The legal framework for the protection of the LGBTQ community in India
  2023-12-21
Mr. Paramjeet Sangwan

The legal framework for the protection of the LGBTQ community in India

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Introduction 

The LGBT community and their rights have been an issue for some time, particularly in a country like India where IPC Section 377 was in force until September 2018. There was a huge outcry in favor of the community and support for its members. , especially in the last few decades. Unfortunately, the voices were just as strong. Navtej Singh v. Union of India in September 2018 was a big deal to support the community but little has been done to get close to where the community will receive proper legal support.This article aims to examine the existing rights of community members and proposes legal reforms and policy recommendations for their integration into society.

 

Scope of community’s rights in India

So far, the lgbtq+ communoty have had no special rights. The law only "allows" them to have consensual intercourse because criminalizing it would violate their fundamental rights. The scope of their rights is therefore limited to all fundamental rights enjoyed by individuals in that country. Civil rights, on the other hand, are not yet something enjoyed by them. They cannot legally register their marriage which means their marriage is not recognized under Indian law.A Kerala couple, both members of the LGBT community, got married and attempted to register their marriage under the Special Marriage Act 1954. However, in January 2020, the District administration refused permission to register the marriage, claiming that the law does not allow her to marry. The Special Marriage Act 1954, while not expressly refusing permission to register the marriages of community members, makes no specific mention of that permission. So, the scope of civil rights of the community in India still has a long way to go.

The criminal protection laws also do not shed light on specific crimes committed against community members. Criminal offenses, particularly domestic violence and sexual harassment, which unfortunately often affect members of the community, are not only difficult to report, but in some cases impossible because the law does not address extending the same rights to transgender people and men who are transsexual can identify, is silent. For example, the 2005 Protection of Women from Domestic Violence Act focuses only on women and minors and does not extend to men, transgender people, or those who prefer to remain neutral.

The Transgender Rights Protection Act of 2016 and 2018 attempted to grant specific rights to transgender people based on their needs. However, the bills met with fierce opposition, particularly from community members.Some arrangements just didn't meet the needs of the community. Legislation to protect the rights of cisgender women already exists within the legal framework, providing for stricter sanctions than those proposed in the statutes, such as the sanction for sexual harassment. Questions have been raised about the difference between raping a person of either gender. Many have viewed the laws as discriminatory and therefore fundamentally unconstitutional. This was followed by the Transgender Rights Protection Act 2019, which went into effect in January 2020.Although much has been done to improve the social status of the LGBTQ+ community, their rights still require close attention, especially since the current legal framework does not provide the specific protections they need.

 

Section 377 and it’s Evolution

Section 377 of the Indian Penal Code generally criminalizes intercourse between anything other than a cisgender man and a cisgender woman. This law is quite archaic, having originated in India while it was still under British rule in the 1860s, but even after more than 70 years of independence, no steps have been taken to decriminalize this provision. However, in the past few decades, the community has been able to come out and raise its voice, and it's been doing so around the world. Even in India, some activists came forward, community support grew slowly, and it was difficult to avoid the "problem" easily.When society changes, of course, the law changes too.

Section 377 of the Indian Penal Code generally criminalizes intercourse between anything other than a cisgender man and a cisgender woman. This law is quite archaic, having originated in India while it was still under British rule in the 1860s, but even after more than 70 years of independence, no steps have been taken to decriminalize this provision. However, in the past few decades, the community has been able to come out and raise its voice, and it's been doing so around the world. Even in India, some activists came forward, community support grew slowly, and it was difficult to avoid the "problem" easily.When society changes, of course, the law changes too.

 

First major victory

The community's first major victory came with the Naz Foundation's ruling of the Delhi High Court against the NCT government of Delhi (2009). The Naz Foundation is an NGO that has filed a lawsuit in the High Court in Delhi to decriminalize Section 377 for adult with their consent. However, the Delhi High Court initially dismissed the case as the NGO had no legal status. However, the Supreme Court, after hearing the Naz Foundation's appeal in the same case, ruled that the NGO could file a public interest lawsuit with the Supreme Court.

The case was brought before the Delhi High Court in 2001. Eight years later, on July 2, 2009, the Delhi High Court issued a decision on the case.

According to the Court, the right to equality guaranteed in Art 14 of the Indian Constitution was not respected because of Section 377's provisions against homosexuals as a group. The article was partially abolished: Voluntary adult sex in private was no longer a crime. The judgment also states that it will remain in force until amended by the Gov.

Unfortunately, the decision was overturned shortly thereafter by a panel of two judges from the Supreme Court of India.

 

Overturned in 2013

In December 2013, the Supreme Court ruled in Naz Foundation v. Delhi NCT government charging Section 377 in its entirety.

This happened in the case of Suresh Kumar Kaushal v. National Foundation The court ruled that the Delhi High Court had wrongly based its decision on international steps and judgments, noting that only a small percentage of the community is part of the Indian population. The court further found that no judicial intervention from the Delhi High Court was required in this case and that the section itself was never unconstitutional.However, the Court found that Parliament should investigate the matter.

This was a major setback for the community and several voices were raised against the Supreme Court decision. Several motions were made in 2017 to correct that ruling, and the Supreme Court issued its final decision on September 6, 2018, which is now a milestone.

 

The Final 2018 Win

Navtej Singh v. Union of India – A panel of five judges issued a unanimous decision on September 6, 2018, declaring Section 377 unconstitutional.The court also ruled that all members of the community enjoy all rights guaranteed by the constitution, including equal citizenship and protection without discrimination.

At this point it should be noted that Sec. 377 still exists as it also covers other aspects such as non-consensual sexual acts, sex with minors and bestiality.

These are the main cases that have helped establish and shape the legal and social vision towards the LGBT community in recent years. Fortunately, the LGBT community has been given basic rights and protections under the Constitution. However, much remains to be done to improve the rights of community members in both civil and criminal matters.

 

New legal petitions

There are two major legal petitions brought before the High Courts and Supreme Courts in India post the September 2018 Judgement of Navtej Singh vs Union of India.

  • Petition for registration of marriage
  • Petition for civil rights

 

Conlcusion

The 2018 Supreme Court ruling is only the first step towards integrating the LGBT community into society. No specific rights have been established to protect them and much can and must be done to make progress in this area. The suggestions listed in this article have been carefully considered to create the best laws for the community. However, society and business can do a lot on a social and economic level. Although the process has been terribly slow, the community is finally being recognized and integrated into society.Community integration is further strengthened with legal support. Therefore, granting certain rights should be the main goal of activists and advocates working in this area. One can only hope that the government and legal system in India will support the community and its members in protecting their rights.

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