LGBT Rights in India

By Nikhil Nair, VIPS, New Delhi.

LGBT is a common term used to describe people who are Lesbians, Gay, Bisexuals and Transgender. The ambit of LGBT also sometimes widens up to include non-heterosexuals. A large population in India is homophobic. Being a part of the LGBT community is considered to be a sin for them. People belonging to such communities are considered as outcastes and outlaws by some. This majorly has to do with the mindset of the majority Indian population who consider sexual activities within the same sex as against the law of nature.

The judgements and laws have in every way tried to find their place within the present ambit of the mindset of the people. This in turn has created a distaste towards those who are attracted towards the same sex or are homosexuals. Indian law keeping this very fact in mind, has criminalised sexual activities with the same sex, which basically includes homosexual activities. Section 377 of the Indian Penal Code defines Unnatural offences as: 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.

In the year 2009, the Delhi High Court in the case of Naz Foundation vs. Govt. of NCT of Delhi ruled out Section 377 and other legal provisions related to it to be in direct violation of the Fundamental Rights provided by the Indian Constitution. Section 377 included any private consensual same sex conduct within the scope of itself. This came in as a huge relief for the LGBT community who desired a life similar to other heterosexuals.

The case was challenged in the Supreme Court of India. On 11th December 2013, the bench of Justice G.S Sanghvi and Justice S. J Mukhopadhya over ruled the Delhi High Court Judgment of decriminalizing consenting adult gay sex.

The Supreme Court judgment came as a shocker for the LGBT community. The status of homosexuals in the country has now gone back to being criminals once again. The LGBT community came out fierce and depressed with the decision of the Supreme Court. The community has openly expressed their anger over the judgment in the form of protests and rallies. The fuming community now thinks that they are left with no option but to change their orientation and change their way of living. For them, dying is a better option than pretending to portray a fake life that has been forced upon them by the Supreme Court. Many legal experts also criticized the judgment delivered saying that the time has come for judges to rise above their own personal biases and deliver a judgment on the basis of sound jurisprudence. The conservative groups in India however are overjoyed by the judgment delivered. Their basic argument is that western culture cannot be tolerated in India and the Indian population has to be kept aloof from all these “sins”.

So are the LGBT rights protected in India? The answer is in the negative. The recent judgment tagged India as a homophobic country. The United Nations has openly criticized India for setting forward such a bad precedent. The second largest democracy in the world is not democratic or liberal enough to give a proper status to the LGBT community and making them feel as a liability to the country.

Many gay right activists have mooted that the very section of IPC, Section 377 violates the fundamental rights mentioned in the Constitution of India. Article 14- Right to equality, Article 15-Prohibition of discrimination on various grounds, Article 19- Freedom of speech and expression and Article 21- Providing personal liberty to all its citizens are all the fundamental rights mentioned in the constitution that Section 377 is violating. The LGBT community feels that Section 377 of the IPC alienates them and makes them feel as a degraded part of the social group. The Supreme Court dismissed a review petition filed by the Central Government, Naz Foundation and others by saying that over the years, only a miniscule amount of people have been charged with the crime of homosexuality, so it is unnecessary to tag section 377 of the IPC as against the Fundamental Rights of Article 14, 15, 19 and 21 mentioned in the Indian Constitution. The very basis for India not signing the UN declaration for the protection of LGBT rights is that India does not endorse such rights. This makes India no different from the various other Middle East and Muslim nations such as Afghanistan, Iran, Saudi Arabia, etc. However the punishment for homosexuality is relatively less. The violation of Section 377, IPC is imprisonment for life or for a minimum period of 10 years and is also liable for a fine. The punishment for homosexuality in some of the Middle East nations is no less than life imprisonment or death.

Many feel that the ambit of Section 377 is vague, and not precise. The terminology used, for e.g., “Immoral” acts, makes it really hazy to define the nature and degree of homosexual activities. It leads to further harassment of the LGBT community in the hands of many, thus not giving them a secure life which they deserve to live.

However, there is a ray of hope for the LGBT community to still rely on the Indian system for giving them a proper status as normal human beings. While deciding the case, Justices G.S Sanghvi and Justice S. J Mukhopadhya also said that the Parliament should debate and decide on this particular matter. With a large number of Human Right activists and others coming together to protest against the judgment and providing a secure future for the LGBT community, a decision in favour of the LGBT cannot be pushed far back. A developing country like India which is showing progress in major fields should also show a progressive mindset in accepting the LGBT community as part of their own social group. The IPC coded by the Britishers in 1861, has since been followed in India. This judgment has thrown light on some of the provisions of the Law which are obsolete now or are not much in relevance to the present context of the modern society. In the true spirit of Law, it is time that such laws be amended.