INTRODUCTION
A wide variety of people who identify as lesbian, gay, bisexual, or transgender make up the LGBT population in India. Queer (LGBT+) is a phrase frequently used in conjunction with the word “LGBT+”. Lesbians are drawn to other women on an emotional, romantic, and sexual level, whereas gay men are attracted to other men on the same levels. People who are transgender are defined as having a sexual orientation that differs from the sex to which they were naturally assigned. Bisexuals are defined as having a sexual attraction to both men and women.
The LGBT community is often associated with issues related to discrimination, human rights, and social stigma. The organization strives for acceptance, inclusion, and social equality—words that have varied connotations depending on the legal, religious, and cultural setting. Members of the LGBT community come from a wide range of age groups, socioeconomic classes, racial and religious origins, and cultural backgrounds. There are many subgroups in the community, and people can identify in a variety of ways according on their gender identity and sexual orientation.
Articles 14[1] through 18[2] of the Indian Constitution specify the right to equality. The rights guaranteed by the constitution include both the negative right to be free from discrimination and the positive right to be treated equally. The concept of equality forbids unfair discrimination against any individual. The freedom to select one’s life partner is strongly related to Article 21[3] of the Constitution. Everyone’s right to life is guaranteed by the Constitution, but this freedom can only be curtailed by laws that are reasonable and equitable in their implementation, both in terms of content and process.
HISTROICAL PROOF
There is historical proof of homosexuality in India from a wide range of sources, including Hindu texts,
“In every body, resides the divine who witnesses, guides, and supports and enjoys all that the body experiences.”
-Bhagavad Gita, Chapter 13, verse 22
Islamic literature,
“May none be as I, humbled and wretched and love-sick;
No beloved as thou art to me, cruel and careless.”
and images from historic architectural treasures like the Khajuraho temples. The consenting “homosexual conduct” was outlawed by the British with the introduction of section 377. In ancient India, there was support for the existence of many gender identities as well as the identification of transgender individuals. It seems from history and holy texts that pre-colonial India was far more accommodating of individual sexuality.
Inspired by the Buggery Act of 1533, this section was initially put into effect in 1861, during the period when Britain was still in control of India. It created controversy and legal problems in India by making homosexuality a criminal offense. The removal of Section 377 was a watershed moment in Indian legal history, as it demonstrated the commitment to recognizing and respecting the rights and dignity of every individual, regardless of their gender identity or sexual orientation. The debate over Section 377 made clear how important it is to defend basic human rights and advance an accepting and inclusive society.
THE DEBATES
Fundamental rights are guaranteed by the Indian Constitution and are the basis of all democracies worldwide. India, one of the democracies that is developing the quickest, saw a serious breach of its citizens’ basic rights when laws regulating their sexual preferences were enforced. Articles 14, 15, 17, and 21 of the Indian Constitution clearly violate the rights of those who are homosexual and engage in same-sex relationships.
CONSTITUTIONAL VALIDITY & CASE LAWS
Numerous public interest lawsuits and petitions to decriminalise Section 377 have been launched in India. In a historic decision, the Naz Foundation v. Government of the NCT of Delhi struck down a long-standing statute that forbade gay behavior carried out voluntarily. In 2003, the Delhi High Court denied a case filed by the Naz Foundation on the grounds of lack of locus standi. After the Non-Governmental Organization filed an appeal, the Supreme Court decided that they were entitled to file a Public Interest Litigation (PIL). The Delhi High Court decided that two adults’ right to equality under Article 14 of the Indian Constitution was breached by Section 377, which infringed upon their right to privacy after they gave their agreement to cohabitate. The Supreme Court decided that the section violates their right to life by discriminating against people based on their gender. Discussions over the legality of consensual gay behavior in India have been triggered by this historic verdict.
The court upheld portions of Article 377 of the Indian Constitution since it contravened other sections. It was anticipated that the Naz Foundation v. Government case would be sharply criticized, which prompted a petition to reverse the decision. The court maintained that Section 377 does not permit arbitrary application against certain groups and solely criminalizes sexual acts against the order of nature, not ordinary activity. Additionally, the court contended that the High Court ignored the reality that few LGBTQIA persons had been accused with crimes under Section 377. Without conducting more research, the court determined that Section 377 is not fundamentally illegal, ruling that police officers’ abuse of the law was not indicative of its validity. The verdict of the Delhi High Court was declared void. The case of National Legal Services Authority vs. Union of India underscores the noteworthy impact of transgender individuals on the historical and cultural landscape of India.
A. K. Sikri and Justice K. S. Radhakrishnan’s historic ruling in National Legal Services Authority v. Union of India changed the course of transgender people’s life in India. Transgender people were acknowledged by the NALSA ruling as a separate ‘third gender’ category, demonstrating India’s dedication to gender equality. The case brought up questions of whether it is morally acceptable to refer to transgender persons as “third gender” and if a guy who is born a man but leans more toward women has the right to be recognized as a woman. The court ordered the government to recognize the gender identities of transgender people and said that Hijras and eunuchs should be formally categorized as “third gender.” In addition, the court ordered federal and state agencies to set up dedicated HIV Zero-Surveillance Centers, create distinct public spaces, and guarantee that transgender patients receive the proper medical attention. The court further mandated social welfare awareness campaigns to enhance the well-being of the transgender population, increase public knowledge of the difficulties they face, and rebuild trust in the society.
LGBT persons were awarded fundamental rights and advantages by the Supreme Court in the historic Navtej Singh Johar v. Union of India case. The petitioners claimed that Article 15 and Article 19 of the Constitution were violated by Section 377 of the Indian Penal Code, which discriminated against lesbians, gay men, and other community members depending on the sex of their love partner. Chief Justice Dipak Misra’s bench nullified Section 377 on the grounds that it would violate their right to equality if consenting adult sexual behavior were made illegal. The court also considered Articles 14, 15, 19, and 21 while determining whether or not Section 377 is constitutional. According to Article 21, the petitioners claimed that any adult who is capable of making their own decisions has the right to select their life partner, taking into account all parts of their relationship—physical, mental, sexual, and emotional. An important turning point in India’s struggle for LGBT rights was the case.
The court stressed the significance of both gender and sexuality in identity by citing the NALSA ruling in support of equal legal rights for transgender people. Additionally, it made reference to the KS Puttaswamy case, which emphasized the necessity to protect this right by recognizing the inseparability of autonomy and privacy.
CONCLUSION
It’s past time that we be acknowledged for our inclusion, which is a defining feature of our democracy and something we were taught in school as “unity in diversity.” Same-sex partnerships have been accepted by our history, culture, and historical sites; why can’t we do the same for our fellow citizens? It is our duty as our country’s young to strive toward a more inclusive society that benefits everybody. We have to make sure that the rights and dignity of future generations are not violated by having to fight for them. Only 34 of the 195 nations in the world have authorized same-sex unions as of right now. It is disrespectful to our common humanity to give financial support to the hijra community while also marginalizing them. The difficulties that the LGBT community faces are made worse by these behaviors and viewpoints. Therefore, it is essential to create rules that are unambiguously recognized as upholding this community’s human dignity and that are strictly enforced.
