Legal Rights of LGBTQ and its evolution

 

Legal Rights  of LGBTQand its evolution

In the ancient India there were many writings about homosexuality like in the Rigveda which is one of the four canonical sacred texts of Hinduism. It contains a phrase “Vikrit Evam Prakrit” meaning what is unnatural is also natural indirectly explaining homosexuality. In medieval India, the Hindus strongly disapproved of homosexuality but many sultans practiced homosexuality even after it’s prohibition in the then Sharia Law (Islamic Religious law).

Later, the British Empire also criminalized sexual activities because they too opined that homosexuality was against the order of nature thus included homosexual relationships, under section 377 of the Indian Penal Code. It was termed as an unnatural offence and stated whoever voluntarily had carnal intercourse against the order of nature with any man, woman or animal, shall be punished with either imprisonment for life or with imprisonment of up to 10 years along with fine.

This section 377 was introduced in the Indian Penal Code in the year 1861 which is basically a 150 years old codified law. In India, the popular opinion among the public was that Homophobia is nothing but a western imported product, the evidence of which can be traced through the introduction of section 377 in the Indian Penal Code by the British Rule and this notion is accepted not only in India but in several other British colonies such as Malaysia, Singapore, Pakistan, Bangladesh, Myanmar, Maldives and Jamaica. The section 377 of the Indian Penal code was a model followed by Australia, Fiji, Hong Kong and New Zealand and a model for similar laws that remain in Bhutan, Brunei, Kiribati, Marshall Islands, Sudan, Solomon Islands, Sri Lanka, Ghana, The Gambia, Botswana, Kenya, Nigeria, Tanzania, Uganda and Zambia.

However, the year 1994 marked the beginning of change when the very first petition challenging section 377 was filed by AIDS Bhedbhav Virodhi Andolan which was in relation to providing access to condoms at Tihar Jail as there were claims that two-third of the inmates were having homosexual behavior and were not provided with condoms because they were blocked by the IG(Kiran Bedi). The petition was eventually dismissed.

In 1999, Kolkata hosted the maiden pride march that was organized in South Asia. In 2001 NAZ foundation filed public interest litigation to challenge section 377 in Delhi High Court. In 2009 the Delhi High Court decision in NAZ Foundation vs. Govt. of NCT Delhi found section 377 against private, adult, consensual and non-commercial same-sex conduct to be in direct violation of the fundamental rights provided by the Indian constitution. Effectively that meant that section 377 was “decriminalized”, but not legalized. This case was dealt with considering two points; one was article 21 which stated that one cannot enjoy the right to life without dignity and pride. The second point stated that section 377 was violative of article 14 of the Indian constitution as there was unreasonable discrimination based on one’s sexual orientation also because it discriminates homosexuals as a class and in article 15 it is stated that sex based discrimination also amounts unequal treatment which is strictly prohibited in this particular provision of the Indian Constitution. This was a remarkable development for the LGBTQ community but didn’t last too long.

On 11th December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalizing consensual homosexual activity and this judgment was pronounced by the Court in the case of Suresh Kumar Kaushal vs. NAZ Foundation. After this judgment many international organizations commented that this was a step backwards for India. The bench, however, opined that this issue should be taken up by the Parliament and should debate and decide on the matter. In January 2014 Supreme Court dismissed the review petition filed by NGO NAZ Foundation and several others against its previous verdict on section 377 of IPC in the NLSA vs. the Union of India and ORS. In explaining the ruling the bench said: “while reading down section 377 the high court noted that a minuscule fraction of the country’s population constitutes LGBT people”. In February 2014, the Indian psychiatric society released a statement that homosexuality is not a disease and that it did not recognize it as one.

In April 2014 in the case of National Legal Services Authority vs. Union of India, the Apex  Court of India ruled that transgender people should be treated as a third category of gender. In 2015, a bill for decriminalizing of section 377 was introduced in parliament, but rejected by majority vote. For a fact, at this point, the United Kingdom had already passed legislation to allow same-sex marriage. This meant that the nation which gave us section 377 has now made same-sex marriage legal and homosexuality has been decriminalized in the UK since 1967.

In February 2016 the Supreme Court decided to review criminalizing of homosexual activity. On August 24, 2017, India’s Supreme Court finally pronounced its judgment in favor of the LGBT community and gave them the access to their freedom to safely express their sexual orientation and the judgment of Justice K.S. Puttaswamy vs. Union of India stated that Discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual and also stated that an individual’s sexual orientation is protected under the privacy law. However, the Supreme Court did not directly overturn any laws criminalizing same-sex relationships. After this judgment, LGBTQ community was allowed to express their sexual orientation, but homosexual acts remain criminalized by the IPC.

All the grievances turned into smiles when the judgment of Navjot Singh Johar vs. Union of India came out on 2018 September 6th. This case overturned the previous ruling of Suresh Kumar Kaushal vs. NAZ Foundation by the Supreme Court of India. The issue before the Apex Court was to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which, among other things, criminalized homosexual acts as an “unnatural offence”. The provision penalized any kind of sexual relationships among same sex, which largely affected homosexual relationships. On 6 September 2018, the court unanimously declared the law to be unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. The verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.

Written by: Yash Johari