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The Status of LGBT People in India: A Socio-Legal Examination

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

THE STATUS OF LGBT PEOPLE IN INDIA: A SOCIO-

LEGAL EXAMINATION

Bhaskar Choudhury & Karun Sanjaya

ABSTRACT

In 2018, LGBT people got one relief: consensual sexual acts between
homosexuals are not criminal in nature. However, that is not sufficient for
them to change the stereotypical mind of our society. They have suffered a
lot from society as well as from their family. They have always been treated
differently. In the Indian Penal Code, a specific provision was made for
same-sex attracted people. Nevertheless, in Navtej Singh Johar’s case, the
Hon’ble Supreme Court decriminalized a part of Section 377, and that is, a
consensual same-sex sexual activity is no more offence.

Nevertheless, a non-consensual sexual act is still an offence under section

377. So, mere decriminalization is neither enough for LGBT people nor our
society. They are still deprived of getting status of either legal or societal.
This paper aims to present today’s scenario of LGBT people in India and
make society aware that they are not different or abnormal. This paper
describes detriments to LGBT people based on various social facts and
behaviour.


Assistant Professor of Law, Indian Institute of Legal Studies, Siliguri, West Bengal.

Research Scholar, VIT School of Law, Chennai, Tamil Nadu cum Assistant Professor of Law, Indian Institute
of Legal Studies, Siliguri, West Bengal.

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

INTRODUCTION

A ‘human being’ means a member of the ‘homo sapiens’ species. In other words, it means a
man, woman, or child having mental development than animals. Sometimes it denotes ‘natural
person’ as well, which means an individual who has his personality, as opposed to a legal
person. So, the term human being covers all persons without making any difference on the
basis of sexual orientation. The Constitution of India, in article 14, guarantees all persons' right
to equality before the eye of law1. But unfortunately, in the Indian Penal Code 1860, a specific
penal provision2 had been made for those engaged in performing same-sex physical relations.
This penal provision was in force for 158 years. Although making the provision
unconstitutional by the Supreme Court of India in 2018 could not change the mind of our Indian
society, which still believes homosexuality is a sin or few people treat it as a mental illness.
Most of the countries, like Norway, Denmark, Finland, Belgium, etc., are against making any
discrimination on the basis of sexual orientation and these countries have vigorously supported
same-sex marriage. The thought regarding consensual sexual performance between persons of
same-sex or same-sex marriage has been changing very slowly in our Indian society. In this
paper, we are trying to elaborate on the present scenario of LGBT people in Indian society.

The paper aims to present the following questions, which are required to consider the present
status of LGBT people:

1. Is homosexuality against the order of nature?

2. Does the Indian Penal Code violate the rights of LGBT?

3. Which factors are leading towards homosexuality?

4. What are the consequences of being homosexual?

5. What is the role of the judiciary with regard to decriminalizing section 377?

6. What is the present scenario of LGBT people in Indian society?

WHAT IS HOMOSEXUALITY?

The dictionary meaning of homo is ‘same’, and sexuality means ‘sexual orientation’ or ‘sexual

1
The Constitution of India,1950, art.14
2
The Indian Penal Code, 1860, s.377.

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

behaviour’. A homosexual person is attracted to the same sex. The word includes within its
ambit not only men attracted to other men, but also women attracted to other women. LGBT
stands for Lesbians, Gays, Bisexuals, Transgenders. The word lesbian denotes a woman who
is attracted to another woman. Similarly, if a man is attracted to another man, that man will be
known as gay. Bisexual means the person attracted to both sexes, i.e., he is attracted to a man
and a woman. Transgender denotes those persons whose gender identity matches neither a man
nor a woman. When these lesbians, gays, bisexuals, transgenders are attracted to the same sex
rather than the opposite sex, we call them homosexual. Homosexuality is nothing but a mere
sexual orientation. Some find it a disease, whereas some find it a mental problem which is
incorrect. When people think that homosexuality is a personal choice or disease, their attitude
towards homosexuals, like gays, lesbians, transgenders, becomes negative.

“Homosexuality is viewed by many as a social problem. As such, there has been keen interest
in elucidating the origins of homosexuality among many scholars, from anthropologists to
zoologists, psychologists, to theologians. Research has shown that those who believe sexual
orientation is inborn are more likely to have tolerant attitudes toward gay men and lesbians,
whereas those who believe it is a choice have less tolerant attitudes.”3

THE INDIAN PENAL CODE AND THE LGBT COMMUNITY

Since 1860 section 377 was in force, and it played a vital role against the LGBT people.
Whenever they had been caught either for staying together or for any other reason, they suffered
a lot from society as well as from police authority. They have always been tortured by the
police authority for their sexual orientation or behaviour. Section 377 was a weapon to
dominate the LGBT people.

Thomas Macaulay drafted the Indian Penal Code, and this provision was based upon the
Buggery Act4. This Act defined buggery as unnatural sexual activity, i.e., Same-sex
intercourse, which is against the will of God and criminalized that kind of activity.

In 1828, the Buggery Act5 was replaced by the Offences against Person Act 18286, which

3
Jane P. Sheldon, Carla A. Pfeffer et.al. Beliefs about the Etiology of Homosexuality and about the Ramifications
of Discovering Its Possible Genetic Origin, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4545255/ (30 th
December 2021, 12:11 PM)
4
The Buggery Act, 1533 (25 Hen. 8 c. 6)
5
Ibid.
6
The Offences against Persons Act, 1828 (9 Geo. 4 c. 31).

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broadened the area of unnatural sexual performances, and this act was helpful to prosecute the
rapists. However, it also included homosexuals within the meaning of unnatural sexual
activities.

Section 377 penalizes unnatural offences, i.e., offences against the order of nature. In order to
understand whether homosexuality is against the order of nature or not, we need to find out the
meaning of the phrase "order of nature". Order of nature means the happenings which are
considered normal and such happenings are expected to occur naturally without human
interference.

According to section 377, intercourse between man and woman is considered natural, and any
other carnal intercourse like anal or oral is unnatural. Hence, as per this section, a sexual
relationship between two opposite sex is natural.

How do we determine what is natural and unnatural? It can be seen that what was considered
unnatural at an earlier point in time is no longer natural and vice versa. Let us take the example
of polygamy. Before coming into force of the Hindu Marriage Act, 1955, ‘polygamy’ was in
practice, and people did not find it unnatural, while if we saw the practical situations of the
society, women suffered a lot because of the practice of polygamy. The Hindu Marriage Act,
1955 had been enacted with many important objectives, including, among other things, the
abolition of polygamy. So, when polygamy, which was once unnatural, has become natural,
why the relationship between two same-sex people is not becoming natural?

It is shocking and unfortunate to see that it took nearly 158 years after the passage of the Indian
Penal Code to decriminalize consensual sexual activity between homosexuals!

FACTORS LEADING TOWARDS HOMOSEXUALITY

In most cases, the persons who are aware of human rights and the psychologists can understand
the mental condition and behaviour of homosexuals. Society still believes that it’s a mental
disease or some believe that it’s an obsession for sexual performances. Again, some people
believe that it arises due to a lack of proper education during childhood.

But in reality, some internal and external factors lead towards homosexuality.

Internal Factors: Some internal factors have been proposed to explain homosexuality, i.e.,
biological and psychological factors. Attributing the aetiology of homosexuality implies that

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homosexuality is constant and therefore is neither a choice nor a lifestyle.

“In research, it has been found that positive attitudes toward homosexuality are associated with
the view that its origins are biological, whereas negative attitudes are associated with the view
that its origin personal choice. Because beliefs about the origins of homosexuality are strongly
related to attitudes, it is likely that such beliefs will ultimately relate to social policy and
behaviours.”7

External Factors: Along with internal factors, there are several external factors that led to
homosexuality. The following external factors prove that not only biological or psychological
factors are responsible for homosexual orientation. The factors are as follows:

• Lack of masculinity: In most cases, if a man lacks masculinity, people find him to be a
homosexual. But that way of thinking is not correct in all cases. If people treat him
differently, he might suffer from depression, which builds a lack of confidence. If a
child is not athletically perfect or not as strong as other boys, he is generally rejected
and often called a fairy or queer. These children have to suffer mental pain and start
questioning their sexuality.

• Lack of faith: Loving a person of the opposite sex may result in bitterness in life, or that
may result in separation. This type of thinking usually occurs in people the opposite sex
has tortured. Due to this, they find that it is better to find someone of the same sex
instead of the opposite.

• Mental trauma from childhood: In most cases, we have found that children have been
sexually abused by older men. Because these old men like to physically enjoy with
young boys. These children find themselves a victim of rape. Such kind of abusiveness,
which becomes a mental trauma, creates in the mind of the child that they are
homosexual, and it is carried over since their childhood.

• Behaviour of the parents or rejection from the family: If the child is not treated equally
by their parents, for instance, if a boy gets priority over the girl in the family, that girl
might feel that parents are rejecting her and vice versa. Then the child feels insecure,

7
Jane P. Sheldon, Carla A. Pfeffer et.al Beliefs about the Etiology of Homosexuality and about the Ramifications
of Discovering Its Possible Genetic Origin, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4545255/ (4 th
January, 2022 10:05 P.M.)

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

and he or she might have guilt to accept himself or herself as a boy or girl, whatever he
or she is. This unequal treatment toward son or daughter may result in homosexuality,
and the boy or girl may turn out to be gay or lesbian.

THE CHALLENGES FACED BY HOMOSEXUALS

If a person belongs to the LGBT community, it is highly unlikely that he/she will be accepted
with open hands by the society. Generally, they are discriminated on the basis of their
orientation. Consequently, they have to face numerous problems viz.:

i) Marginalization: Marginalization is one of the major problems faced by

homosexuals. Marginalization means treating a person as peripheral. Sometimes,
society refuses to accept them so that it becomes difficult for them to live as an
individual. They are stigmatized and get negative attitudes from society. They want
to contribute in every sphere of society, but they are not allowed to participate
equally because they are marginalized. We can term it as the social exclusion of
homosexuals. Marginalization of LGBT people often starts from the family where
they are born.
“In research, it is found that approximately 8% of transgender adults experienced
homelessness in the past year in the United States of America. 6% of African
American sexual minorities experienced housing instability. 71% of sexual
minorities experienced homelessness for the first time as an adult and 20% of sexual
minorities experienced homelessness before the age of 18.”8

ii) Harassment and Torture: It can hardly be seen that a teenager, who is found as
homosexual, has not been harassed or tortured in school by friends. The harassment
is not limited to the schools only; people from the LGBT community face problems
everywhere, be it in school or college, or streets.

Sexual violence is experienced by lesbians, gays, transgenders, bisexuals at a higher

rate than straight people.

The Centres for Disease Control and Prevention (CDC), in National Intimate
Partner and Sexual Violence Survey, found that:

8
Bianca D.M. Wilson, Soon Kyu Choi et.al, Homelessness among LGBT Adults in the U.S.,
https://williamsinstitute.law.ucla.edu/publications/lgbt-homelessness-us/ (4th January, 2022 02:43 P.M.)

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Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

• 44% of lesbians and 61% of bisexual women experience rape, physical violence or
stalking by an intimate partner, compared to 35% of straight women.

• 26% of gay men and 37% bisexual men experience rape, physical violence or stalking
by an intimate partner, compared to 29% of straight men.

• 40% of gay men and 47% of bisexual men have experienced sexual violence other than
rape, compared to 21% of straight men9.
iii) Rejection: Rejection which the LGBT people usually face may be of types i.e.,
rejection from the family and rejection from the society.
If a person is gay or lesbian in society, he or she is always rejected by society. Even
if it is known to the family members that any child is found as gay or lesbian, he or
she is ignored or marginalized by the family members.
iv) Homelessness: Homelessness is one of the biggest problems faced by people of
being queer. In New York, 40% of the LGBT people are homeless and staying on
the streets. They are simply thrown out of their homes for being queer. Even the
domestic violence shelters also refuse to give shelter to them. Because of this
homelessness, these people become addicted to drugs or sometimes they become
sex workers. Furthermore, they also have to face financial problems.

v) Mental Weakness: Mental weakness is the common result that occasions in the
mind of LGBT people. When they need companion or support, they are usually
rejected by the family and society and even by their friends. Because of this type of
rejection, they start suffering from mental issues like going under depression.
Sometimes they attempt to self-harm or try to commit suicide. This suicidal attempt
is very commonly found in the mind of LGBT people.

ROLE OF JUDICIARY WITH REGARD TO DECRIMINALIZING SECTION 377

The Indian judiciary played a vital role in decriminalizing section 377 of the Indian Penal Code.
But it must be kept in mind that the entire section 377 is not decriminalised. There are several
landmark judgments given by various High Courts and Supreme Court which have clearly
supported the homosexual activity as natural one, not as an offence. The so-called sodomy law
i.e., section 377 which punishes the carnal intercourse with life imprisonment, has been finally

9
Human Rights Campaign, Sexual Assault and the LGBT Community, HRC.ORG,
https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community (4th January, 2022 02:46 P.M.)

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struck down. The following judicial precedents will help to appreciate the role of the Indian
judiciary with regard to decriminalization of section 377:

a) The Naz Foundation case (I)10: In this case, the constitutionality of section 377 of IPC
was challenged before the Delhi High Court. It was contended by the petitioner that
section 377 is clearly violative of Article 14, 15 and 21 of Indian Constitution. Article
14 describes that every person is equal before the eye of law and everyone shall get
equal status11. Article 15 which says about prohibition on discrimination on the ground
of sex, race, caste etc12. Article 21 talks about right to life and privacy13. Despite the
presence of constitutional mandates, LGBT people were continuously being harassed
and discriminated. Therefore, section 377 was continuously affecting the fundamental
rights and human rights of LGBT people. The petitioner also contended that the
impugned section discriminates on the ground of sexual orientation which is an absolute
choice of every person. The Delhi High Court stated that if two persons of the same sex
is performing sexual activity with their own consent, it will not amount as a crime. If it
amounts as crime then it is violation of fundamental right which is protected by
Constitution.
b) The Naz Foundation case (II)14: In the previous Naz Foundation case15, the Delhi
High Court passed the judgment in favour of Naz Foundation by mentioning that
section 377 violates the fundamental rights of the Constitution and made this provision
as unconstitutional. However, in the instant case, the apex court overturned the decision
of Delhi High Court and recriminalized section 377 of Indian Penal Code.
c) National Legal Service Authority v. Union of India16: In the instant case, the
Supreme Court held that third gender people have equal right to get protected under
Constitution of India. The Court also said that gender identification must be made on
the basis of psychological sex instead of biological sex.
d) Puttaswamy case17: Popularly known as the Aadhar judgment, the court held that the
right to privacy is an integral part of the Indian Constitution and it flows from Article
21 of the Indian Constitution. In this case, it was decided that the right to privacy

10
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.
11
The Constitution of India,1950, art.14
12
The Constitution of India,1950, art.15
13
The Constitution of India,1950, art.21
14
Suresh Kumar Kaushal v. Naz Foundation, Civil Appeal No. 10972 OF 2013.
15
Supra n. 10.
16
NALSA v. Union of India & Others, Writ Petition (civil) No. 604 of 2013.
17
Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.

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extends to every person irrespective of their gender or sex. The State should protect the
LGBT people while they are choosing their partners. And LGBT people have, under
the right to privacy, the right to choose anyone whom they like.
e) Navtej Singh Johar Case18: A writ petition challenging the constitutional validity of
section 377 of the Indian Penal Code, which criminalizes consensual sexual relations
between two adults of the same sex was filed in the instant case. The petitioner
contended that the right to sexuality or the right to choose a sexual partner is a part of
the right to life and right to privacy guaranteed under Article 21 of the Indian
Constitution. He further contended section 377 as unconstitutional as it violates Articles
14, 15 and 19. The respondents contended that section 377 only defines a specific
offence and its punishment, and therefore doesn’t violate Article 14. It was also
contended that the provision does not violate Article 15 because Article 15 prohibits
discrimination based on gender, race, caste, sex, and place of birth but not on sexual
orientation.

The five-judge bench unanimously held that section 377 of the Indian Penal Code is
unconstitutional if it is applied to sexual activity between two adult persons of the same
sex. And the Hon’ble court further held that this provision of IPC is discriminating
against LGBT people on the basis of their sexual orientation and violating Articles 14
and 15 of the Constitution. Furthermore, the court held that section 377 of IPC restrains
the LGBT people from realizing their identity and violates Article 19 (1) (a) of the
Constitution. Accordingly, the apex court struck down Section 377 of the Indian Penal
Code as unconstitutional and decriminalized consensual sexual activity between two
same-sex adult persons.

f) Madhu Bala v. State of Uttarakhand & Ors.19: In this case, two women, Madhu Bala
and Meenakshi were in a relationship since 2016. They were adults and lived together
of their own will. Meenakshi was wrongfully confined by her mother and brother.
Consequently, Madhu Bala filed a Habeas Corpus petition. The Uttarakhand High
Court clarified that two persons of the same sex are permitted to stay together. Live-in
relationship by same-sex persons is not barred by law even though they are not allowed
to marry at present. The court also stated that the right to liberty is a fundamental right
that includes the right to choose a partner and the right to cohabit together. The court

18
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
19
Habeas Corpus Petition No. 8 of 2020.

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also emphasized that a person who has attained the age of majority his liberty cannot
be diminished because, as per law, he is capable of making a choice for himself or
herself. Finally, the court reiterated that a consensual relationship between two adults
of same-sex is not barred by law.

CONCLUSION

Having discussed the meaning of homosexuality, the consequences that homosexual people
face, the role of the judiciary, it can be said that the Hon’ble Courts have played a vital role in
making the status of LBGT people equal to the heterosexuals. But it must be said that only
making any provision unconstitutional or allowing same-sex persons to stay together doesn’t
give ultimate remedy to them. The societal stigma of being homosexual must be removed. If
society accepts LGBT people just like heterosexual people, the battle will come to an end. This
ultimate denial by society affects homosexuals, and as a result, they go under various mental
issues. Society needs to accept one thing that ‘homosexuality is neither a disease nor a choice;
it is merely a sexual orientation.’ Therefore, we need to accept a person attracted to the same
sex like we accept a person attracted to the opposite sex. There is nothing wrong. We need to
change our stereotypical minds.

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