LQBTQ refers to the community of individuals who identify themselves as Lesbian, Gay, Bisexual or Trans person among various others. They are people who belong to a community that is united by a common culture and social movements. These movements include people who do not identify with the community but stand in unity with them towards the movement of inclusivity, acceptance and PRIDE.
Pride Month is an annual celebration of the above defined LQBTQ+ community which occurs in the month of June. Various events are held during this period in support of recognising the LQBT community and helping the world recognize this community as one of them. The month is used to celebrate and bring momentum to the political and social condition of people belonging to the community. A prominent way this is done is usually peaceful protests, community events, etc that have started even in India since the 2018 landmark judgement of the Supreme Court. Since it is June 2020, it is important to understand the influence of the judiciary in aiding this celebration of sexual diversity.
As in any given momentous change in society at large, it is either the Judiciary or the Legislature which brings about social change of inclusivity and breaking norms, such as the adult suffrage, equal pay for equal work among others. In light of the same, the Judiciary has played a significant role in shaping the mindsets of the young and old on the topic of LGBTQ by allowing for a conversation on the topic. As the rights of the community have been made synonymous with Section 377, a Section introduced in 1533 by the British - it was the judiciary that bought up this conversation towards change in 2009. It is evident that the mindset of the people and the conversation surrounding the community was opened to the public since 2009 as the community final heard a voice from someone among them. Therefore, in understanding Pride Month, we must look into the Judiciary's role in India for allowing the same.
The conversation of LQBTQ in this article is not limited to Section 377 but will also include the Transgender Rights that have come in the form of various judgements related to workplace rights of transgenders, minority community among others.
Section 377 -
The outdated Section read as follows - 'Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be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. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The landmark judgement in 2018 has shaped the conversation in India in becoming an inclusive and diverse country, but before this judgement there was a long stream of judicial pronouncements which were in bad light of the community.
Naz Foundation v. Government of NCT of Delhi (2009) -
The real struggle against the Section began in 1991 when the publication - 'Less than Gay: A citizen's report was released. In 2001, the Naz Foundation took up the case and challenged the constitutional validity of Section 377 based on the Publication. The petition was filed seeking the legalisation of homosexual intercourse between consenting adults. The same was rejected on the basis of locus in 2003 by the Delhi High Court as there was no individual who was prosecuted by the said law. After the SC held that the petitioners have locus in the said matter, in 2008 the case came up again in the Delhi HC. On 2nd July 2009, the 150-year-old Section was overturned by the Court with the support of the then Law minister, Mr. Veerappa Moily. The Judgment was 105 pages long and delivered by the Chief Justice Prakash Shah and Justice S. Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.
It was decided by the Court that the judgment was valid up until the Parliament chose to amend the law and kept the provisions intact in so far as non-consensual, non-vaginal intercourse and intercourse with minor children was concerned. This decision was celebrated by Human Rights Activists and members belonging to the community. Though various appeals were filed against the judgment in 2012, the Attorney General G.E. Vahanvati decided against such appeals to be entertained in the Court stating that the law was outdated and one that was given by the British Rulers.
For more information visit - https://www.lawyersclubindia.com/judiciary/naz-foundation-vs-government-of-nct-of-new-delhi-4207.asp
Suresh Kumar Koushal v. Naz Foundation (2013) -
This petition was filed in the wake of the above stated judgment and against the same as many people like the current petitioner believed that the law was to be reinstated. In this said case of appeal there were mental health groups involved who filed a collection of written submissions to the Supreme court with commentary on the case grounded in their expert opinion. They noted that they see LGBT or queer clients who suffer significant psychological distress—depression, anxiety, and more—due to the threat and social censure posed by IPC 377. These mental health professionals argued that IPC 377 causes LGBT and queer individuals to feel that they are "criminals," and that this status is a significant part of their psychological distress.
However, the judges stated that there was only a fraction of population that belong to the said community and therefore without relying on International precedents like the Delhi HC, the SC reversed the judgement and reinstated Section 377. Both judges however noted that the Parliaments should debate and decide on the matter. A bench of justices upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offense.
Naz Foundation Curative Petition (2016) -
In 2016 there was a curative petition was filed by the Foundation under the realm of a curative petition which allows the proceedings on a decided matter to continue so as to provide area for a review in certain rare and limited instances. Therefore, this petition was allowed in the Supreme Court before a three-judge bench where the matter was heard. After the same, it was referred to a larger bench of five from the pre-existing 3 bench judges. As reflected in the order of the three-judge bench, this was because, in the opinion of the Court, the petition raised important and far-reaching questions of law - even at the curative stage. At the three-bench stage, the odds were stacked against the de0criminalizing of the Section despite the public uproar in the same times.
Justice K.S. Puttaswamy (Retd.) v. Union of India and Others (2017) -
Before the curative petition could be heard in the Supreme Court, the matter of privacy was bought forward before a nine-judge bench deciding on the fundamental right of privacy arising out of the Aadhar issue. The Court mentioned Section 377 and the Kaushal judgement stating that the rationale of the Court in the 2013 case is incorrect and disagreed with it. In particular, the plurality observed that the Koushal judgment's holding that only a 'minuscule minority” engaged in same-sex relations completely misunderstood the nature and concept of rights. The plurality went on to hold that, in its view, sexual orientation was definitively protected under the fundamental right to privacy. The plurality's view on the correctness of Koushal vs Naz Foundation was endorsed explicitly by one of the five separate opinions, and implicitly by the others, all of which held that the right to intimate decision-making was a facet of privacy.
However, as the curative petition that was challenging Section 377 was insub-judice, the judges authored that they would leave the decision regarding the constitutional validity to be in an appropriate proceeding. Many legal experts have suggested that with this judgement, the judges have invalidated the reasoning behind the 2013 Judgement, thus laying the ground-work for Section 377 to be read down and the restoration of the 2009 Judgement of the High Court, thereby decriminalizing homosexual sex. This judgement came out as a win for the community in an unexpected time, creating new precedent of a NINE judge constitutional bench in favour of their rights and demands.
Navtej Singh Johar v. Union of India (2018) -
The latest and the most celebrated judgment of Navtej Singh Johar is one which is of utmost importance and the reason for Pride Month celebrations in India as we speak. This petition came from the curative petition of five people - dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. The lawyers who argued in favour of the Petition were of the opinion that since the Court was able to finally see the stories of LGBTQ community members as the petitioners themselves and not through a foundation like in the previous cases, it helped in creating a sense of righteousness and responsibility in the Court. The matter was heard by the bench for a period of almost 9 months before the Court on September 8th 2018 declared Section 377 of the Indian Penal Code unconstitutional.
After listening to the independent stories of real-life members of the community and the need of the hour, the Court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found "criminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional". The Court was of the opinion that the people of the country have the choice of whom to partner and fulfil sexual intimacies with without being discriminated on that basis. The judgement notably also said that the LGBTQ community is now entitled to equal citizenship and protection of the law without facing any discrimination.
Delivering the 500-page judgement, Justice Indu Malhotra opined that, 'History owes an Apology to the members of this (LQBTQIA) community.” This sentence resonated throughout the country as the Section was made unconstitutional on the basis of Articles 14, 19, 21 (the golden triangle) as well as Article 15. This decision was the reason for the voices of various members of the community to be heard now. The next step in this direction has been sought to be for marital rights, parental rights, among others for the members belonging to the community.
For more information on the Judgement visit - https://www.lawyersclubindia.com/judiciary/navjot-singh-johar-v-union-of-india-4202.asp
Transgender Rights -
An important facet of the Pride Month includes the rights of Transgenders which have often been alienated from that of Section 377 and others as India as a country always accepted the third gender but not the sexuality. The Trans Community often referred to as hijras have always been accepted as the minority outcasts of the society until the Court involvement and creating and providing them with the rights they as a community deserve. The following are the judgements which has paved the path to an unfinished but developing road of Transgender rights -
National Legal Services Authority v. Union of India (2014) -
This 2014 landmark decision was one of the first in the direction of inclusivity with reference to the trans Community at large which affirmed to the country that the Trans people do constitute and belong to the minority group of the ‘third gender'. The petition was field by the National Legal Services Authority of India (NALSA) with the objective of providing free legal aid services to the disadvantaged sections of Indian society. The other petitioners in the matter were the Poojya Mata Nasib Kaur Ji Women Welfare Society, and Laxmi Narayan Tripathy, a renowned Hijra activist.
The Court after hearing the petitioner directed the Central and State governments to grant legal recognition of the third gender. It also recognized that the community was socially and economically backward and is therefore entitled to reservations. It ordered the government to provide transgender people with quotas in jobs and education in line with other minorities, as well as key amenities. The Court ruled that transgender people have a fundamental constitutional right to change their gender without any sort of surgery, and called on the Union Government to ensure equal treatment for transgender people. The Court also ruled that the Indian Constitution mandates the recognition of a third gender on official documents, and that Article 15 bans discrimination based on gender identity. In light of the ruling, government documents, such as voter ID cards, passports and bank forms, have started providing a third gender. This was one of the landmark judgements on the matter as the mere recognition came with a bundle of rights the community was seeking.
S. Swapna v. State of Tamil Nadu (2014)-
The petitioner in the current case applied for fresh SSLC and HSC certificates indicating her new name and gender identity. The Joint Director of School Examination (JDSE), Tamil Nadu refused to provide them to her. Though she had submitted her medical reports and certificate to the Tahsildar, she was denied the application. Based on the same a petition was filed in the Madras HC which opined that transgender people must be able to register their gender identity in important docs and the authorities in a case of this nature must help transgender persons rather than denying these reliefs citing technical issues. Due to this case, Swapna became the first transgender person to clear TNPSC Group IV exams.
Arunkumar v. Inspector General of Registration (2019) -
An unnoticed and pivotal advancement in the law came about in the last year when the Chennai High Court held that a transgender female does come under the purview of the term ‘bride' in the Hindu Marriage Act. The case was filed by the couple who was denied the registration of their marriage by the District Registrar though the same was solemnized as per the religious requirements. The Court held that Section 5 of HMA will have to include not only a woman but also a transwoman. It further added that it would include any intersex who identifies as a woman. The duty consideration is based on how the person perceives herself/himself in the society.
Holding that the rights guaranteed under Articles 14, 19(1) (a) as well as Article 21 and 25 will be infringed upon if the Court does not provide such a decision, the Court quashed the impugned orders and directed the Joint Registrar to register Arunkumar and Srija's marriage.
Swati Bidhan Burah (2020) -
Various transgender Persons Bills have been introduced in the Parliament since 2014, in the years 2016, 17 and 19. Until in 2019, the Bill was not passed by the Parliament as there were various issues that were being faced due to activism and lack of clarity. However, upon being passed the 2019 Act - Transgender Persons (Protection of Rights) Act became extremely controversial and led to various debates and protests in the country. The first trans Judge of Assam - Swati BidhanBurahsubmitted before the court that the right to self-identification of gender identity is a fundamental right that forms part of the right to life under Article 21 of the Constitution. The method of identification that has been stated was recognised as being a disproportionate invasion into the right to privacy of trans persons and is manifestly arbitrary. Articles 14, 15, 19 and 16 have also been mentioned in the petition as being violated.
In light of the same, the Supreme Court issued a notice to the Central Government regarding the same and the reply and further hearing on the same has yet to be scheduled. The important aspect that has been highlighted in the case is that of the Act not being able to help in reservation and employment as provided in NALSA and therefore violating the same.
The current situation of the community is definitely moving towards a positive and more inclusive state where there is more conversation on the matter. With more and more couples and individuals coming out as being a member of the community, the past 2 years have paved the path to create a safer space than before for the members. Though the country is not completely open and inclusive of the concept yet, movies like Shubh Mangal ZyadaSavdhan and EkLadki ko Dekhatohaisalaga have definitely opened up the conversation for young members of the community. The lawyers who were responsible for the landmark 2018 judgement are now in the works for a petition seeking marital rights such as insurance, ownership of property, bank accounts, etc as the next step in the right direction towards a more colourful future.