature since it is present in so many species?

The terrible, centuries-old British relic known as Article 377, which permitted the legal system to prosecute "sexual conduct against the order of nature," was overturned by the Supreme Court in 2018. It was a significant triumph for India's LGBTQI+ community. They would no longer be considered "criminals" in the eyes of the law, at least.

Sadly, they still face criticism from the general public and are frequently the subject of vicious family rumours. Although the courts have made their decision, it will take a while before Indian society's long-standing norms are altered. But we must begin somewhere. And we must begin discussing it.

Transgender Persons (Protection of Rights) Bill, 2019

The following elements of the bill have been severely criticised by the trans community in India because they violate their fundamental rights and do not reflect the NALSA ruling.

  1. According to the NALSA ruling, the ability to choose one's sexual orientation is a crucial aspect of one's right to privacy and is taken away by the law.
  2. While a similar offence committed against a woman would result in a harsh sentence lasting up to 7 years, the punishment for sexual abuse of transgender people is merely two years.
  3. The measure should also be criticised for mistakenly excluding the violence and tragedies that transgender people experience inside their own families.
  4. There are no provisions on scholarships, reservations, curriculum changes to include LGBTQI+ people, or guaranteeing safe inclusive schools and workplaces for the transgender community.

Legality of LGBTQI+Marriage

In India, having a straight sexual orientation is seen as more of a blessing whereas beinghomosexual is viewed as sinful. In India, there is a generational divide between the younger and older generations, with the younger generation generally embracing the idea of "gay" marriage, or marriage as a legal option for homosexual, lesbian, and bisexual couples. Given the increasingly restrictive state-based marriage regulations, this increased acceptance is incongruous.

The most appropriate course of action in this situation would be to take same-sex marriage into consideration under Indian personal marriage rules. Hindus, Muslims, and Christians all have different laws in India on marriage, succession, and pension rights that apply to married couples only and do not apply to same-sex relationships.

Any two Hindus may get married, according to the Hindu marriage laws, which apply to Hindus, Janis, Sikhs, and Buddhists. It states clearly that the bride and bridegroom must be at least eighteen and twenty-one years old, respectively. According to the Christian Marriage Act, a male must be at least twenty-one years old and a woman must be at least eighteen. There is no legal definition of "marriage" in Islam because it is not governed by a statute, but it is typically understood to be a contract entered into for the purpose of procreation. As a result, it appears that all Indian personal law solely considers marriage to be a heterosexual partnership.

Transgender couples are not taken into account by the Special Marriage Act either. It also applies solely to heterosexual couples.

It is impossible to ignore the enormous antagonism that the LGBTQI+ community faces from a loud segment of Indian society. Along with India's rapid modernization, traditionalist and revivalist ideologies have become more prevalent. Though misguided, this opposition to liberal legislation is made in the name of tradition, religion, and culture.

The constitution does not specifically mention the right to marry. However, the Supreme Court determined that it is a part of Article 21 of the Indian Constitution in the landmark case of Lata Singh v. State of Uttar Pradesh[(2006) 5 SCC 475]. In this inter-caste marriage case, the Supreme Court ruled that once a person reaches adulthood, they are free to marry whoever they choose.

Supreme Court of India ruled in the matter of Shakti Vahini v. Union of India[(2018) 7 SCC 192] in March 2018 that an adult has the fundamental right to marry the person of their choice. "A person's choice is an inextricable aspect of dignity, for dignity cannot be thought of where there is the erosion of choice," the court ruled. True, the same is constrained by the constitutional limitation principle, but in the absence of such a restriction, nobody, and we mean nobody, must be allowed to interfere with the fulfilment of the said choice. It would be quite challenging to imagine dignity in its hallowed totality if one's freedom to express one's own preferences were restricted.

Kerala High Court's decision declaring Hadiya and Shafin Jahan's marriage null and void was overturned by the Supreme Court in the case of Shafin Jahan v. Ashokan K.M. [(2018) 16 SCC 368]. The Supreme Court approved the restoration of the marriage and said that while the NIA-led investigation into the marriage and any other criminal activity should go through, there should be no interference with the union. "The marriage between Shafin Jahan and Hadiya was legitimate as the court did not identify any ulterior motive behind the marriage," the Supreme Court said. The claims made by Hadiya's father were false and had nothing to do with the marriage. India's constitution guarantees liberty and the right to make decisions.

LGBTQI+ rights ought to be acknowledged as a component of human rights. Articles 14, 15, 19, 21, and 29 are all broken by not recognising same-sex unions, not allowing adoption, guardianship, surrogacy, or IVF, and not having access to secure and LGBT+ inclusive workplaces. Additionally, the Army, Navy, and Air Force Act's Articles 14, 15, and 21 are broken when discrimination exclusively on the basis of sexual orientation occurs.

Social norms, customs, cultures, or traditions cannot ever be a legal justification to prevent one person from exercising his or her fundamental rights under the constitution, according to the universal law of human rights. It would not have been possible to pass progressive legislation in our nation or get rid of social ills like child marriage, Sati, dowry, infanticide, etc. if we began explaining everything in terms of cultural beliefs, and societal values, and public policy.

Adoption Rights

India needs to abandon its antiquated rule prohibiting couples from the LGBTQ+ community from adopting children. Regardless of faith, adoption is mandated by the Juvenile Justice Act of 2015 and the Adoption Regulations of 2017. It states that "no kid shall be placed in adoption to a couple until they have at least two years of solid marital connection," while being written in contemporary times and based on colonial authority. Therefore, a couple that is unable to legally wed in India cannot satisfy this condition.

Due to this legislation, not only are members of the LGBTQ+ community denied the opportunity to adopt children, but also children are denied the affection and love of their parents.The Supreme Court ruled in Lakshmi Kant Pandey v. Union of India[1987 AIR 232] that every child has the right to love and be loved, to grow up in a loving and caring environment, and to have both moral and material stability and that this is only achievable if the kid is raised in a family

Surrogacy Rights

ART operations are made permissible for live-in couples and single women under the Surrogacy (Regulation) Bill, 2019 and the Assisted Reproductive Technology (Regulation) Bill, 2020, however LGBTQ persons and single fathers are discriminated against.By limiting surrogacy to heterosexual couples and prohibiting it for LGBT couples, the Bill distinguishes between the two groups.

The Bill is discriminatory in nature because it violates the Constitution's equality clause, which forbids discrimination and exclusion, by excluding LGBT couples from choosing surrogacy. Additionally, maintaining the practice of surrogacy tied to the idea of heterosexuality is against several international treaties.

Conclusion

Despite the fact that both the 2014 NALSA judgement and the landmark 2018 court ruling marked a significant step forward for the LGBTQI+ rights movements in India. Still, LGBTQI+ people in India are not treated equally and do not enjoy the same rights as heterosexuals. Additionally, they continue to experience violence and prejudice in many aspects of life.

Therefore, it is imperative that the government shed its conservatism and take decisive action to end the stigma, prejudice, and abuse that surround the group. It is past time for the government to create new laws or amend existing ones governing marriage, adoption, guardianship, inheritance, educational institutions, employment, healthcare services, etc. for the benefit of LGBTQI+ people's education, social security, and health, with a special focus on Transgender People.


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