LGBTQ+ RIGHTS AND SECTION 377

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Published On: 2nd April, 2024

Authored By: Ratiksha Parate
Dr. Ambedkar College of Law, Nagpur

“We should indeed keep calm in the face of difference, and live our lives in a state of inclusion and wonder at the diversity of humanity.”       

                                                                                                   –George Takei 

  1. INTRODUCTION

To introduce the topic, the renowned German philosopher Johann Wolfgang von Goethe once said, “I am what I am, so take me as I am.” Echoing these sentiments, this article focuses on the LGBTQ+ community in India, their struggles, and the societal challenges they face, including rejection from their families for being true to themselves.

The concept of human rights is rooted in the principle of equality among all individuals. In today’s world, where movements for equality are prevalent globally, penalizing individuals for their sexual orientation is a grave injustice. Prior to 2018, India was among the countries where homosexuality was considered a criminal offense, leading to persecution and abuse of the LGBTQ+ community. However, thanks to a landmark judgment by a constitutional bench, including notable judges like D.Y. Chandrachud, Dipak Mishra, and Indu Malhotra, consensual adult sexual relationships, including same-sex relations, were decriminalized on September 7, 2018.

This article aims to delve into the history of homosexuality in India, the implications of Section 377 of the Indian Penal Code, 1860, and how it infringed upon the fundamental rights of citizens. Furthermore, it will analyze the significant court rulings that paved the way for the decriminalization of this section, providing readers with a comprehensive understanding of the timeline of the LGBTQ+ rights movement in India.

  1. Historical background

  • He fight for LGBT rights in India traces back to the era of British colonial rule, when laws criminalizing homosexual intercourse were enacted under Section 377 of the Indian Penal Code in 1860. This section classified such acts as “unnatural offenses.”
  • In 1977, the first book advocating for full acceptance, rather than just tolerance, of homosexuality was published, titled “The World of Homosexuality.”
  • The movement gained momentum in 1981 with the first All India Hijra Conference held in Agra, attracting fifty thousand attendees from across the country.
  • In 1994, hijras were legally recognized as a third gender and granted voting rights. However, that same year, a petition challenging Section 377 by AIDS Bhedbhav Andolan was dismissed.
  • In 1999, Calcutta hosted the first pride march in South Asia.
  • Subsequently, the Naz Foundation filed a Public Interest Litigation (PIL) in the Delhi High Court to challenge the discriminatory laws under Section 377, seeking justice for the LGBT community’s pride, respect, rights, and freedom in India.

  1. Historical proof of homosexuality in India 

Historians and mythology experts contend that homosexuality was present in ancient Indian culture, and they argue that the decriminalization of Section 377 has brought India back to its cultural origins, where love in all its forms was embraced and celebrated. A wealth of historical evidence supports this view, including references in Hindu Scriptures, Muslim literature, and the intricate depictions found in ancient structures like the Khajuraho temples.

  • Homosexual unions acknowledged in the Vedic system

In his book “Tritiya-Prakriti: People of the Third Sex,” author Amara Das Wilhelm presents insights derived from extensive research on Sanskrit texts from medieval and ancient India. These texts provide evidence that homosexuals and individuals belonging to the ‘third gender’ not only existed in Indian society during that era but were also widely embraced.

Wilhelm discusses how lesbians were identified as “Swarinis” in the book, drawing from the “Purushayita” Chapter of the renowned ancient Hindu text, the Kama Sutra. These women often entered into marriages with other women, bore children, and enjoyed acceptance from both the ‘third gender’ community and mainstream society. Additionally, the book references gay men, also referred to as “Klibas,” who, despite being labeled as impotent men, primarily represented individuals who experienced impotence with women due to their ‘homosexual tendencies.

  • Evidence of homosexuality in Hindu scriptures

Gender fluidity was recognized in ancient India among both humans and Yakas. Queer themes are evident in ancient epics, scriptures, as well as in prose, poetry, art, and architecture from the medieval period.

  • Evidence in Ramayana:

According to Valmiki’s Ramayana, upon his return from Lanka, Lord Hanuman observed rakshasa women engaging in intimate acts of kissing and caressing each other. Many people firmly believe that Ramayana is not fictional but a part of India’s cultural heritage.

  • Krittivasa Ramayana’s Depiction:

In Krittivasa Ramayana, it is recounted that King Dilip, who had two wives, passed away without leaving an heir. Following divine guidance in their dreams from Lord Shiva, the queens engaged in a sexual relationship with each other, resulting in one of them conceiving and giving birth to King Bhagiratha, renowned for bringing the Ganga from heaven to earth.

  • Transgender Story in Mahabharata:

The Mahabharata narrates the tale of Shikhandini, also known as Shikandi, who, born as King Drupad’s daughter, was raised as a man. With the help of a yaksha, she later transformed into a man to participate in the Kurukshetra battle and played a pivotal role in Bhishma’s demise.

  • Birth of Lord Ayappa:

According to mythology, Lord Ayappa’s birth is attributed to a union between Lord Shiva and Lord Vishnu. In the Matsya Purana, Lord Vishnu transforms into a woman named ‘Mohini’ to deceive demons into consuming all the holy water. Lord Shiva, captivated by Mohini, unites with her, leading to the birth of Lord Ayappa.

  • Evidence in Islamic literature

Babur, the founder of the Mughal empire, appears to have harbored a same-sex attraction as well. In his memoir, Baburnama, he expresses affection for a boy named Baburi in Kabul.

Certain Sufi poems include homoerotic or same-sex references. For instance, the Sufi Saint Shah Hussain expressed his love for a Hindu boy named Madho Lal in his writings. Ultimately, Shah Hussain and Madho Lal were laid to rest together in Lahore, with their ashes symbolizing a divine love that transcended mortality.

  1. Section 377 IPC

Section 377 of the Indian Penal Code pertains to unnatural offenses and was once regarded as one of the most severe provisions within the Indian legal framework, particularly during a period when consensual sexual activity between individuals of the same sex was deemed a criminal offense.

According to the provisions outlined in Section 377, any individual who willingly engages in carnal intercourse deemed “against the order of nature” with a man, woman, or animal is subject to severe penalties. These penalties may include life imprisonment or imprisonment for a term not exceeding ten years, in addition to fines.

It’s crucial to highlight that the term “against the order of nature” remains undefined within the legal framework, leading to ambiguity in interpreting and applying this provision. Consequently, the enforcement of Section 377 has often resulted in the infringement of the fundamental rights of individuals belonging to the LGBTQIA+ community, as their sexual choices have been subjected to legal scrutiny and discrimination.

Despite advancements in legislation, such as the decriminalization of same-sex relationships, certain offenses, including bestiality (sexual intercourse with animals) and child abuse, continue to be punishable under Section 377. This underscores the ongoing challenges and complexities surrounding the legal treatment of sexuality and the protection of LGBTQIA+ rights within the Indian legal system.

  • The core of Section 377 of the Indian Penal Code

Section 377 is deemed a grave offense, thus it is both cognizable and non-bailable. It falls under the jurisdiction of a first-class magistrate’s court for trial.

  1. Constitutional validity of Section 377 IPC

The Constitution of India guarantees fundamental rights to its citizens, a cornerstone of democracy worldwide. In India’s rapid development as a democracy, laws restricting individuals’ personal sexual choices, integral to autonomy over one’s body and freedom of expression, represented a significant violation of these fundamental rights. Penalizing same-sex sexual activity constituted a prima facie infringement of rights protected under Articles 14, 15, 19, and 21 of the Indian Constitution.

Section 377 not only deprived the queer community of equality before the law and freedom of expression but also subjected them to societal discrimination. Furthermore, it clearly encroached upon the right to bodily autonomy as stipulated in Article 21. Consequently, numerous judgments have been rendered on the constitutionality of Section 377 in response to a multitude of petitions filed in high courts nationwide.

  1. History of Pride Movement in India

The LGBTQ struggle in India began in the early 1990s, despite the country gaining independence years earlier. The legacy of British colonial laws left the queer community vulnerable to human rights violations.

A pivotal moment in the movement’s history occurred on August 11, 1992, when the AIDS Bhedbhav Virodhi Andolan (ABVA) organized the first known protest for gay rights in front of Delhi police headquarters. This protest aimed to challenge the arrest of men suspected of homosexuality at Connaught Place’s Central Park, but it did not result in any immediate change.

In 1991, the ABVA released a report titled “less than gay,” documenting the discrimination faced by the LGBTQ community in India.

In 1994, a medical team visited Tihar Jail to investigate an increase in reported incidents of sodomy. ABVA activists advocated for providing contraceptives to prisoners, but Kiran Bedi, then-Inspector General of Prisons, refused. Bedi argued that providing contraception would imply acceptance of homosexuality in Tihar and could encourage the practice. Instead, Tihar instituted measures to combat what Bedi described as the “menace of homosexuality,” including mandatory HIV testing and segregating those who tested positive.

In 1994, ABVA filed a Public Interest Litigation (PIL) in the Delhi High Court challenging the constitutional validity of Section 377, marking one of the first legal challenges against government repression of the LGBTQ community. Siddhartha Gautam, co-founder of ABVA, emerged as India’s first gay rights advocate through this PIL. However, following Gautam’s untimely death, ABVA failed to pursue the petition, resulting in its dismissal in 2001

  • The inaugural Pride Parade in India: an expression of freedom and defiance

In 1999, Kolkata saw the inception of India’s inaugural Gay Pride Parade. With just 15 participants, the Calcutta Rainbow Pride conveyed a long-awaited message to the nation: embracing queerness with pride. During the same period, CALERI (Campaign for Lesbian Rights), based in Delhi, published a manifesto called ‘Lesbian Emergence,’ aiming to spark dialogue about the lives of queer women, who, according to CALERI, were significantly more invisible compared to queer men.

  • Police raid in Lucknow

On July 7, 2001, tensions escalated when Lucknow police conducted a raid in efforts to enforce Section 377, apprehending numerous men suspected of homosexuality in a park. Among them was a healthcare worker affiliated with the Bharosa Trust, leading to a subsequent raid on Bharosa offices where documents were seized and nine additional individuals were arrested. The police also confiscated contraceptives, lubricants, instructional videos, and sex toys.

The Court denied bail to the nine arrested, condemning their work as detrimental to society. It took the Lawyers’ Collective a month to confirm that Bharosa was not involved in illegal activities and to secure the release of the arrested members.

Following the Lucknow incident, the NGO Naz Foundation petitioned the Delhi High Court in 2001 to declare Section 377 unconstitutional, marking the beginning of a protracted legal battle regarding Section 377 and the LGBTQ community’s freedom.

  1. Landmark judgments of Section 377 IPC

Numerous petitions and Public Interest Litigations (PILs) have been filed in courts across the country seeking the decriminalization of Section 377 of the Indian Penal Code. However, understanding the history of litigation surrounding the law criminalizing homosexuality requires a close examination of four landmark judgments.

  • Naz Foundation v. Government of NCT of Delhi (2009)

The case of Naz Foundation v. Government of NCT of Delhi stands as a landmark in Indian legal history, presided over by a bench of two justices from the Delhi High Court. This significant ruling determined that consensual sexual relations between homosexual individuals are not criminal offenses and that the criminalization of such acts infringes upon citizens’ fundamental rights as guaranteed by the Indian Constitution. This decision marked the reversal of a longstanding law that deemed consensual homosexual activities as criminal acts.

  • Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013)

Despite the groundbreaking and progressive nature of the Naz Foundation case, where the Delhi High Court made a historic and libertarian decision, it faced significant criticism across India. In a society where adapting to unexpected changes that challenge traditional “culture and beliefs” can be difficult, the judgment received widespread backlash. This criticism ultimately led to a petition seeking to overturn the ruling in the case of S K Koushal v. Naz Foundation.

  • National Legal Services Authority v. Union of India (2014)

Transgender individuals have historically played significant roles in Indian history and culture, yet they continue to face discrimination solely based on their identity. Until April 15th, 2014, life for transgender individuals in India was marked by immense difficulty. However, on this day, Justices K. S. Radhakrishnan and A. K. Sikri rendered a landmark judgment in the case of National Legal Services Authority v. Union of India, known as the NALSA judgment.

This judgment underscored India’s commitment to gender equality by recognizing transgender individuals, who do not fit into traditional male or female categories, as belonging to a ‘third gender’ category. It affirmed that the rights guaranteed under the Indian Constitution are equally applicable to all individuals, including transgender people. Additionally, it granted transgender individuals the right to choose their gender identity within the third gender category, thereby addressing long-standing grievances related to torture, discrimination, abuse, and violence faced by the transgender community.

  • Navtej Singh Johar v. Union of India (2018)

Following the groundbreaking NALSA judgment, a group of prominent individuals took a stand by petitioning a five-judge bench of the Supreme Court to overturn the ruling in the S K Koushal v. Naz Foundation case. The petitioners included dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. It was evident that India needed to abolish an outdated law that flagrantly violated the fundamental rights of its citizens. Consequently, the case of Navtej Singh Johar v. Union of India became the pivotal moment that finally granted individuals from the LGBT community the basic rights and freedoms they inherently deserved as human beings.

  1. LGBT rights in India : the current status

The LGBT community celebrated a significant victory with the 2018 judgment in the Navtej Singh Johar case, marking the culmination of their decade-long struggle. However, despite this milestone, their rights still lag behind those of heterosexual couples in India. The legal framework concerning LGBT rights requires substantial evolution to ensure equal protection under the law. One fundamental right that remains elusive for the LGBT community is the right to marry, with an ongoing Public Interest Litigation (PIL) addressing this issue in the Delhi High Court.

To further safeguard the rights of transgender individuals, the Transgender Persons (Protection of Rights) Act was enacted in 2019. This legislation aims to recognize transgender identities and prohibit discrimination in various areas such as education, employment, healthcare, property ownership, holding public or private office, and access to public services and benefits. However, the Act has faced considerable opposition from activists due to its shortcomings. Critics argue that the law criminalizes begging by transgender individuals and mandates that transgender individuals under the age of 18 must live with their natal families. Additionally, concerns have been raised regarding the Act’s narrow focus on acknowledging only Hijras and transwomen, with limited or no mention of transgender men, genderqueer individuals, or intersex individuals.

  1. There’s still a long journey ahead

The decriminalization of Section 377 was strongly advocated for by the Indian judiciary. However, it’s disheartening that there was more opposition than support for this decision. Despite legal protection, the LGBT community still faces discrimination in various aspects of life, such as workplaces and educational institutions, becoming a part of their daily struggles. Even the younger generation, expected to be more inclusive, has shown intolerance. Tragically, incidents like the suicide of Arvey Malhotra, a 10th-grade student from Delhi, due to bullying by classmates, highlight the harsh realities they endure. His mother, a teacher at the same school, has been seeking justice for over four months. This is just one of many stories, with numerous cases of forced sex conversion therapy and abuse against lesbians and gays within families.

There’s a pressing need for anti-discrimination laws that hold individuals accountable for prejudicial treatment of LGBTQ+ individuals, ensuring their protection under Article 15 and equal opportunities in the workplace. Although the right to marry is recognized under Article 21 of the Indian Constitution, same-sex couples are still denied this right, along with exclusion from surrogacy and adoption laws that define a ‘couple’ as a man and woman. Arguments against amending these laws to include same-sex couples are baseless, considering India’s history of inclusive legal amendments.

Finally, as citizens, we must exhibit more respectful behavior towards the LGBT community to foster a safer and more inclusive society. Simple gestures like asking for preferred pronouns and using them are meaningful steps towards acceptance and belonging.

  1. Conclusion

The Navtej Singh Johar case and the NALSA judgment represent significant milestones in the journey toward developing and safeguarding the fundamental rights of India’s LGBT community. However, our progress in this regard is far from complete. Treating individuals based solely on their sexual choices as abnormal is inherently unjust, and no one deserves to experience such discrimination. As India continues to make strides in various sectors, including innovation and technology, it is crucial that we also strive to be recognized for our inclusivity.

The principle of “unity in diversity” is a cornerstone of India’s democracy, and it is time for us to embody this principle in reality. Our history, culture, and monuments have all embraced same-sex relationships, so why can’t we as a society do the same? As the youth of our nation, it is incumbent upon us to work towards creating a better society that embraces diversity and treats all individuals with dignity.

It is imperative that we pave the way for future generations to live in a society where basic human rights are not up for debate and where everyone is treated with respect and equality.

  1. References

 

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