LGBT RIGHTS IN INDIA

The rights of LGBTs has always been a debatable topic in India but, LGBT community gained
utmost attention of public after the ruling of Honorable Supreme Court of India in September 2018,
in which gay sex has been decriminalized which had been barred under an 1860 law imposed by
the British. Before going into further details about the situation of LGBT in India, first we should
be very clear with the word LGBT . So, this word ‘LGBT’ stands for Lesbian, Gay, Bisexual, and
Transgender. Earlier, this LGBT were known as Gay community, but later on other types of
homosexual people and their communities also became the part of this and now combinedly
referred to be as LGBT. This article starts with the introduction - that Who are LGBTs? and What
difficulties they are facing nowadays in India? This article will be centering on LGBT Rights in
India and will focus upon the decision of Supreme Court that upheld Section 377 of Indian
Constitution.

Who are LGBTs.

LGBT stands for Lesbian, gay, bisexual and transgender. Initially this community was called as
gay community. But later on it was found that gay community includes only men and thus this
category didn't accurately represent the idea to whom it referred. i.e it didn't cover up all other
human beings who are not normal or are homosexual. So this abbreviation, LGBT was introduced
in 1990s which includes human beings who have different sexual orientation than a normal person.

The term 'Lesbian' refers to women who are sexually attracted towards women only. They are
attracted to only female gender like the ‘Gays’ are attracted towards male gender only.

In LGBT, B stands for ‘Bisexual' which represents those human beings who are attracted to both
the sexes i.e, men and women.

‘Transgender’ is an umbrella term that describes people whose gender identity or expression does
not match the sex they were assigned at birth. For example, a transgender person may identify as
a woman despite having been born with male genitalia. i

Problems faced by LGBTs in India.

LGBT community faces a lot of problems in our society. The main problem faced by LGBT is that
people of other community don't accept LGBT community equally because of the differences in
their sexual orientation which aren't present in normal humans. They face discrimination,
inequality, harassment, unemployment, poverty, lack of healthcare and threats in society just
because they belonged to homosexual category. They face a lot of difficulties in finding
acceptance, they feel so isolated in society like they have done any crime. They face inequality,
discrimination in almost every place around the world. People mock at them by making ridiculous
comments on their identity, body structure and habits.,etc. and make them feel awkward and
different. Even LGBT people has started to hide their gender by not disclosing it at their workplace,
just to protect their job. Because many companies don't hire employees who belonged to third
gender and thus this is a discrimination with the rights of LGBT. Many young LGBT face
harassment, discrimination, bad comments which develops feeling of alienation in them and causes
depression, drop-out of school and homelessness. Such discrimination gradually low down their
self-confidence and they become isolated from their friends and family. Even many LGBT
children are not accepted by their parents and family members, because of which they become
homeless.

LGBT face poverty and racism in their day to day life on a daily basis. They become victim of
hate crimes. In many countries homosexuality is treated as crime and illegal. So there are many
number of problems face by LGBT in society which resulted into dropping out of their school,
loss of home and family members, depression, isolation from the society and because of which
they even attempt to suicide.ii

Recognized Rights of LGBT Community by Supreme Court

On 6th September 2018, the Supreme Court of India unanimously struck down a part of Section
377 of the Indian Penal Code, 1860 in Navtej Singh Johar and Ors. v. Union of India (the "Navtej
Johar Case"), which criminalized sexual intercourse against the order of nature to exclude all kinds
of adult consensual sexual behavior.iii Section 377 has been criticized for discriminating against,
and disproportionately affecting, the LGBT community, and for not being in tune with modern
morality.
In this judgment of Supreme Court, the emphasis was on the fundamental right of homosexual
persons to live with dignity, without the stigma attached to their sexual orientation, with equal
enjoyment of rights under India’s constitution, and equal protection under the law. iv

The decision of SC on decriminalization of Section 377 was based on primary grounds under the
Constitution - i.e on (i) Right to equality under Article 14; (ii) Right against discrimination under
Article 15; (iii) Right to freedom of speech and expression under Article 19; and (iv) Right to
privacy under Article 21.

Right to Equality

Article 14 of the Constitution of India reads as under: “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.” v Though,
this article allows that distinction can be drawn, but it also mandates that such a distinction must
be based on intelligible differentia. The Supreme Court held that there was no intelligible
differentia between people "who supposedly engage in 'natural' intercourse and those who engage
in 'carnal intercourse against the order of nature'".

Right against Discrimination

Article 15 of Indian Constitution prevents the state from discriminating against any citizen only
on the grounds of sex, religion, race, caste, or place of birth. In the Navtej Johar Case, Supreme
Court held that any ground of discrimination, whether direct or indirect, which is founded on a
particular understanding of the role of the sex, constitutes discrimination under Article 15.
Therefore, Section 377 was held to be discriminatory under Article 15.

Right to Freedom of Speech and Expression

Article 19 of Indian Constitution deals with the Protection of certain rights regarding freedom of
speech and expressions to all citizens. In the Navtej Johar Case, Supreme Court noted that Section
377 does not qualify as a reasonable restriction on an individual's freedom of speech and
expression.

Right to Privacy

Article 21 of Indian Constitution reads as, “No person shall be deprived of his life or personal
liberty except according to a procedure established by law.” vi
This article provides for the
protection of life and personal liberty as a fundamental right to all citizens of India. The Supreme
Court found Section 377 to be in violation of these constitutional rights as right to privacy couldn’t
avail by the LGBT community members.

After this historic judgment of Supreme Court, India puts itself into the list of those almost 150
countries where homosexual activity is legal. The decriminalization of Section 377 by providing
equal fundamental rights to LGBT community as that of other citizen was the first step towards
recognizing the rights of the LGBT community in India.

Conclusion

Every community and every human being should be treated equally whether they are homosexuals
or heterosexuals because we all are god's creation so there should be no discrimination on the basis
of sexual characters. Our Indian Constitution provides fundamental rights to all the people
including LGBT community. It provides Right to Equality, Right against discrimination on the
basis of sex, Right to life, Right to Freedom of Speech and Expression, Right to Privacy and other
religious and cultural rights. These rights are not direct rights provided to LGBT but can be
interpreted as they are citizens of India. LGBT community in India and in all over the world
deserves to be treated equally with dignity and respect.

i
Alina Bradford, What Does 'Transgender' Mean?, LIVE SCIENCE (June 17, 2018),
https://www.google.com/amp/s/amp.livescience.com/54949-transgender-definition.html.

Shaline Choudhury, Don’t Ever Be Afraid To Show Off Your True Colours, YOUTH KI AWAAZ
ii

https://www.youthkiawaaz.com/2018/01/dont-ever-be-afraid-to-show-off-your-true-colours/amp/#top

iii
Jismin Jose, Navtej Singh Johar & Ors. vs. Union of India thr. Secretary Ministry of Law & Justice, LAW TIMES
JOURNAL (Mar. 7, 2019), http://lawtimesjournal.in/navtej-singh-johar-ors-vs-union-of-india-thr-secretary-
ministry-of-law-justice.

iv
Melissa Cyrill, Section 377: LGBT Rights and HR Policy in the Indian Workplace, INDIA BRIEFING (Oct. 11,
2018), https://www.india-briefing.com/news/section-377-india-lgbt-rights-hr-policy-indian-workplace-17804.html.

v
INDIA CONST. art. 14.

vi
INDIA CONST. art. 21.