ABSTRACT

Hinduism acknowledges a third gender. However, in another Hindu Text , The Manusmriti, there
are various punishments for homosexuality. During the Mughal Empire, a number of the pre-
existing Delhi sultanate laws were combined into the Fatawa- e - Alamgiri, mandating a several
types of punishments for homosexuality. Codification of criminalization of homosexual activity
was enacted by of section 377 by the British, which stood for more than 70 years after Indian
Independence. On 6 september 2018, the supreme court issued its verdict. The court
unanimously ruled that section 377 is unconstitutional. Despite of their Recognition of same –
sex relationships, Discrimination protections, Indian LGBTQIA+ citizens face social and legal
difficulties not experienced by non – LGBT persons. This paper aims to present India’s
constitutional and Legal position of LGBTQIA+ people . Though the supreme court of India
through the landmark judgments has laid the groundwork to confer upon the queer and non-
binary community a bundle of basic human rights, but the legislature has failed to keep up . This
paper analyses India’s constitutional and Legal position of LGBTQIA +people before and after
Independence.

INTRODUCTION:
A s the world progresses in the 21st century, widespread confusion, anxiety, and anticipations
exist about the constitutional solutions to injustice based on discrimination on the grounds of
race, gender, disability, and LGBTQIA+ status.1 It is safe to assume that discrimination results
in social and economic inequalities that create difficulties of all sorts in the lives of the persons
discriminated against. Discrimination can occur on various grounds, among which are; gender,
race, disability, sexual status, ethnic background and many others. The Convention on the
Elimination of all Forms of Discrimination Against Women(CEDAW) defi nes discrimination
against women as "any distinction or restriction made based on gender which could impair or
nullify the recognition or privileges exercised by women, based on the equality of both men and
women, of fundamental rights in the economic, civil, political, or any other Þ eld".2 Globally,
women are being treated as the weaker gender and are, as a result, discriminated against and
overlooked. Gender oppression limits the societal respect and values given to women and
widows. Despite various actions channelled against it, for example seminars and webinars that
promote equality of citizens it is diffi cult to put an end to it since it is sustained mainly by the
unintentional, lack of self-consciousness actions of millions of people. Another prominent form
of discrimination is racism; this has eaten deep into the roots of all aspects of the society,
producing social, economic, and political inequalities in race that are inextricably connected to
the past.3 Despite several efforts, the struggle against racial injustice has not ended; for instance,
the murders of George Floyd, Breonna Taylor, Ahmad Abbey, and countless other Black men
and women recorded in America in 2020. Meanwhile, discrimination can also be based on
disability. Over the course of history, society has always put restrictions on the skills and.
potentials of disabled individuals.5 These categories are given no opportunity to set goals,
dreams, or objectives for their lives because they are judged and limited because of how they
were born or how they look. Generally, disabled individuals lack adequate representation in the
labour workforce, and even those who manage to get jobs are unfairly treated. Lastly, another
dimension of discrimination is sexual status or identity; here, the people discriminated against
are called the LGBTQIA+, an acronym which stands for Lesbian, Gay, Bisexual, Transgender,
Queer, Intersex and Asexual people; those in this category have to conceal their true identity for fear of
stigma, rejection, or imprisonment . The people who fall under the sphere are demeaned and ill-
treated. They are subjected to various forms of sufferings and painful treatments like abduction,
torture, sexual violence and a conversion therapy, a degrading treatment used to change the
gender identities of people. Despite all of these, there are not enough laws and actions to protect
their human rights and entitlements.

WHAT IS LGBTQIA+:

The LGBT community has been in a debate for many years. The notions to secure this
community by justice, equity and unity have been the prime motto of government. Earlier, these
LGBT were referred as Gay community, but later it included other types of homosexual people.
Discrimination against this community has become common, they are isolated and alienated
from the society and they are denied the basic fundamental rights, which they are entitled to
being the citizen of India. In recent times the rights of this community have been realised and
there is an intervention of judiciary to protect them.

LGBTQIA+: An acronym used to signify Gay, Lesbian, Bisexual, Transgender, Queer, Intersex,
and Asexual people collectively. 

The ‘+’ in ‘LGBTQIA+’ signifies that the above list is not exhaustive it includes other categories
as well .

Sex is what you are born with, Gender is what you recognize and Sexuality is what you
discover.” By Anita Chettiar.

The term Gay was traditionally used to refer to the people who are attracted to people of same
gender. But generally Gay refers to men who are sexually attracted to men only.

Lesbian: A woman who has a significant attraction, primarily to members of the same gender, or
who identifies as a member of the lesbian community.

Gay: One who has significant sexual attractions primarily to members of the same gender or sex,
or who identifies as a member of the gay community. Typically associated with men.

Bisexual: The potential to be sexually attracted to people of more than one sex and/or gender,
not necessarily at the same time, not necessarily in the same way, and not necessarily to the same
degree.

Transgender: Umbrella term for those whose gender expression or identity is not congruent
with the sex assigned at birth and/or whose gender is not validated by the dominant culture. 

Queer: Reclaimed derogatory slang by many who reject gender and sexual binaries. Also used
as a political identity by many who want to dismantle oppressive systems in society.  

Intersex: A general term used for a variety of bodies in which a person is born with reproductive
or sexual anatomy that does not fit into the sex binary.

Asexual: Umbrella term for those to tend not to have a sexual desire towards others; asexuals
may experience romantic attractions and engage in sexual behavior.

In Ancient & Medieval India

Before the imposition of colonial-era laws under British rule, India had its own texts, which
detailed the practice of homosexuality and same-sex intercourse.
As far back as 400 BC, the Kama Sutra, said to be written by Indian philosopher Vatsyayana,
describes homosexual acts in detail, including explicit instructions on how to perform such acts.
It describes men who have sex with men, women who have sex with women, as well as
bisexuals, transgender persons, and intersex persons.

Meanwhile, in South India, the oldest of Tamil texts, Tamil Sangam literature from 3 BC to 4
AD, included descriptions of man-on-man relationships and relationships between transgender
people.

Other ancient texts like the Arthashastra, Nardasmriti, and Sushruta Samhita also mention
different types of same-sex relationships. In Indian mythology, there are tales of Vishnu who
turned himself into Mohini to seduce demons and sages.

But as much as some myths and ancient texts detailed, and even instructed, on LGBT
relationships, other texts like the Manusmriti derided the same.

The Manusmriti, for example, detailed punishments like shaving the head of a woman or cutting
off her fingers, as punishment for engaging in lesbian intercourse.

Apart from the texts, the walls of ancient architecture are the second source of information about
ancient India's thoughts on sexuality, wrote author and mythologist Devdutt Pattanaik in a 2008
article titled 'Did Homosexuality exist in ancient India?'.

For example, the temples of Khajuraho, depict same-sex relationships and bisexual relationships,
as well as other acts of what was till a while ago termed "unnatural intercourse.

Pre-Independence India

The first codified legislation on homosexuality in India was Section 377 of the IPC. From 1861
to 2018, for nearly 157 years, being a queer person in India could land you in jail for 10 years for
the "unnatural offence" of having "carnal intercourse against the order of nature."

The text of Section 377 of the IPC remained deliberately vague to be applied on a case-by-case
basis to any "carnal relationships against the natural order". This extends to gay, lesbian,
bisexual, and trans relationships, as well as acts like bestiality and sodomy.

After Independence and Partition, both India and Pakistan adopted their respective versions of
the original IPC as the Indian Penal Code and the Pakistan Penal Code.

Section 377 would continue to stay in effect for over 60 years with no successful contention.
Till 2001, when the Naz Foundation, an NGO that works with HIV+ patients and sexual
health, filed a Public Interest Litigation (PIL) challenging the clause as violative of the
fundamental right against discrimination enshrined in the Constitution of India.
Challenges faced for the decriminalization of section 377

Challenge 1: NAZ foundation

in 2009, the Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377,
which criminalised same-sex relationships, was unconstitutional, and struck the law down,
decriminalising homosexuality in India for the first time.

The HC held that penalising such actions violated the right to privacy and personal liberty under
Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment
(Article 14) and the prohibition of discrimination (Article 15).

Election commission comes into picture…

Election commission of india entered into picture by giving transgenders the choice of
registering as others there by dropping the requirement that they declare themselves male or
female.

Challenge 2:
In 2013, in Suresh Koushal and Anr vs Naz Foundation and Others, the SC reversed the Delhi
HC's decision to decriminalise homosexuality, stating that "it was up to the Centre to legislate on
the issue."

On 28 January 2014, the Supreme Court of India dismissed the review petition filed by

the Central Government, the Naz Foundation and several others against its 11 December verdict
on Section 377.[46] The bench explained the ruling by claiming that: "While reading down
Section 377, the High Court overlooked that a minuscule fraction of the country's population
constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past,
less than 200 persons have been prosecuted for committing offence under Section 377, and this
cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."

NATIONAL LEGAL SERVICES AUTHORITY JUDGEMENT 2014

The supreme court of india recognizes transgender as a third gender.regognition of transgender

as a third gender is not a social or a medical issue but a human rights issue’.

Significance of the 2014 verdict the court challenged the dominant view of gender identity.

In a society that has focused on a binary this was revolutionary .

The supreme court directed the state for an ‘affirmative action policy’.

The court recognized that individual experience of gender is one of the most fundamental aspects
of ‘self -determination ,dignity and freedom’.
CHALLENGE 3: On 18 December 2015, Shashi Tharoor, a member of the Indian National
Congress party, introduced a bill for the repeal of Section 377, but it was rejected in the House
by a vote of 71-24.

FINAL HOPE:

On 2 February 2016, the Supreme Court decided to review the criminalisation of homosexual
activity. In August 2017, the Supreme Court unanimously ruled that the right to individual
privacy is an intrinsic and fundamental right under the Indian Constitution. The Court also ruled
that a person's sexual orientation is a privacy issue, giving hopes to LGBT activists that the Court
would soon strike down Section 377.
JUSTICE ARRIVES….
NAVTEJ JOHAR V UNION OF INDIA.
Jump to 2018, and a five-judge SC bench, which included the then-Chief Justice Dipak Misra,
would pass a historic order. The verdict came in a petition by Indian choreographer Navtej Singh
Johar and 11 others challenging the constitutional validity of Section 377. On 6 September 2018,
the Supreme Court issued its verdict.The Court unanimously ruled that Section 377 is
unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and identity,
thus legalising homosexuality in India. The Court explicitly overturned its 2013 judgment.

Let us look at the arguments put forward by the supreme court judges while ruling that
homosexuality is no longer a crime in this country . if we look at the” judgement a strong south
african flavor to the chief justices s.377 judgment, drawing from the sa constitutional courts
vision of transformative constitutionalism” chief justice of india justice dipak Mishra wrote in
his judgement that constitution should be viewed as living document and this constitution should
be in a position to transform the lives of the people the purpose of the constitution is to transform
a society that’s the most beautiful part of this judgment. the second most important part of the
judgement is the principle of non – retrogression of rights which means that as a society when it
has given a certain set of rights and because of these rights the society has reached a certain
standard we cannot take away these rights after that when an right to privacy judgment we gave
right to privacy to the people of this country we cannot now snatch this privacy from LGBT
community so there is this principle of non – retrogression of rights .

the remarks of justice Nariman j. says that fundamental right chapter is like the north star in the
universe of constitutionalism in India so we have to look at everything from the perspective of
this chapter of fundamental rights and if the fundamental rights chapter talks about equality,
non- discrimination dignity then we have to provide all these features to the LGBTQ community
another brilliant point in this judgment is the presumption of constitutionality there is a doctrine
which is followed by the supreme court called presumption of constitutionality that means when
ever parliament makes a law frame a law and this law is challenged in supreme court, sc begins
with the assumption that this law is constitutional law only when it is proven other wise that the
supreme court will strike this law down that means there is always this presumption that laws
made by the parliament are constitutional but supreme court in this judgment said there is no
presumption of constitutionality when laws are made by the colonial foreign regime.

Revoking Section 377 of the Indian Penal Code On September 6th 2018, the Supreme Court of
India delivered a historical verdict decriminalising homosexuality by partially striking down
Section 377 of IPC. The revoking of Section 377 meant that same-sex couples now have the
legal right to cohabit and conduct their personal affairs without any fear of persecution. But we
must note that they are still denied equality of treatment in various aspects. Thus, it is imperative
to take the conversation forward and talk about the various laws that continue to discriminate
against LGBT+ persons. It includes anti-discriminatory laws such as no recognition of same-sex
marriages, no rights for adoption, surrogacy etc. The court rationalised that Section 377 is vague
and does not create intelligible differentia between what is “natural” and what is “unnatural”. It
also curbs freedom of expressing one’s sexual identity, ie. right to freedom of expression as
enshrined under Article 19 of the Indian constitution. It was also emphasised that discrimination
on the basis of sexual orientation is unconstitutional considering it is a natural phenomenon as
proven by scientific and biological facts.

WHAT IS THE CURRENT STATUS OF SECTION 377

Section 377 is not deleted from IPC but section 377 cannot be used to criminalize homosexuality
but section 377 will still apply in case of (bestiality) having sex with animals is unnatural against
the order of nature because animals cannot give consent since it is non- consensual sexual
activity section 377 will apply.
The Supreme Court also directed the Government to take all measures to properly broadcast the
fact that homosexuality is not a criminal offence, to create public awareness and eliminate the
stigma members of the LGBT community face, and to give the police force periodic training to
sensitise them about the issue.
The judgement also included an inbuilt safeguard to ensure that it cannot be revoked again under
the "Doctrine of Progressive Realisation of Rights".
Legal experts have urged the Government to pass legislation reflecting the decision, and frame
laws to allow same-sex marriage, adoption by same-sex couples and inheritance rights.[
in September 2021, the Chennai-based Madras High Court, which has jurisdiction over Tamil
Nadu, ruled that queerphobia was rampant in medical education and directed the medical
institutions and police to revamp their services to support LGBTQ individuals.
On 10 April 2022, The madras High Court directed Tamil Nadu Government to conduct
sensitization of school teachers on LGBT issues. The court also recommended a glossary or
style-sheet to be used by Media for writing about LGBT community. The court asked the Tamil
Nadu Government to adopt the glossary developed by community members till a time it can
come up with its own version.
In the early weeks of January 2023, the leader of the highly influential Hindu group called RSS,
often labelled as a far-right organization that provides grassroots support for the ruling BJP,
backed LGBTQ rights and stated that LGBTQ rights were supported in the native Hindu culture
and history.
INDIAN CONSTITUTION AND LGBT

The idea of Fundamental Rights was first conceptualized within the Bill of Rights of the
American Constitution and has been adopted into the Indian one. The preamble to the
Constitution of India mandates Justice – social, economic, and political, equality of status. In
essence, the Constitution of India is sex blind, that’s to mention, the basic
the premise of equality is predicated on a Constitutional mandate that the sex of an individual is
irrelevant save where the Constitution itself requires special provisions to be made for everyone.

Right to Equality:

Article 14 of the Constitution provides one and allan equal status before the law and an equal
protection of laws within the territory of India. The word „any person‟ here
means every individual, with none discrimination supported any of the category
which includes, caste, creed, religion, sex, etc.
In the case of, National Legal Service Authority V. Union of India, the interpretation of the
word person was widened and was held that Article 14 of the Indian Constitution does not restrict
the word „person‟ and its application only to male or female. Hijras/transgender persons who are
neither male/female fall within the expression „person‟ and, hence, entitled to legal protection of
laws in all spheres of State activity, including employment, healthcare, education as well as
equal civil and citizenship rights, as enjoyed by any other citizen of this country. The transgender
community falls within the purview of the Constitution of India and thereby they are entitled to
all the rights as guaranteed under the same.

Discrimination protections
Article 15 of the Constitution of India states that
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
In the case of Navtej Singh Johar v. Union of India, the Supreme Court ruled that the
Indian Constitution bans discrimination based on sexual orientation via the category of
"sex". Similarly in the case of National Legal Services Authority v. Union of India, the
Supreme Court held that discrimination on the basis of gender identity is constitutionally
prohibited.[
 Gender identity, in our view, is an integral part of sex and no citizen can be
discriminated on the ground of gender identity, including those who identify as third
gender. We, therefore, conclude that discrimination on the basis of sexual orientation or
gender identity includes any discrimination, exclusion, restriction or preference, which
has the effect of nullifying or transposing equality by the law or the equal protection of
laws guaranteed under our Constitution.
Despite these constitutional interpretations, no legislative law has been enacted to ban
discrimination on the basis of sexual orientation in employment since Article 15 only
extended to discrimination from the state or government bodies. However, on 4 February
2021, the Allahabad High Court ruled that firing and discriminating against a person in
employment on the basis of sexual orientation is a violation of Navtej Singh Johar v.
Union of India ruling of the Supreme Court, hence extending the anti-discriminatory
provisions to employment everywhere.In case of physical attacks against LGBT people,
Section 307 (Attempt to murder) or Section 323 (voluntarily causing hurt) of the Indian
Penal Code is used against the perpetrator. In case of hate speech, Section 153 A (Hate
Speech Law) of the code has been previously used. The Allahabad High Court in a
landmark decision in Sultana Mirza v. State of Uttar Pradesh stated that a Constitutional
Court has a duty to monitor and observe the constitutional morality as well as the rights
of the citizens which are under threat only on account of the sexual orientation. In
August, 2018, the National Human Rights Commission of India set up the LGBTI core
group and appointed openly gay politician Harish Iyer in its 15 members committee in a
bid to enforce human rights related legislations pertaining to LGBTQ people and counter
discrimination.
Right to Life and Personal Liberty:

 Article 21 of the Constitution of India reads as follows: Protection of life and personal liberty
– No person shall be deprived of his life or personal liberty except according to procedure
established by law.” Article 21 is the heart and soul of the Indian Constitution, which speaks
of the rights to life and personal liberty. Right to life is one of the basic fundamental rights
and not even the State has the authority to violate or take away that right.
 In the case of, R. Coelho V. State of Tamil Nadu it was stated that, the right to choose one’s
own identity is one of the most essential right under this article to life with dignity. The
transgender communities have a right to dignified life which is one amongst the most
important aspects of Article 21 of the Constitution of India. Recognition of gender identity
provides the popularity of their right to dignity and non-recognition violates the identical,
they need full right to precise and live their life without fear. Also, the proper to reputation
extend to their protection.
Right against Exploitation:

 Various inhuman acts like human trafficking and beggary are declared as an

offence and punishable per The scope of Article 23 of the Constitution of India is extremely
wide because it includes within any type of discrimination which are forbidden. Immoral
activities like prostitution are usually seen down in the society.
 Everyone incorporates a right to non-public development, and this might be secured only
when there exists a right against exploitation which creates a free environment for an
individual. Transgenders are the worst victims of exploitation; due to their degraded
 economic status they indulge into prostitution and other immoral activities and are usually
seen as taboo by the society. The intention behind this Article is to secure independence of a
personal identity by preventing exploitation of men by me.

Transgender Persons (Protection of Rights) Bill, 2019:

Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect
the rights of the Transgender Community by prohibiting discrimination against them with
regards to employment, education. healthcare, access to government or private establishments.
But in the name of empowering the community, the bill further exposes them to institutional
oppression and dehumanises their body and identity. The bill snatches from an individual the
right to determine their sexual orientation which is an integral component of the right to privacy
as pronounced in the (National Legal Services Authority) NALSA judgement. As per the bill, the
change of gender identity in documents can only be done after proof of sex reassignment surgery
which must be certified by the District Magistrate. Another discriminatory aspect of the bill is
that the punishment prescribed in the case of ‘Sexual abuse against any Transgender person’ is
only two years while a similar kind of offence if, happens against women attracts a serious
punishment extending up to 7 years. Thus, stipulating different levels of punishments for the
same nature of crime only on the basis of gender identity is inherently discriminatory, arbitrary
and against the equal protection clause. Although the bill seeks to provide “inclusive education
and opportunities” to the transgender community but fails to lay down any concrete plan to
achieve the same. There are no provisions in relation to providing any scholarships, reservation,
changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and
workplaces for the trans-community.