By Anshuman Srivastava

INTRODUCTION

The LGBT community in India[1] has always been a major issue to debate upon. It has seen various ups and downs in the past decade. It is considered a taboo in the Indian society as many people hesitate to discuss upon the topic. Most of the rural population (who has a conservative mindset) is totally against the community and it would take years for the rural population to get acclimatized with the community. But the situation is quite different in the big cities as they are much more tolerant towards the community. It shows that there is a mixed opinion on this issue. Hence, the essay tries to communicate, how the LGBT community in India (because of the various judicial pronouncements) were given certain advantages which led to the upliftment of the community.

  1. Brief Idea about the LGBT Community

Lesbian, Gay, Bisexual, and Transgender (LGBT), have a totally different mindset towards their sexual preferences and personal identity. Sometimes, LGBT is also known as LGBTQ (Q represents ‘Queer’). A brief understanding of LGBTQ is as follows:-

  1. Lesbian- Those females who are sexually or emotionally attracted to other females are known as Lesbian[2]. The word Lesbian comes from the island of lesbos (situated in Greece, the abode of poet Sappho), who expressed attraction towards women in her poetic arts.
  2. Gay- The term in a broadway refers to the set of people who are sexually attracted to the same sex. The original meaning of the term is happy, cheerful, or excited. As time passed, the term was adopted by homosexual men. Among the LGBT groups, Gays[3] are much more in number (around two point five million in India).
  3. Bisexual- There are people[4] who are attracted to the same sex. Then there are those who are heterosexual (attracted to the opposite sex). And then comes, those who are sexually attracted to both male and female. They are also called as ‘pansexual’ or ‘ambisexual’.
  4. Transgender- This category represents those people who persist totally different characteristics in comparison with their defined sex. Some transgenders [5] express their characteristics by their clothes, personality, and habits and some use surgical methods to change themselves.
  5. Queer- It is a kind of umbrella term[6] which tells about the homosexual minorities. The theoretical meaning of this term is ‘unusual’ or ‘strange’. This term represents a class different from LGBT but has characteristics similar to it.
  1. Historical Background of the LGBT Community of India

There are many proves[7] which confirm the existence of the LGBT community in ancient and medieval India. Like, in a report published by the Gay and Lesbian Vaishnava Association (GALVA) it mentions that around 3102 B.C (the Vedic period) homosexuality was known as ‘TRITIYA PRAKRITI’ whose literal meaning is third nature. Mughal emperor ‘Babur’ was also attracted to a boy named ‘Baburi’. Then there is a festival known as ‘KOOVAGAM’ which dates back to 3rd century B.C and it is the largest gathering of the transgender people in India. The ‘Khajuraho’ temple located at Madhya Pradesh which is famous for its sculptures also showcases some sculptures based on homosexual activities.

There are also instances of homosexual activities in Indian chronicles and stories like in Valmiki Ramayana, Hanuman saw Rakshasa women kissing those women who are kissed by Ravana. In Padma Purana, there is a story of two girls having intercourse (in which one is acting as a man and other as a woman). In Manusmriti, punishments are designated for homosexual men and women like for example if a girl has sex with another girl she would have to pay a fine of 200 coins and ten whiplashes and if a woman has sexual relations with a girl as a punishment her head would be shaved and her any two fingers would be cut off. In Kautliyas Arthshastra, the king is duty-bound to punish those who indulge in homosexual activities.

  1. Development of the LGBT Community in India

In the olden days, the LGBT community in India always looked down upon (as the community had different sexual preferences). They were suppressed in every way possible, whether it is economically or socially. People ignored them, there were no employment opportunities for them, they were unnecessarily arrested e and harmed and the list goes on. But this mentality has changed a lot after the mid-twentieth century. Some of the instances[8] that would highlight this are as follows-:

  1. In 1981, there was a conference held at Agra named as All India Hijra Conference in which around 50,000 members of the community were gathered.
  2. In 1993, an Anthology named as ‘Lotus of another Color’ written by Rakesh Ratti was published. It was based on South Asian Gay and Lesbian experiences.
  3. Activist Gita Thadani established a Lesbian resource center known as ‘SAKHI’ which helped in creating a nationwide link between the Queer women.
  4. In 2001, there was a major protest conducted at Mumbai by the LGBTQ community against section 377 of the IPC which can be said as a new beginning in the fight for LGBTQ rights.
  5. In 2001, a historical event took place in the history of LGBT community of India. A Transgender named as Gauri Sawant adopted a girl named as Gayatri (she was an orphaned child of a prostitute).
  6. In 2004, a campaign was organized named as ‘Million Voices Campaign’ which gathered one million messages against section 377 of the IPC. This conference ignited a new rage in the LGBT community against its fight for equal rights.
  7. In 2006, Humsafar Trust situated at Goa began organizing homosexual marriages in the state. These marriages were not legal but gave the LGBT community a new dimension of existence.
  1. Evolution in the Thought Process of the Indian Government and the Judiciary

The beginning of the twenty-first century saw increased pressure on the Indian Government and the Judiciary on the viewpoint of LGBT rights. The initial stand of both, the pillars of the Indian democracy was totally against the opinion of the LGBT community. The following timeline would help us to understand the process of evolution on the issue:-

  1. The original stand of Government- In the year 2003, a statement was released by the Indian government on the issue of decriminalizing homosexuality which mentioned- ‘open the floodgates of delinquent behaviour’.
  2. Naz Foundation vs Government of NCT of Delhi- The first lawsuit against section 377[9] (whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term extend to ten years, and shall also be liable to fine) of the IPC was filed in 1994 by AIDS Bhedbhav Virodhi Andolan. The second suit was filed by the Naz Foundation Trust (an NGO) in 2001 at Delhi High Court. But the suit was rejected by the Delhi High Court on the argument that the claimants had no ‘Locus Standi’ on the issue. But the Supreme Court revert back the case[10] to Delhi High Court as the petitioners had the right to file the petition. And, then after there was an increase in the number of petitions over this issue. Hence on July 2, 2009, a divisional bench of the Delhi High Court held that section 377 of the IPC or any such legislation is against the fundamental right provided in the constitution of India.
  3. Change in opinion- On February 28, 2012, there was a statement issued by the central government which stated that- ‘Decriminalizing Homosexuality was not a bad decision’.
  4. Suresh Kumar Koushal and another vs Naz Foundation and others- The Supreme Court of India on December 11, 2013, came up with the decision[11] that superseded the Delhi High Court Judgement (on Naz Foundation, 2009) which decriminalized homosexuality. This led to unnecessary arrests of the peoples coming from the LGBT community.
  5. After-effects of the Suresh Kumar Judgement- The decision of the Supreme Court led to the filing of several petitions by the central government and various other LGBTQ NGO’s. This helped in bringing the Supreme Court to an opinion (by August 2017) that private rights and fundamental rights both are necessary for an individual (whether he or she is straight or not). And by January 2018 Supreme Court was ready to put up the question of decriminalizing section 377 of the IPC in front of a large bench of the court.
  6. Navtej Singh Johar & Ors vs Union of India the Secretary Ministry of Law and Justice- On September 6, 2018, the Supreme Court of India in the case of Navtej Singh Johar vs Union of India (held by a five-judge bench) gave a historic verdict, i.e. it decriminalized any kind of consensual homosexual intercourse (putting an end to section 377 of the IPC, a colonial law). A writ petition was filed by five people of the LGBT community on April 27, 2016, namely- Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, Keshav Suri, and Ayesha Kapur. They said that section 377 of the IPC was infringing their Fundamental Right to dignity, identity, and privacy and rights covered under Article twenty-one of the Indian constitution and their petition has varied and different reasons in comparison to the rejected curative petition in the Suresh Koushal case. On June 29, 2016, Justice S.A Bodbe and A.K. Bhushan transferred the case[12] to Justice Dipak Misra. And on seventeenth January the case started to be heard by a five-judge bench of Supreme Court of India.
  7. After-effects of the Johar Judgement- Different political parties reacted in different ways. Like, there was no official statement by BJP but different politicians of the party supported the verdict. Most of the NGOs and LGBTQ activists were very happy with the decision. A major question that was highlighted was of ‘Constitutional morality’ in which the Supreme Court said that- ‘It is the duty of the constitution to change the society with time to time and remove the ancient evils and orthodox notions. Thus, if social morality is with the heterosexuals, the constitutional morality[13] should come for rescue of the homosexuals.
  1. CONCLUSION

LGBT refers to the class of people which show totally different characteristics as compared to any normal human being, as they are not straight (or homosexuals). Because of this reason they are always treated with hostility and hatred. The same thing happens in India, which results in the complete humiliation of the community. This kind of thought process is very harmful to any society and one should totally boycott this ideology and try to accept them as much as possible. With progress in time, things are changing for the community and with increased support of the Indian Judiciary and government, there are hopes that things would get much better for the community in the coming days.

(Author is a student of the penultimate year at Faculty of Law, Jamia Millia Islamia)

KEYWORDS

  1. Homosexual
  2. Decriminalization
  3. Constitutional morality
  4. Carnal intercourse
  5. Queer
  6. LGBT community

[1] Samsha’s Ncadai, Wha is the meaning of LGBT?, Mental Help.net.

https://www.mentalhelp.net/articles/what-is-the-meaning-of-lgbt/

 

[2] Don’t use your real name, Top Definition Lesbian, Urban Dictionary (In Press, May 2018).

https://www.urbandictionary.com/define.php?term=Lesbian

[3] What Does “Gay” mean?, Welcoming School.

http://www.welcomingschools.org/pages/what-does-gay-mean/

[4] Michael szymanski & Nicole kristal, The Bisexual Guide 64 (2006).

[5] Trans and Gender Nonconforming identities, Planned parenthood.

https://www.plannedparenthood.org/

[6] Lori Grisham, What does the Q in LGBTQ stands for?, US today network, (In press, 2015).

https://www.usatoday.com/story/news/nation-now/2015/06/01/lgbtq-questioning-queer-meaning/26925563/

[7] Dev Dutt, Did Homosexuality exist in ancient India?, debonai annual issue,(In press 2000).

http://devdutt.com/articles/applied-mythology/queer/did-homosexuality-exist-in-ancient-india.html

 

[8] Shambhavi  Saxena, How many of these 93 things do you know about India’s LGBTQ movement?, youth  ki awaaz, (In press 2017).

<https://www.youthkiawaaz.com/2017/07/lgbtq-movement-in-india-91-facts/>

[9] The Indian Penal Code,2018 (Act 45 of 1860), s.377

[10]  Naz foundation v. govt of nct of delhi, (2009) 160 DELHI LAW TIMES 277.

[11] Suresh kumar kaushal v. Naz foundations, (2013) CIVIL APPEAL NO. 1092 OF 2013.

[12] Navtej singh johar v. union of India thr. Secretary ministry of law and justice, (2018) W.P.(Crl.) NO.76 OF 2016.

[13] Yogesh Pratap singh and Dr. Afroz Alam, Navtej Singh Johar: A Progressive Verdict Which Discards Societal Prejudice, LIVE LAW, (In press2018).

<https://www.livelaw.in/a-progressive-verdict-which-discards-societal-prejudice/>

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