History Background

• LGBT rights fight against two hundred years previous British era law that criminalised homosexual intercourse which is against the order of nature under the code
• Under section 377 of the Indian Penal Code, 1860 is classified as an unnatural offence.
• In 1977 first book published named "The world of homosexuality" based on their full and complete acceptance not tolerance and sympathy needs.
• In 1981 the first all India hijra conference was held in Agra,  attended by fifty thousand members across the country.
• In 1994 hijras were legally granted voting rights as a third gender. And the same year also the first petition challenging section 377 by AIDS Bhedbhav Andolan was dismissed that time.
• In 1999 Calcutta was host to the first pride march to ever be organized in South Asia.
• After that, the Naz Foundation filed a PIL (Public Interest Litigation) in Delhi High Court for justice against these laws which damage their pride, respect, community, rights and freedom in India.

Laws and Provisions:

There are certain provisions under section 377 of the Indian Penal Code, 1860 since the British ruling period:

• Any sexual acts that is against the order of nature are criminalized.
• The sexual relation against the order of nature for example between man to man, between woman to woman or between human being to animal.
• Offence punishable for life imprisonment which may extend to ten years with or without penalty.
• The rights are already mentioned as under six fundamental rights of our Indian Constitution to safeguard each and every individual who is the citizen of India under various Articles;
• Article 14 states concerning right to equality and equal protection to all citizens including men, women and transgender,
• Article 15 of the Indian Constitution states concerning protection against the discrimination on the grounds religion, race, caste, sex or birth place. It clearly means that gender based discrimination is unreasonable no one can discriminated on the basis of sexual orientation,
• Article 19(1)(a) of the Indian Constitution concerning that all citizens of India have the right to freedom of speech and expression. Defend their rights to express their gender identity,
• Article 21 of the Indian Constitution concerning protection of life and personal liberty. This right protects gender privacy, identity and integrity.

What is LGBT?

LGBT is a short form of the english term in which the first letter "L" stands for Lesbian means "a woman who is sexually attracted to other women", the second letter "G" stands for Gay means "a man who is sexually attracted to other man", the third letter "B" standd for Bisexual means "a person who has both male and female organs or is sexually attracted to both men and women", and the forth letter "T" stands for Trangender means " a person whose gender identity is different from the gender they were thought to be at birth".

Current existence of Section 377 of IPC and their Impact in India;

• After 150 years this section no longer exists without any reasonable grounds. No one can punish people who belong to LGBT community under section 377 of IPC.
• Social impact: they live with dignity, respect, freedom as normal as like other gender lives in a society.
• Educational impact: they can take higher education, schooling and jobs as normal as that.
• Personal impact: they are free to choose their partners too and live in a peaceful environment.
• Global impact: they can also take part to serve the nation and their contributions towards the nation helpful for developing countries.
• This restricted free life encourages their potential to grow, learn and apply to achieve their dreams and desired goals.

Case Laws;

Navtej Singh Johar v/s Union of India (6th September 2018):

• The five judges bench of the Supreme Court of India delivered a historical verdict on sexual orientation in which the homosexuality partially de-criminalised as under section 377 of IPC, 1860,
• With the support of Article 14 of the Indian Constitution consensual homosexual sex between adults was not a valid Intelligible Diffrentia means is not against the order of nature or not a Rationale Nexus means which is based on subjective test like morality ect., which is not clearly understandable.
• With support of Article 15 the approach of Delhi High Court at the time Naz Foundation case is that sex includes biological sex with sexual orientation is actually true which reflects improved understanding.
• With the support of Article 19 human sexuality can not be defined narrowly. So, discrimination against LGBT is completely unconstitutional. It gives right to express sexual orientation freely.
• With the support of Article 21 right to life and liberty include privacy, dignity and autonomy. It can be restricted only on reasonable grounds.
• But there is something which is still remains that in case of force relating to sex with minors, non-consensual sexual acts, and bestiality is also a criminalized offense.
• Apology to the members of LGBT community and their families, for the delay in providing redress for the dishonor and avoidance that they have suffered through the centuries.

K.S. Puttaswamy Vs. Union of India (2017):

• The nine judges bench of the Supreme Court of India is responsible for rectifying the judgment given in the case of Suresh Kumar Koushal vs Naz Foundation, 2013
• Sexual orientation is an essential attribute of privacy which is protected by various Articles of Indian Constitution.
• Equality in sexuality of each individual be protected at an even platform.
• The minuscule population of LGBT cannot be the ground to deprive them of the basic fundamental rights,
• And such limitations of the fundamental right cannot be held acceptable even when a few, as opposed to a large number of people, are subjected to hostile treatment.

National Legal Services Authority Vs. Union of India (2014);

• The court held that the non-recognition of their identities was in violation of Article 14,15,16 and 21 of the Constitution of India.
• The Supreme Court of India redirected the Government of India to treat the members of LGBT community as a "Third Gender" as an economically and socially backward class.
• It was also specified that the government should make proper policies for the LGBT community in the light of Articles 15(2) and 16(4) to protect equal opportunity in education and employment As per the judgement.
• The third gender would be placed as other backward classes (OBC) to offer them the benefit of reservation in government jobs and educational institutions both.
• The Court also took cognizance that a difference between one's birth gender and identity is not essentially a pathological condition.

Suresh Kumar Koushal Vs. Naz Foundation (2013);

• This case mainly based on two arguments first homosexual act is an criminal offense only Parliament have only the power to  decriminalised it.
• Second thing is that the right to privacy cannot cover the homosexual act.
• The Supreme Court of India step backward the judgment of the Delhi High Court and re-criminalised homosexuality.
• LGBT persons constituted a 'less minority' and therefore did not deserve constitutional protection and more determined that Section 377 of IPC did not suffer from the vice of unconstitutionality.

Naz Foundation Government Vs. NCT of Delhi (2009):

• The High Court of Delhi held that Section 377 of IPC, 1860 arguments supported decriminalisation, not legalization, and imposed an unreasonable restriction over two adults engaging by mutual consent intercourse in private.
• And also stated that a part of section 377 of IPC which criminalized the homosexual act need to declare unconstitutional.
• Whether it violates the basic fundamental rights enshrined under Articles 14,15,19 and 21 of the Indian Constitution.
• According to Article 21 of the Indian Constitution nobody can enjoy their life without dignity and privacy.
• And according to Article 15 of the Indian Constitution discrimination without any reason ( homosexuality treated as a class) is restricted against their sexual orientation.
• The first time Court de-criminalised the homosexuality in India.

Conclusion;
Apart from everything, why are LGBT persons facing a lot of problems that's only because of their gender identity like discrimination and physical and mental harassment not only at the workplace but also extended to the higher education, schooling, and vocational trainings.

People who belong to LGBT community are also human beings like others so they do not need to justify themselves because of their gender attractions. On the other hand the people for their natural sexual attractions can't be treated as a criminal offence. If two people want to happily live together with their consent, and it is also medically proven to be not a disease, it is all about natural things which are still out of human control. Hence, this type of act can't be criminalized.

The rights are given in our constitution equal for each one no matter they are man, women, and transgender they all are not only having the equal rights but also have protection against the discrimination on the basis of sex is prohibited as under Art. 14, 15, 19(1)(a) and 21 of the Indian Constitution.

"My life, my choice, my partner with consent",slogan state about that they also have right to live with pride so,  meanwhile everyone has a natural rights as a human being to live with the dignity in our society whether they are men, women or transgender without any restrictions.

Reference:

• https://www.google.com/amp/s/blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/amp/
• https://en.m.wikipedia.org/wiki/LGBT_rights_in_India

Citation:

• Navtej Singh Johar Vs. Union of India AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.
• K.S. Puttaswamy Vs. Union of India W. P. (Civil) No. 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161.
• National Legal Services Authority Vs. Union of India W. P. (Civil) No. 400 of 2012.
• Suresh Kumar Koushal Vs. Naz Foundation Civil Appeal No. 10972 OF 2013.
• Naz Foundation Government Vs. NCT of Delhi 160 Delhi Law Times 277; W. P. (Civil) No.7455/2001.

Written By: Vineeta Narayan