Objective

The objective of this research paper is to analyze and chronicle the progression of LGBTQ+ rights in India, examining the legal developments and societal shifts that have shaped the journey towards equality. Through an in-depth exploration of landmark court cases, and the impact of activism, this study aims to provide a comprehensive understanding of the evolution of LGBTQ+ rights in India. By examining the challenges faced, the victories achieved, and the ongoing struggles, this research paper seeks to contribute to the broader discourse on human rights, social justice, and the pursuit of equality for all individuals, regardless of their sexual orientation or gender identity.

Abstract:

In Western countries, same-sex relationships are often regarded as prevalent, but this perspective is misleading, as such relationships have existed in Indian society for ages. Interestingly, it was homophobia that was imported from the West, not homosexuality itself. The issue of homosexuality in India remains controversial, primarily due to the various presence and practices of various religions. Open discussions about homosexuality are rare in Indian society, and sexuality, in general, is seldom openly addressed. Homosexuality sometimes referred to as the third sex, holds an uncertain legal and social status in India. While there are public protests against the oppression of homosexuals, a significant portion of society still looks down upon them. Treating homosexual individuals differently solely based on their sexual orientation is unethical, as it disregards the fact that their contributions to the community are not dependent on their sexual preferences. Just as the constitution provides minority rights based on religion, it should also protect individuals based on their sexual orientation. Homosexual people are not inherently incapable of making valuable contributions to society, and many possess degrees and intellectual capabilities. LGBTQ+ individuals deserve the same rights and respect as any other member of the community. This paper aims to examine the definition of homosexuality, its historical background, its prevalence in India, the situation faced by homosexual individuals, personal laws, same-sex marriage, and the evolving legal status, including judgments rendered by the Supreme Court and other judicial bodies over time.

Keywords: Homosexuality, Social status, Society, Public discussion

· Introduction:

Homosexuality refers to individuals who experience sexual, emotional, and physical attraction to individuals of the same sex. Gay, lesbian, bisexual, transgender, and queer are commonly used terms to describe such individuals, and they are collectively represented by the acronym LGBTQ+. This sexual orientation stands in contrast to “heterosexuality,” which is the attraction to individuals of the opposite sex and is commonly referred to as being “straight.” Homosexuality encompasses a range of experiences, including romantic or sexual attraction and activity with individuals of the same sex. The term “homosexuals” originated in the late nineteenth century, initially carrying a biological connotation that has since evolved.

Now, the question arises: what do various terms associated with individuals who are attracted to the same sex, such as gay, lesbian, bisexual, transgender, and queer, mean? How do individuals come to realize that they identify with one of these terms? Let’s start with the term “gay,” which refers to a man who is attracted to another man. Similarly, the term “lesbian” denotes a woman who is attracted to another woman. The term “bisexual” encompasses individuals who are attracted to both males and females, with the level of attraction not necessarily being equal or simultaneous. Another term falling under the umbrella of homosexuality is “transgender,” which applies to people whose gender identity does not align with societal expectations or their assigned sex at birth. It is also used as an inclusive term that encompasses individuals such as cross dressers, genderqueer people, transwomen, and transmen.

The most recent addition to these terms is “queer.” According to linguist Gregory Coles, this term can be interpreted as both derogatory and honorary. It is used to describe individuals who have not yet confirmed their gender and sexual identity. Moving on to the second part of the question, how do individuals come to know if they fit into the LGBTQ category? The simple answer lies in the development of attraction, which forms the foundation of adult sexual orientation and typically emerges during early childhood or adolescence.

Brief History And Prevalence In India: 

Homosexuality is not a recent occurrence but has deep roots in history. Evidence of same-sex love can be found in Hindu Mythology and various literary works derived from Hindu, Buddhist, Muslim, and modern fiction. Ancient texts like the Manu Smriti, Arthashastra, Kamasutra, Upanishads, and Puranas delve into the realm of sexual practices. The Rigveda, a sacred Hindu text, even mentions the phrase ‘Vikriti Evam Prakriti,’ implying that what may appear unnatural is actually natural. During Muslim rule, same-sex relationships became more prevalent, despite legal prohibitions, with even the Delhi sultans engaging in such relationships. In addition to literary evidence, visual depictions of sexual practices exist throughout India in the form of art, paintings, and sculptures.

One remarkable account of this can be found within the temples of Khajuraho. Built by the Chandela dynasty between 950 and 1050 AD, the sculptures in the Khajuraho temples depict men engaging in intimate acts with other men. Scholars and historians interpret these sculptures as an acknowledgment of same-sex love and sexual practices during that era. These sculptures proudly represent the diverse sexuality of men, women, and the third gender. Similarly, the Sun temple in Konark, also known as Surya Devalaya, dating back to the 13th century in Odisha, displays similar imagery. This temple, dedicated to the Hindu Sun god, features sculptures showcasing explicit scenes from the Kamasutra. Temples in Puri and Tanjore also depict vivid images of queer couples. These visual records contradict any belief that suggests the absence of sexual practices within Indian culture.

Furthermore, these representations of gender identity were highly remarkable to the British colonizers, who sought to regulate such bold expressions of gender. As a result, the colonizers influenced India’s perception of gender beyond merely proscribing “deviant” sexual practices. Among other things, they also imposed their own ethical framework on India. During British rule, sexual activities considered “against the order of nature,” including homosexual acts, were criminalized under Section 377 of the Indian Penal Code. This section, which came into effect in 1861, states that anyone who willingly engages in carnal intercourse deemed “against the order of nature” with a man, woman, or animal shall be punished with either life imprisonment or imprisonment for up to ten years, along with a fine. It should be noted that even though this social control persisted until 2009, the Delhi High Court, in the case of Naz Foundation v Government of NCT of Delhi, declared Section 377 unconstitutional, citing violations of Articles 14 and 15 of the Indian Constitution.

Estimating the prevalence of homosexuality poses challenges due to factors such as associated stigma, social repression, the use of atypical survey samples, and the difficulty in distinguishing desire, behaviour, and identity. Figures regarding homosexuality vary among different age groups, regions, and cultures. Presently, same-sex marriage is legally recognized and performed, either nationwide or in specific regions, in several countries, including Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States, and Uruguay.

In India, according to Ipsos, 3% of the population identifies as homosexual (including gay and lesbian), 9% identify as bisexual, 1% identify as pansexual, and 2% identify as asexual. Additionally, 56% of urban Indians report that their views on sexuality have changed compared to five years ago. Despite ongoing debates and conflicts surrounding medication and therapy, it is increasingly recognized that homosexual orientation is a natural variation of human sexuality, encompassing physiological, psychological, and emotional aspects. Therefore, there is a need for the Indian government to take a clear stance on addressing the prevailing prejudices in society.

Condition Of Homosexual People: 

The perception of homosexuality and the societal view differ significantly due to the prevailing taboo that associates gays or homosexuals with impurity, immorality, and threats to society. Traditional beliefs hold that marriage is a sacred union between individuals of opposite sexes, resulting in ill-treatment and social exclusion for those who identify as LGBTQ+. However, there is a growing number of people, particularly among the younger generation (Gen Z), who do not view homosexuality as a negative influence on society. Instead, they appreciate and normalize LGBTQ+ individuals, ensuring that those who gather the courage to come out do not feel different from others. This shift is more apparent in developed urban areas where people tend to be more open-minded, primarily due to differences in education quality and the values imparted during childhood. Encouragingly, various judgments by the Supreme Court and other courts offer hope for changing and evolving perspectives in Indian society. These rulings indicate that discussions around natural processes like sexual orientation, which individuals are born with and have no control over, should not be a focal point. Instead, other pressing social issues such as poverty, unemployment, and economic conditions require special attention from the population.

Although Indian youth today may be more accepting of homosexual and queer identities than ever before, LGBTQ+ individuals still face persistent struggles in terms of acceptance within their families, homes, and educational institutions. While urban areas, influenced by social media and corporate initiatives, have made progress in raising awareness of LGBTQ+ rights, the situation remains more challenging for transgender individuals and lesbian women. Although urban LGBTQ+ voices are heard through various online and offline platforms, providing valuable insights for LGBTQ+ policies, these experiences represent only a fraction of the diverse challenges faced by the community. Families in rural India have their own methods of dealing with LGBTQ+ individuals, which can range from planning secret honor killings to forcing young homosexuals to flee to cities at night without financial or social support. In other instances, lesbian women are subjected to corrective rapes sanctioned by their own family members.

The Consequences Of Coming Out: 

According to a recent study, one of the significant contributors to the stigmatization of LGBTQ+ individuals is the way parents react to their sexuality. The study further suggests that most LGBTQ+ individuals would be accepted by their families as long as they conform to heterosexual norms and behaviours. Unfortunately, numerous LGBTQ+ individuals continue to face significant challenges each year, including violence, discrimination, and poverty, which can have a traumatic impact on their lives.

Problems Faced:

Even in today’s society, homosexuals continue to face a lack of dignity and respect. It is disheartening to see that they are deprived of the very principles and ideals that were championed during the French Revolution in the 18th century. They endure ongoing harassment from various facets of society, including political and economic spheres. Unfortunately, matters worse when they experience mistreatment from their own families, which should ideally be a source of safety and support. This section aims to address the challenges faced by homosexuals in society.

• The first major issue is marginalization and social exclusion. In a world that claims to uphold the values of equality, it is distressing to observe that homosexual individuals are still marginalized and undervalued. They face limited opportunities, lower self-esteem, and reduced confidence when it comes to interacting with society. Social policies designed for equal welfare often fail to reach them, or they encounter barriers that restrict their access to such policies. This marginalization deprives them of basic necessities such as healthcare, education, housing, and income. Additionally, they must navigate through challenges like racism, sexism, poverty, and other intersecting factors that, along with prejudice and transphobia, have detrimental effects on their mental well-being. Marginalization and social exclusion prevent them from accessing essential services and contribute to their exclusion from their own families. The lack of support and marginalization have pushed some individuals into engaging in criminal activities, and they are also at a higher risk of health issues like HIV/AIDS. These obstacles arise from societal attitudes towards their sexual orientation.
• The second challenge they face pertains to socioeconomic issues. Homosexual individuals tend to earn less than their heterosexual counterparts and experience higher levels of workplace discrimination. This often leads to job loss and subsequent struggles with poverty. In India, for instance, a report indicates that 64% of homosexuals earn less than Rupees 100 per day.
• Youth-specific issues further compound the challenges faced by homosexuals. The disparities between homosexuals and heterosexuals have a particularly negative impact on young homosexuals. A significant number of LGBTQ+ youth encounter problems such as poverty, exclusion from family and social circles, and more. Numerous studies have been conducted to shed light on these issues. For example, a study conducted in nearly 82,000 high schools in Minnesota revealed that homosexual youths are more vulnerable to bullying and constant abuse compared to their peers.

In India, homosexual youth confront additional challenges, including early school dropout rates, lack of job security, lack of family support, and susceptibility to drug addiction. They are also at a higher risk of falling victim to human trafficking and coerced into engaging in solicitation. These youth are often unaware of their rights and statistics indicate that 52% of LGBTQ+ youth do not receive support from their families. Furthermore, educational institutions in India do not provide a gender-neutral environment for these youths. The 2018 United Nations agency report highlights the prevalence of bullying and discrimination against LGBTQ+ youth in schools and colleges. Such acts of bullying and discrimination leave lasting scars on their lives, often taking years to overcome.

Alternative common issues faced:

Victims of Violence – A survey conducted by the Swasti health resource centre in 2018 revealed that 52% of gay individuals in Indian society experience violence. The survey found that more than half of the men facing physical violence (52.4%), sexual abuse (55%), and emotional torment (46.5%) still live with their parents and mostly remain in the closet. According to the United Nations General Assembly Special Session on HIV/AIDS Report, the HIV prevalence rate among this group in the country is 14.5%, as stated in a 2011 working paper by the Global Commission on Law and HIV. Disturbingly, the survey also discovered that men who face violence are highly unlikely (41.3%) to report physical abuse, less likely (39.8%) to report sexual abuse, and least likely (32.4%) to report emotional abuse.

 Legal Injustice – Many countries have failed to establish laws that protect homosexual individuals, resulting in unsatisfactory experiences with legal services. They face discrimination when trying to lodge complaints at police stations, and in many cases, the existing laws do not provide them with the necessary support. As a result, the current judicial systems often struggle to deliver justice, leaving homosexual individuals vulnerable to legal scrutiny and prejudice.

Legal Status:

Legal Status of Homosexuals in India is governed by Section 377 of the Indian Penal Code (1860), which deals with Unnatural Offences and encompasses homosexuality. This law, derived from the British penal code of the 19th century, holds significant implications for the LGBTQ+ community. Section 377 specifically states: “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.“

Additionally, homosexuality can be interpreted under other sections of the Indian Penal Code. Section 292, which pertains to obscenity, provides sufficient grounds for including homosexuality within its scope. Furthermore, section 294 of the Indian Penal Code, which penalizes “obscene behaviour in public,” is often employed to target gay men. It is noteworthy that in England, the country of origin of this law, the offense of homosexuality between consenting partners has been abolished by the Sexual Offences Act 1967. However, in India, the element of consent is deemed irrelevant when it comes to constituting an offense under Section 377.

Therefore, in India, it is primarily Section 377 that defines and criminalizes unnatural offenses, rendering homosexuality illegal and punishable by life imprisonment or imprisonment for up to ten years, along with a fine.

The offense described in this section is labelled as an unnatural offense, and the term “carnal intercourse” used within this provision specifically refers to sexual relations between men, commonly known as a homosexual relationship. It is important to note that in India, homosexual relationships are still not widely accepted. However, after a lengthy period of anticipation, the Delhi High Court made a significant ruling (Naz Foundation v Govt. of NCT Delhi) declaring Section 377 of the Indian Penal Code unconstitutional.

The constitutionality of Section 377 of the Indian Penal Code was challenged on the grounds that it violated the fundamental rights protected under the Indian Constitution. The Delhi High Court emphasized that the rights of individuals should not be trampled upon simply because there is societal opposition to a particular issue. It is a testament to the strength of democracy that individuals can raise their voices even when faced with opposition. LGBTQ+ activists have now begun their protests in support of decriminalizing consensual same-sex relations.

Section 377 had faced opposition multiple times in the past due to its highly arbitrary nature. The provision directly infringed upon the fundamental rights enshrined in the Indian Constitution, specifically Articles 14 and 21. This served as the primary basis for its opposition. Additionally, Article 19, protecting the freedom of speech and expression, was invoked to highlight its violation against homosexuals. Thus, it can be argued that Section 377 violated the principles of the golden triangle. Another ground for opposition was that it went against the preamble of the Constitution, which upholds the dignity of the individual and implies that homosexuals are valued less than others. Furthermore, the provision was found to be in conflict with international laws. As a result, numerous petitions were filed in the courts, and the journey for the homosexual community involved many challenges, but ultimately justice prevailed and the section was declared unconstitutional.

Landmark Judgements:

Naz Judgement 2009

The case of Naz Foundation v Government of NCT of Delhi marked the first instance in India where the constitutionality of Section 377 of the Indian Penal Code was challenged. In its judgment, the Delhi High Court declared Section 377 unconstitutional and struck it down. The court’s rationale for striking it down was that the provision violated the constitutional provisions, specifically Articles 14 and 15.

The year 2013 was a challenging time for human rights in India, including LGBTQ+ rights, primarily due to the Supreme Court’s ruling in Suresh Kumar Koushal v Union of India, which re-criminalized homosexuality. However, the darkness was short-lived as the Supreme Court delivered the landmark judgment in the case of National Legal Services Authority vs Union of India or NALSA. This ground-breaking ruling recognized transgender individuals as citizens of the country, affirmed their fundamental rights, and acknowledged them as the Third Gender. The NALSA case remains a pivotal moment for transgender rights, as the court provided comprehensive guidelines that every state must adhere to in order to integrate transgender individuals into public spheres and address the marginalization they face.

Puttaswamy Judgement, 2017

The case of K.S. Puttaswamy and Another v Union of India and Other, commonly referred to as the Puttaswamy judgment, holds significant importance as it establishes the right to Privacy as an integral right. Article 21 of the Constitution of India guarantees the Right to Life and Liberty, which has been interpreted to include the Right to Privacy. This right to Privacy extends to every individual irrespective of their gender and sex. By recognizing privacy as an inherent right, the judgment affirms the autonomy and protection of LGBTQ+ individuals, safeguarding their freedom to choose their partners. Therefore, this judgment, along with the NALSA judgment, served as a foundation for the subsequent decriminalization of Section 377 in 2018.

Navtej Johar, 2018

Navtej Singh Johar and others v Union of India is a landmark judgment that brought about the decriminalization of consensual same-sex relationships in India. This judgment, delivered by the Supreme Court of India, was a culmination of multiple Public Interest Litigations filed by members of the LGBTQ+ community.

The Court struck down Section 377 to the extent that it criminalized consensual same-sex relationships. It, however, upheld the provision that criminalizes non-consensual acts involving children or animals. The Supreme Court determined that Section 377 violates Article 14, 15, and 19(1) (a) of the Constitution of India. It recognized that every individual, regardless of their sexual orientation or identity, has the right to live with dignity, autonomy, and personal freedom without interference from the State.

Arun Kumar Judgement, 2019

Arun Kumar v Inspector General of Registration, Tamil Nadu is a significant case heard in the Madras court that extends the definition of brides to include transwomen. According to the Hindu Marriage Act of 1955, the definition of marriage only recognizes unions between men and women. However, this judgment expands the scope of women to encompass transgender individuals who identify as women and wish to marry. It aligns with the principle of self-identification established in the NALSA judgment, which allows individuals to identify themselves without external verification. This judgment recognizes the constitutional right of a person to identify as a transwoman and paves the way for marriages within the LGBTQ+ community, thereby expanding the right to marry.

Personal Laws And Same-Sex Marriages:

The spiritual stance on same-sex marriages in India can be summarized as follows:

Hinduism:The followers of Hinduism hold varying views on same-sex relationships. However, there is sufficient literature available that addresses same-sex relationships and recognizes the possibility of same-sex marriages.

Islam:Islamic sharia law, derived from the Quran and the life of Muhammad, clearly considers homosexuality a punishable offense. This view is consistent across all four primary schools of Sunni jurisprudence. Muhammad himself expressed condemnation toward effeminate men and masculine women, stating that they should be cursed and expelled from their homes.

Christianity:Within Christianity, there is some confusion regarding the treatment of homosexuality, whether it should be considered a crime or if the behaviour should be corrected. In either case, the prevailing position is that homosexuality is condemned in Christianity.

Parsis:In Zoroastrianism (Parsi religion), homosexuality is considered morally wrong and strongly discouraged. However, some followers support LGBT+ individuals and believe that a more inclusive interpretation aligns better with the fundamental principle of “good thought, good word, and good deed.”

Jainism and Buddhism: In Jainism, all forms of sexual activity that are not aimed at reproduction are discouraged. This means that besides homosexuality, even celibacy, heterosexual sex for pleasure, or casual sex are not allowed. In Buddhism, it is stated that as long as sexual activity is consensual, based on love, and does not harm anyone, including homosexual sex, it is permissible.

Sikhism: Sikhism does not hold any same-sex marriages in their Gurudwaras (Sikh temples) since the spiritual texts remain silent on this matter.

The significance of discussing the religious standing of same-sex marriages is an essential prerequisite before drafting any policy or law on same-sex marriages. Therefore, any amendments in the personal laws regarding LGBTQ+ cannot be a practical solution to the status quo.

Conclusion:

In conclusion, it is evident that the journey for homosexual individuals to attain their rights has been a long and arduous one. Despite court interventions, suitable legislation is still lacking. It is crucial for the government to prioritize the needs of the LGBTQ+ community and take steps to address their concerns. Additionally, society must strive to create an inclusive and accepting environment where homosexual individuals can feel comfortable and respected. Recognizing their inherent rights and providing legal backing to ensure their protection should be a priority. This can only be achieved when they have proper representation in the law-making process. It is imperative for both the government and society to work together towards achieving equality and justice for all individuals, regardless of their sexual orientation.

List Of Cases Cited:

• Naz Foundation v Govt. of NCT Delhi 2009 SCC Online Del 1762
• Suresh Kumar Koushal v Union of India AIR 2014 SC 563
• KS Puttaswamy & Anr v Union of India & Ors 2017 SCC Online SC 996
• Navtej Singh Johar & Ors v Union of India 2018 SCC Online SC 1350
• Arun Kumar v Inspector General of Registration AIR 2019 MAD 265

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•  Sandeep Roy Chowdhury, ‘The best of both worlds? South Asian bisexuals speak out,’ (February 1996) India Currents
•  Constitution of India, art. 14
•  Constitution of India, art. 15
•  Indian Penal Code 1860, s 377
•  Indian Penal Code 1860, s 292
•  Indian Penal Code 1860, s 294
•  Sexual Offences Act 1967, s 60
•  Naz Foundation v Govt of NCT Delhi 2009 SCC Online Del 1762
•  ibid
•  Indian Penal Code 1860, s 377
•  Suresh Kumar Koushal v Union of India AIR 2014 SC 563
•  KS Puttuswamy & Anr v Union of India & Ors 2017 SCC Online SC 996
•  Navtej Singh Johar & Ors v Union of India 2018 SCC Online SC 1350
•  Constitution of India, art. 19(1)(a)
•  Arun kumar v Inspector General of Registration AIR 2019 MAD 265