RIGHTS OF THE LGBTQ+ COMMUNITY IN INDIA

LGBT stands for Lesbian, Gay, Bisexual and Transgender. The “LGB” in this term alludes to sexual direction. Sexual direction is characterized as a regularly suffering example of enthusiastic, sentimental and additionally sexual attractions of men to ladies or ladies to men (hetero), of ladies to ladies or men to men (gay), or by men or ladies to both genders (androgynous). It additionally alludes to a person’s feeling of individual and social personality dependent on those attractions, related practices and enrolment in a network of other people who share those attractions and practices. A few people who have same-sex attractions or connections may distinguish as “eccentric,” or, for a scope of individual, social or political reasons, may decide not to self-relate to these or any marks. 

The “T” in LGBT represents transsexual or sexual orientation which is non-adjusting, and is an umbrella term for individuals whose sex character or sex articulation does not adjust to that regularly connected with the sex to which they were allotted during childbirth. Some who don’t distinguish as either male or female incline toward the expression “genderqueer.” While it is imperative to comprehend that sexual direction and sex character are not something very similar, the two of them do reflect contrasting types of sex standard offense and offer an entwined social and political history 

Queer: Originally utilized as a derisive slur, eccentric has now become an umbrella term to depict the bunch ways individuals reject two-fold classes of sex and sexual direction to communicate what their identity is. Individuals who recognize as eccentric grasp characters and sexual directions outside of standard hetero and sex standards.

Section 377 of the Indian Penal Code, 1860 

S.377- Unnatural Offences: – 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 10 years, and shall also be liable to fine. Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offense describe in this section.

Section 377 of the Indian Penal Code, 1860 was used to restrain and punish for having any type of intercourse that was considered “against the order of nature”. The aforementioned section was held unconstitutional and was struck down by a five-judge bench in Navtej Singh Johar v. Union of India, since it was violative of various fundamental Rights provided under Articles 14, 15,16, 19 and 21 of the Constitution of India, 1950.

‘Right to equality’ under Article 14 and ‘Right to life and liberty’ under Article 21 of the Constitution has been guaranteed to every person unlike the other fundamental rights, which are guaranteed to only the citizens of India. The Preamble of the Constitution clearly starts with-“WE THE PEOPLE OF INDIA….. AND TO SECURE TO ALL ITS CITIZENS” Here the people are not defined anywhere, but it is to be considered that people are citizens. Preamble talks about the Justice, Liberty, Equality and Fraternity to all its citizens.

The LGBT community have been deprived of their Fundamental Rights for a long time, and their Right to Live with Dignity was considered as one of the most important fundamental right, along-with other rights.

Landmark Judgements 

Suresh Kumar Kaushal Vs. NAZ Foundation, 2013 

It was held that Right to privacy cannot get extended to that extent wherein one can commit an offence. Hence, Right to Privacy does not cover homosexual acts.

NALSA vs. Union of India and Ors. (2014) 

It was held that under Art. 14, right of each individual is secured whether it is women, men or transgender. Art. 15 and Art. 16 restrict sexual orientation-based separation. So in the event that on the ground of sexual direction, segregation is done, at that point it is violative of Art.s 15 and 16. Article19; wherein security, sexual orientation character and uprightness all are ensured inside the ambit of Art. 19(1)(a). In this manner this contention in a roundabout way included Sec. 377 I.P.C. Further, SC continued regarding Art. 21 and said that option to live with pride incorporates option to pick sex character. Because of this case, self-personality and sexual orientation character got legitimate acknowledgment i.e. self-identity and gender identity got legal recognition.

Puttaswamy Case- Justice K.S. Puttaswamy vs. Union Of India, 2017

In this case, Justice DY Chandrachud held that the Supreme Court has the duty to redress the slip-up done in the Suresh Kaushal’s case and mentioned that sexual orientation is an important attribute of privacy and this attribute is protected within various rights under Part III of the Constitution of India such as Article 14, Article 15, and Article 21.

Navtej Singh Johar vs. Union Of India

This was the most celebrated judgments in the history of justice and this was the case that partially declared Section 377 of the Indian Penal Code, 1860 as unconstitutional.

Justice DY Chandrachud had applied a similar rationale as applied in Puttaswamy Case in the present case. Supreme Court said that condemning two consenting grown-ups’ sexual act simply because they are gay, is neither a substantial comprehensible differentia nor has any sound nexus. Such conventional standards are completely founded on vague and emotional test like profound quality. In the conflict of Article 15, Supreme Court observed that in the NAZ Foundation case, the methodology of Delhi HC (for example sex incorporates natural and sexual direction) was the right methodology and this methodology mirrors our improved comprehension. Supporting Article 19, Justice Chandrachud said that we cannot barely characterize human sexuality. Discrimination against the LGBT community is not allowed under the Constitution. Article 19 protects every person’s right to express his own identity freely. Finally, in support of Art. 21, Supreme Court held that right to life and liberty includes privacy, dignity and autonomy. However, these rights can be curtailed by putting reasonable restrictions but Section 377 cannot be used to deny people from enjoying these rights.

RECOMMENDATIONS/ SUGGESTIONS

The community needs preferential compensatory treatment so that they get better opportunities to start in all fields of life thus enjoying the fruits of reservation in educational institutions, employment in as much as that equality, life, liberty and dignity become meaningful.

This is possible only if the people of India, start realizing or caring to realize the trauma, agony and pain which the members of the LGBTQ+ community undergo or start appreciating their innate feelings and change their mind-set by bringing such class of citizenry within the fold of ‘We the People of India’ functionally. 

CONCLUSION

“Not only must Justice be done; it must also be seen to be done.”

From the above cases we can state that our Indian Judiciary have been moving towards the achievement of the said phrase gradually.

While giving Judgement Judges had considered the conceptions of ‘Justice as Fairness’ combined with ‘Distributive Justice’ in granting due recognition to them.

Hence, all fundamental rights given to citizen are granted to LGBTQ+ Community by our Judiciary system and by treating this community as socially and educationally backward classes of society and making special provision, by law, would help for the advancement of the community.

From above study, we can conclude that LGBTQ+ Community is getting its place in society to live with personal liberty and dignity. Now, our Indian society should start accepting them and treat them equally and with dignity.

REFERENCES

1. http://kenyalaw.org/caselaw/cases/view/104234/
2. http://ljbtq.blogspot.com/2014/04/supreme-court-recognizes-transgender.html
3. http://www.desikanoon.co.in/2014/04/supreme-court-on-transgenders-final.html
4. http://www.gaylaxymag.com/articles/current-affairs/scs-judgement-on-transgender-rights-what-it-exactly-says/
5. http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1114
6. https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India
7. https://en.wikipedia.org/wiki/R_v_Sussex_Justices,_ex_parte_McCarthy
8. https://iksa.in/gs1/supreme-court-recognises-transgenders-third-gender/923/
9. https://timesofindia.indiatimes.com/india/sc-verdict-on-section-377-all-you-need-to-know/articleshow/65695884.cms
10. https://www.apa.org/topics/lgbt
11. https://www.gktoday.in/gk/constitution-93rd-amendment-act-2006/
12. https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
13. https://www.lawyersclubindia.com/forum/article-19-206813.asp
14. https://www.scribd.com/document/459662117/Constitutional-and-Legal-Status-of-Trans