In India, homosexuality was an accepted aspect during the ancient times. Hinduism acknowledges a third gender. Naradsamhita and Sushruta Samhita forbids homosexuals from marrying to people of opposite sex, but Manusmriti has punishments listed for homosexuality. During the era of Mughals, homosexuality was severely criminalised, and during the British Era, came laws like The Criminal Tribes Act[1] which criminalised eunuchs and cross- dressers, thus restricting their freedom of representation and expression. The Indian Penal Code 1860 also included the provision of Section 377[2] which criminalised homosexuality, sodomy, bestiality, basically any sex done not for the purpose of procreation.

After independence the LGBT movement gained momentum in India. In 1974, homosexuality was stopped being considered as a mental disorder and was removed from the list of mental disorders. The movement was taunted, belittled but after 2000s, it slowly started getting accepted as the reality. Several pride walks, several judgments, and several decades later, homosexuality was decriminalised in India in 2018. Still, there remains a lot of struggles to overcome. The idea of human rights, is based on the assumption that all humans are equal before the eyes of the law, which means the rights guaranteed by the Constitution of any country would be equal for all the individuals including the rights of the LGBTQIA+ Community. Anything which violates these rights and dignity is violating the principle of equality, and paves way for discrimination. This discrimination also violates the principles of Indian Constitution which ensures justice and equality of status for everyone in social, economic, and political spheres of life. ART 19(1)(a) talks about freedom of speech and expression, this right is guaranteed to all the citizens including the LGBTQ community, yet their representation and expression is often restricted by the majority section of the society that thinks that their thoughts are not worth to be shared out in front of the society at large. This violates so many principles and the constitution itself at a fundamental level as it literally takes away the rights of people to speak from themselves, present themselves, form opinions and share their point of views. Their rights, these basic rights should be protected at all costs.





"RIGHT TO FREDDOM OF SPEECH AND EXPRESSION- INTERNATIONAL PROVISIONS AND ACTUAL SCENARIOS"



As per OHCHR,

"if we restrict the right to freedom of speech and expression, association, and peaceful assembly of people based on their sexual orientation, we will be violating the ARTs 19,20 of the Universal Declaration of Human Rights as well as ARTs 19,21, and 22 of the International Covenant on Civil and Political Rights"[1]

"ART 19 of the UDHR" states that- "everyone has a right to freedom of opinion and expression, this also includes the freedom to hold opinions without anyone's intervention and also to seek, receive, and impart information and ideas through any media and regardless of frontiers"[2]

1. "ART 19 of the ICCPR" states that- "Everyone can have their own thoughts and ideas without anyone bothering them.

2. Everyone can express themselves freely. This includes sharing information and ideas in any way they like, like talking, writing, drawing, or using any media they choose, without any limits based on where they live.

3. But when people use these rights, they must also follow certain rules and be responsible. These rules can only be the ones made by the law and should only be used to: (a) Protect the rights and reputations of others. (b) Keep the country safe or maintain order in society, or to protect public health and morals."[3]

European Convention of Human Rights, 1953 also states about the "Freedom of Expression, ART 10 of the ECHR" states that-

"Everyone has freedom of expression and it includes freedom to hold opinion, receive and broadcast information and ideas without the interference of public authorities, but the states have the right to acquire broadcasting, TV, and Cinema licensing rights. This right is subject to formalities, conditions, and restrictions as prescribed by the law which are reasonable in nature like public health, morality, reputation of others, disclosure of info., and maintaining the image of judiciary"[4]

American Convention on Human Rights, 1969, also talks about Freedom of Thought and Expression in ART 13.

UDHR article was the inspiration behind ART 19 of the Indian Constitution. ART 19(1)(a) of the Constitution of India States that- "All citizens shall have the right to freedom of speech and expression"[5] ART 19(2) talks about the reasonable restrictions imposed on freedom of speech and expression. The restrictions include, sovereignty and integrity of nation, security of the state, public order, friendly relations with the state, decency and morality, contempt of court, defamation or incitement to an offence.

Even though we have these rights in motion, many countries criminalise and censor the information of LGBTQI information, with the reasoning that it is to protect public morality, values and children as well as family. Governments do this for their own political gain, this is also referred to as "political homophobia" which is administered in to the public by government in order to gain more electoral votes. LGBTQI websites and domains are also banned in a lot of countries in order to restrict their flow of expression and their view points. "As per Open Observatory of the Network Interference, Indonesian government has banned LGBTQI websites, the websites which promote sex education, AIDS prevention, and feminism"[6]

In Ethiopia, and Iran government blocks websites which showcase the freedom of expression of LGBTQI community, they have also banned dating websites and apps like Grindr. Russia, on the same hand has enacted a law[7] in 2013 which bans the promotion of non- traditional sexual relations to minors. In USA LGBTQIA censorship was fought in the case of Gilman V. School Board for Homes County, Florida[8] in this case, the school board had banned the students from carrying LGBTQIA symbols like rainbows stating that these were sexually offensive in nature. The court held that-

"the school had no right to restrict the students, if they want to support the freedom of speech and expression of a minority community like the LGBTQI group."

Several bills were drafted and introduced in the US parliament after this case, yet they were opposed by the government and the defenders who argue that "giving" freedom of speech and expression to LGBTQI communities takes away the freedom of families and parents who would not want their children to know about these things or communities.

Later in 2014, UN Committee on the Rights of the Child, expressed its concern about the Russian law which was enacted in 2013. UN Committee said "that even though the law aimed at protection of children, it was also deeply curtailing the freedom of speech and expression as well as encouraging the stigmatization and discrimination against the LGBTQI community."[9]

Several countries and pressure groups, do not just stop by restricting the freedom of speech and expression, but they go with the Hate Speech part of the deal as well. UNHRC in one of its reports[10] has found that there has been a significant rise in the hate speech directed towards the LGBTQIA community.

In Poland, officials have declared some of the zones as "LGBTI – FREE" Zones. In Chechnya, a government official negated the existence of this community stating that law cannot arrest people who do not exist, and even if they do exist their families will know what to do about them.

OHCHR suggests that this kind of hate speech and restrictions on freedom of speech and expression should be combatted by stopping the discrimination and stereotyping against the LGBTQIA communities.



FREEDOM OF SPEECH AND EXPRESSION AND LGBTQIA COMMUNITY IN INDIA



Before British ruled over India, homosexuality was not thought of as a bad thing or as a culturally inappropriate behaviour. There have been mentions of people who identify to a third sex in the Hindu and Muslim literature, hijras and eunuchs held higher position of power in the courts of Mughal rulers. British however, preferred binary notion of sex. They held that there were only two genders, male and female and anything beyond that was criminalised. British enacted the Penal Code in India in 1860 and laid down section 377[11] which criminalised homosexuality, sodomy, bestiality, and other sexual acts not committed for the reason of procreation.

Another act which criminalised the rights of eunuchs and penalised them heavily if they ever tried to exercise their freedom of speech and expression and their rights of representation was the Criminal Tribes Act of 1871. This act held eunuchs as a criminal tribe and penalised every activity they performed including cross dressing and laying down their point of views.

In 2009, the Delhi High Court in the case of Naz Foundation V. State NCT New Delhi,[12] decriminalised homosexuality for the first time and held that section 377 was unconstitutional in nature. It also observed that section 377 was violating ART 21,14, And 15 of Constitution of India. But, yet again due to changing political scenarios and a different government, in 2013 the Supreme Court in the case of Suresh Koushal and Anr V. Naz Foundation and Other[13], reversed this judgment of the Delhi High Court, stating that only central government was allowed to take decisions on this matter.

2014, saw a ray of hope when in the case of NALSA v. Union of India[14] the Supreme "Court recognized transgender people as "third gender" and also concluded that any discrimination against these individuals on the basis of gender identification shall amount to infringement of right to equality which is being guaranteed under the constitution". In 2015 the Transgender Persons(Protection of rights) Bill was introduced in the parliament, which was criticised severely by the activists and the members of the Trans community, this bill was revised in 2016 and was more regressive in nature than the previous bill. Then, after incorporating various changes and taking expert opinions and involving people from the Trans community itself and making changes in the 2018 draft bill, the Transgender Persons (Protection of Rights) Act 2019 was passed in both the houses of the parliament. This act provides rights to transgender persons, it has decriminalised begging and done away with the requirement of establishing a committee which would review applications for identifying as a trans person. Still, the 2019 act has failed to incorporate the right of trans people to declare their own gender identity without undergoing sex reassignment surgery and no efforts were made for reservation of trans people in the fields of education and employment. This act is yet again criticised by the trans community because it has several vague points. The act's constitutionality has also been questioned by the Supreme Court in 2020.

In 2016, a petition filed by the Naz foundation was reviewed by the Supreme Court, and in the same year Transgenders were allowed to vote in the West Bengal Vidhan Sabha elections in the "others" category. In 2017, Right to privacy was held as a fundamental right under ART 21 in the case of K.S Puttaswamy V. Union of India[15] and observed that sexual orientation of a person would come under the ambit of their fundamental right to privacy, which gave a ray of hope to the LGBTQIA community. And, in 2018 the most historic judgment came in the case of Navtej Singh Johar & Ors. V. Union of India[16], which decriminalised homosexuality.

Decisions in all these cases reinstated the fundamental rights back to the queer community people. It was not as if they did not have it, but these rights were formally given to the people who were the rightful exercisers of it. The interveners in the hearing of the Navtej Singh Johar case had a lot of potentially correct arguments with regards to exercising of ART 19(1)(a) which provides Freedom of Speech and Expression to every citizen, along with some reasonable restrictions.



Arguments As Given By The Interveners Were:

1. ART 19(1)(a) would also include the freedom to express one's sexual identity and personhood:
   Section 377 of IPC 1860 was targeting the people on the basis of their identity. Once it was confirmed that a person belonged to LGBTQIA community, they were deemed as the targets for criminal prosecution unnecessarily and this is why several of them were unable to express their identities out in public because they were in constant fear of prosecution. "This was violating 19(1)(a) which should protect the fundamental freedom of LGBT persons to express their sexual identity, and orientation, through speech, manner of dressing, choice of romantic/partner, expression of romantic/sexual desire, acknowledgement of relationships, or any other means"[17].
   
   Section 377 is also used to harass, intimidate, rape, torture, threaten, and blackmail people by the police. Due to this reason people from the queer community hesitate to go to the police because it risks in outing their identity without their consent and makes them undergo unnecessary prosecution. Freedom of expression also includes expressing one's identity, interest, intellect, and personality out in the public as well as private feelings and portrayal of oneself in the closet. "One should not be forced to hide their sexual identity"[18]. And "one should not be forced to come out and express their identity against their own free will as well"[19]. The high court in the case of State of Karnatka V. Associated Management of English Medium Primary and Secondary Schools[20], held that-
   
   "Freedom of choice in the matter of speech and expression is absolutely necessary for an individual to develop his personality in his own way"
   
   Even in the case of NALSA V. UOI, court held that:
   "ART 19(1)(a) would also include expression of one's self- identified gender. It can also be identified through dressing, words, action, or other behaviour, there cannot be any restriction on one's personal appearance, choice of dressing, except in case of ART 19(2)"[21].
    
2. Sexual expression of homosexuals and transgenders being criminalised by section 377, violates ART 19(1)(a):
   Criminal prosecution hinders individuals to open up about their identities. Even in US and Canada courts have held that "freedom of speech and expression would also include expressing one's views peacefully in an appropriate times, place, and manner and denying gay persons their right to bring partners to school events is a violation of right to expression"[22] as in the case of Fricke V. Lynch.
    
3. No law should have a chilling effect on ART 19(1)(a):
   In the case of Khushboo V. Kanniammal Supreme Court observed and held that- "if the complainants did not agree with the appellant's view, they should have conveyed it via some form of media or public platform, and the law shouldn't be used in a manner which violates ART 19(1)(a)"[23]
    
4. Exercising the Right of Freedom of Speech and Expression by the LGBTQIA Community is not a reasonable restriction under ART 19(2):
   Adult sexual conduct, which is form of expression is not a reasonable restriction under ART 19(2). Morality, should mean constitutional morality and not morality as accepted by the public.
    
5. Freedom of Speech and Expression is protected under International Law:
   In the case of Irina Fedotova V. Russian Federation[24], court held that:
   "Restrictions on the right of freedom to speech and expression given under ART 19 of ICCPR on the basis of sexual orientation is violative of international law".
   
   Same was also held in the case of Kaos GL V. Turkey[25] that restrictions on freedom of speech and expression is violative of ART 10 of ECHR.

LGBTQIA Expression In Indian Cinema
Cinema and art are two of the most wonderful forms of expression, speech and thoughts. Cinema has contributed a lot to the LGBTQIA movement in India. Cinema and art have the power to change and build the perception of society.

For example, in movies like "Hum Aapke hai kon" and "Mera naam Joker" cross- dressing was shown to highlight the desires people have for the other sex, it was not thought of as bad, but was shown in a teasing manner. This portrayal was later merged into the heterosexual characters of the movie. "India has seen true to life splendour with films like "Fire" (1996) to "Margarita with a Straw" (2014) and seen a bold portrayal of an eccentric person also deriding gay culture."[26]

The movie "I am Omar", describes the struggles faced by the homosexuals when section 377 had criminalised their freedom of expression. The movie, shows how a same-sex couple is caught engaged in an intimate activity at a public place and how a soldier threatens to expose them and they bribe him into not doing so, later finding out that all of that was a staged act to extort cash out of the couple.

There has been a shift in the portrayal of LGBTQIA identities during the last decade. People have become more open to the idea that people from same sexual orientations, or different sexual orientations can be in relationship with each other, and it is shown in a reasonable manner, by slowly-slowly imbibing this thought process into the minds of people and removing/ clarifying their doubts about the non-existing abnormality which is shown in earlier forms of media, one of the examples, would include the movie "Chameli" in which a dialogue exchange happens between the main leads of the movie, the male lead is surprised to know that the female lead has a gay friend, who is in love with a cross- dresser, to which the female lead replies that same sex relationships are not abnormal, "bas pyaar hona chahiye".

"There are host of alternate Hindi films that made an effort to understand the queer movement. Few amongst those are 'My Brother…Nikhil', 'IAM', 'Yours Emotionally', 'Water', 'I Can't Think straight', 'Luck by Chance', '68 Pages', 'The Pink Mirror', and so on. The contributions of gay rights activists and filmmakers like Sridhar Rangayan, Onir and Rituparno Ghosh to this genre have been remarkable"[27].

One such movie which was highly praised by the critiques as it showed the nuances of a same sex relationship amidst the validity of section 377 was "Aligarh", portraying the life of a professor in Aligarh University, who was caught in his own home engaged in a same-sex relationship, with this privacy and expression being hindered and made fun of. The film highlights the trial against him and how the society plays a role in deciding the life of a person based on his sexual preferences.

Cinema has been a very powerful instrument in broadcasting and expressing thoughts and opinions and conveying the reality to multiple people all at once. The fundamental rights under ART 19(1)(a) of the Constitution protects the creative rights and liberties of the filmmakers, directors, producers, actors, writers, authors, and anyone who expresses themselves. This has also been observed by Gujarat High Court in the case of Kiran Kumar Devmani V. State of Gujarat[28] where when government of Gujarat denied tax exemption to a Gujarati movie on homosexuality named "Meghdhanushya" the court struck down this order.

The Supreme Court has always upheld the creative rights of freedom of speech and expression in a lot of cases. The court's understanding and observation always holds the firm belief that the "Truth which is happening around in the society, must be portrayed without any filters or restrictions."

Conclusion
As per various international laws and our own Constitution, Right to Freedom of Speech and Expression is a fundamental right which should be guaranteed to everyone, keeping aside their sexual orientations. These laws were never meant to be gender restrictive in nature, there has been a fallacy in the presumption that anything which is not binary in nature is morally offensive and therefore, should not be allowed to be portrayed out in public.

This presumption led to several movements and several historical judgments by the Judiciaries and Courts of several countries for reinstating the already established fact/law that every person, including those who belong to the LGBTQIA Community have the right to freely express themselves. Freedom of Expression is a manner by which they can be truly themselves and come out in public and express their views as any other individual of this society. If we curtail their expression, ideas, and thoughts, we are heading towards the collective doom of the society.

Freedom of speech and expressions also includes creative liberty and how different forms of expressions hone the thinking of the society. In the recent times, when we recently crossed the 5th anniversary of striking down section 377 and embracing the reality, there still remains a lot of milestones to be achieved as a non-discriminatory country.

End-Notes:

1. UN Office of the High Commissioner for Human Rights (OHCHR), 'Born Free and Equal: Sexual Orientation and Gender identity in International Human Rights Law', September 2012, HR/PUB/12/06, available at: https://www.refworld.org/docid/5065a43f2.html
2. UDHR 1948, ART 19
3. ICCPR 1966, ART 19
4. ECHR 1953, ART 10
5. Constitution of India 1950, ART 19(1)(a)
6. Outright Action International, 'Gender Justice and Freedom of Opinion and Expression for LGBTI persons' URL: https://www.ohchr.org/sites/default/files/2021-11/OutRight-Action-International.pdf
7. For the Purpose of Protecting Children from Information Advocating a Denial of Traditional Family Values 2013
8. Gillman v. School Board for Holmes County, Florida, 567 F. Supp. 2d 1359 (N.D. Fla. 2008)
9. Outright Action International, 'Gender Justice and Freedom of Opinion and Expression for LGBTI persons' URL: https://www.ohchr.org/sites/default/files/2021-11/OutRight-Action-International.pdf
10. OHCHR, 'Born Free and Equal: Sexual Orientation and Gender identity' in International Human Rights Law, URL: https://www.refworld.org/docid/5065a43f2.html
11. IPC 1860, s 377
12. Naz Foundation V. State NCT New Delhi 2009
13. Suresh Koushal & Anr. V. Naz Foundation and Other, 2013
14. NALSA v. Union of India (2014) 5 SCC 438.
15. K S Puttawswamy V. UOI AIR 2017 SC 4161
16. Navtej Singh Johar V. Union of India Writ Petition (Criminal) No. 76 OF 2016
17. Bar and Bench, 'Note on the Arguments of Intervenors in Navtej Singh Johar V. UOI Criminal Petition 76 OF 2016' , URL: https://images.assettype.com/barandbench/import/2018/07/Krishnan-Venugopal-written-submissions.pdf
18. Ibid
19. Red, White, and Royal Blue, Mathew Lopez, Amazon Studios, [ 2023]
20. State of Karnataka V. Associated Management of English Medium Primary and Secondary Schools (2014) 9 SCC 485
21. National Legal Services Authority v. Union of India, (2014) 5 SCC 438
22. Fricke V. Lynch, 491 F. Supp at 385(D.R.I 1980)
23. Khushboo v. Kanniammal (2010) 5 SCC 60)
24. Irina Fedotova V. Russian Federation, Communication no. 1932/2010
25. Kaos GL V. Turkey 2016
26. Mehak Chugh, Lalit Kumar, 'A Study On The Portrayal Of Different Sexualities In Indian Cinema And Its Acceptance In Indian Society With Special Reference To Delhi NCR'., International Journal of Creative Research Thoughts URL: https://ijcrt.org/papers/IJCRT2203379.pdf
27. Pushpinder Kaur, 'Gender, Sexuality and (Be) longing: The Representation of Queer (LGBT) in Hindi Cinema', Amity Journal of Media & Communication Studies URL: https://amity.edu/Pushpinder.pdf
28. Kiran Kumar Devmani V. State of Gujarat CIVIL APPEAL NO. 7208 OF 2015
29. The Criminal Tribes Act 1871
30. Indian Penal Code 1860, s 377