Law · Public Policy · Society

LGBT Rights In India : Legal Provisions And Issues

Ridam Arsh elucidates  upon the humanitarian and the legal aspects of LGBT rights in India, along with uncovering the moral element associated with it, and how the same may breed incessant discrimination.

“We live in a Society where we are more comfortable seeing men holding guns rather than men holding ands”

INTRODUCTION

LGBT- Lesbian, gays, bisexual and transgender rights are not the rights that adequately fulfill  the needs of the community, as it has emerged today. There had been people in the past who were not naturally straight, were oppressed, were denied equal opportunities, and were not recognized by the society to be normal. Even temples are the evidence for the existence of gay sex in the history, as can be observed in the temple of Vishwanatha, Khajuraho 10th century AD.

“The population of Men who have Sex with Men was estimated to be 25 lakh in India,” the Government said in its affidavit filed in the Supreme Court, citing figures of the National Aids Control programme.

A growing emphasis can be seen in the movies such as ‘Dunno- Na Jane Kyu’, ‘Dostana’, ‘The Journey’ etc. Literature has touched another untouched portion to explore the plight of gays in the fictions such as ‘Kama Sutra’ and ‘Same Sex Love in India- Ruth Vanita And Saleem Kidwai’.

Maulana Madni, of the Jamiat Ulema-e-Hind said – “If these same sex couples adopt children, the child will grow up with a skewed version of a family. Society will disintegrate. If we are to look at countries in the West who have allowed same-sex marriages, you will find the mental tensions they suffer from.” 

Preserving the Indian culture, not digesting the fact of someone being a part of LGBT, showing such homophobic and homophobic attitudes are some of the reasons why we as a society are not able to provide LGBT rights to those who are humans too.

Om Prakash Singhal, the Vice President of the Vishva Hindu Parishad (VHP) agreed with his Muslim brothers (note the oxymoron in that phrase) and said –

“This is a right decision, we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. The SC had protected our culture.”

Heavily opposing the words of the Vice president of VHP, one must understand that marriage is not a concept based on two different sexes; it is a marriage of two souls, a marriage of love. Marriage is indeed Gender Blind and nowhere, the Homosexuality can be analogous to being animals again because even our scriptures have evidences where Arjuna became “Brihannla- Eunuch” during the exile of Pandavas, Shikhandi being the sole reason for the victory of Arjuna to defeat Bhishma.

 

THE LEGAL FRAMEWORK AS TO THE CAUSE

Section 377 of the Indian Penal Code   provides for a provision declaring unnatural sex punishable. The Indian law criminalizes gay sex. Under the limitations of these provisions, police harasses and exploits gay men and denies them an opportunity to be protected under the Indian legal system. 

Closely analysing the definition laid down by Section 377, “Person” is the word that has been used which shall include all men and women alike. From this purview, even transgender persons are entitled to receive protection under IPC from any crimes committed against their body and property.

Further, though the Delhi HC had De- criminalized Homosexuality in July 2007, the SC in December, 2013, again criminalized it. The Constitution of India only gives recognition to male and female. Transgender have been excluded from the definition. It is tragic to see such omission of basic rights for them in the Indian Constitution.

Queer pride Parades taking place in different metro cities and many of the people joining the same shows the progress of the nation and the changing minds of the youth to welcome humanity with open hands. The day of 24th April is recognised as Transgender Day, as on that day, the Bill for the same was passed by Rajya Sabha. The bill ensured to include the Education, Medical and social security to all the transgenders, and is a step forward for the welfare of the entire human species.

We can observe international developments such as France, UK, United States, Canada, Brazil and Australia, which have de-criminalised homosexuality. Other countries like Belgium, Brazil, Canada, Iceland, Ireland, France, Luxembourg, Norway, South Africa, Spain, Portugal Uruguay and Sweden allow same sex marriage.

 

CONCLUSION

It is most of the times argued by many of the religious leaders that what has been provided by the religions to be immoral shall not be made legal. As for this regard, they intend to even refuse the basic fundamental rights that a person deserves. “Moral” is a very subjective term, and what is moral for one might not be moral to other, and that is why, everything that is immoral may not be declared necessarily illegal.

Right to Life as provided by Article 21 of the Constitution of India shall not only be applicable to any specific gender or to any person with heterosexual relationships. The Indian Society, Parliament, Judiciary must understand that it shall be left to the wills of any two consenting adults as to who they want to share their same bed with. Neither the Government nor the Society has the right to intervene in anyone’s right to choose their partner. We need Equality and its enforceability. Criminalising any person’s intimate and personal moments won’t make a Developed nation. There are issues that need drawing of attentions of the Public authorities such as Marital Rapes where even intruding in the intimate moments would be of some welfare to the individual of the Nation.

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