EXTENSIVE REPORT

LGBTQA+ Rights in India

Introduction
Until recent year , Under Section 377 of the Indian Penal Code, same sex marriage and
relationship were considered as a criminal act in India. Under this section 377 '' carnal
intercourse is against the order of nature''.
But in the year of 2018, this law was overturned by the Supreme Court in a landmark
judgment. The Apex Court in this judgment recognized the rights of LGBTQA+
individual by striking down the discriminatory law.
However, despite such historical achievement, the discrimination and marginalization of
the LGBTQA+ community still remains prevalent in India.

Background
● The World considered all homosexual activities ''against the order of nature",
hence all such acts were criminalized. In India such acts were criminalized under
section 377 of the Indian Penal Code.
● The third sex were granted the right to vote in the year 1994.

● In 2014, the apex court of India ruled that the transgender people should be
treated as the third category of gender.
● The right to privacy protects the sexual orientation of an individual.

● In the year 2018 , The Supreme Court struck down section 377 of the Indian
Penal code.

Challenges faced by LGBTQA+ Community

1. Discrimination- More often than not members of the LGBTQA+ community face
discrimination in all spheres of their lives, like the workplace, public spaces, housing
and the society in general.
This makes it difficult for them to live a happy and healthy life, they are often mistreated
and diminished in society making them outcast and feel unacceptable. They also face
discrimination in place of job opportunities leading them to live their lives in poverty and
lack of basis necessities.

2. Lack of representation - The member of the the LGBTQA+ community are very
often not represented in the media and mainstream news channels, politics and
government. They are often marginalized and made to feel left out. The mainstream
news channels and media do not provide enough coverage to the members of the
LGBTQA+ community which makes it rather hard to voice out their opinion and
thoughts.
This lack of representation leads to lack of acceptance from the community and the
society.

3. Poverty - The members of the LGBTQA+ community are made to live in poverty due
to discrimination in workplaces and marginalization in society. They are often denied
access to jobs and discriminated against just on the basis of their sexual orientation
which leads them to living their life in poverty. Many times they are denied basic
necessities needed for day to day functioning.

4. Homeless - Majority of such individuals identifying as members of the LGBTQA+

community are not accepted even by their own family. They are made to feel
unwelcome or are made to leave their house causing them to be homeless.

What was section 377 of Indian Penal Code?

Under section 377 of the Indian Penal Code 1860 it is states that " Whoever voluntarily
has carnal intercourse against the order of nature with any man,woman or animal shall
be punished with imprisonment of life or with imprisonment of either description for a
term which may extend to 10 years, and shall also be liable fine" .

Section 377 criminalized the act of private consensual homosexual relations among the
adults. This was a law that was against the notion of equality and justice to all human
kinds and hence needed to be struck down.
Even some of the heterosexual acts that were considered to be "against the order of
nature" were considered as an offense under this section.
In 2018, the apex court of India passed a landmark judgment ruling that this particular
section of the Indian Penal Code was not justified and against the basic nature of
human equality.
Hence, section 377 was amended to be only applicable to non-consensual sexual acts,
sexual acts with minors which are still considered as criminal offenses and are
punishable before the court of law.

Case Laws/ Judgements

This section was challenged in the case of Suresh kaushal and Anr Vs. NAZ
Foundation & Ors. It was stated that this section violates Article 14,15 and 21 of the
Indian Constitution.
The Supreme Court in this case passed a very vague judgement stating that the
Parliament should be responsible to decriminalize the act of homosexuality instead of
the court. The court has only the authority to do so if it is proved beyond reasonable
doubts that the law infringes constitutional provisions.
Further, the court highlighted that because in the last 150 years less than 200 cases
have been registered on the same therefore it can not be said that section 377 is
violation of Article 14,15 and 21.
This same judgment was challenged in the case of Navtej singh vs Union of India AIR
2018 SC. It was one of the landmark judgments of the Supreme Court which gave equal
rights to the LGBTQA+ community on the view that every person deserves equal rights
and respect as any other individual without getting discriminated against.
Thus in September 2018, the Supreme Court passed a judgment leading to striking
down of section 377 of the Indian Penal Code. The court overruled the judgment in
Suresh Kaushal case and declared section 377 as unconstitutional as it violates Article
14,15 and 21 of the Indian Constitution.

Some other laws relating to LGBTQA+

Transgender persons (protection of rights ) Act,2019

The parliament passed The transgender persons (protection of rights) bill in 2019. The
Rajya Sabha passed it on 26th November 2019 and it was passed by the Lok Sabha on
5th August 2019.
The main purpose of The Transgender Persons (protection of rights) act is that it seeks
to recognize the identity of an transgender person by recognizing their rights and
prohibiting discrimination in the field of education , healthcare, holding or disposing of
property , employment and holding public or private office and access to and use of
public services and benefits.

Features of the Law

● The Law specifies the definition of a Transgender person and intersex variation
has been made inclusive of male and females, even if the person has not
undergone any therapy such as hormone therapy, sex reassignment procedure
or any other surgeries.

● The Law strictly prohibits discrimination faced by the transgender community in

everyday life at educational or professional level or on healthcare and any other
level and public facilities.
 ● This Law also helps them in reinforcing some basic rights such as right to
movement, right to property, or right to holding offices which were earlier denied
to them.

● This Law administers the rights to a gender identity and it also further casts a
responsibility on the district magistrate to issue the certificate of identity as a transgender
person, without medical assessment.

● This law specifies the requirement that every establishment dealing in such
subject matter shall create a specific designation of a complainant officer.

● The law also provides that every Transgender community shall have an
establishment for the surveillance centers dealing with HIV and AIDS. This
facilities should also have healthcare systems relating to hormone therapy etc.

● This Law also provides for the establishment of the National Council for
Transgender persons (NCT). The sole purpose for the constitution of such
institutions is to guide the government officials in formulation of new policies and
redressal of grievances.

● Offences such as forcing transgender person in labor induced work, or refusing

accessibility to basic public facilities, mental , emotional , physical and sexual
abuse or violence and other related offences.

Conclusion
India still does not recognize the rights of same-sex marriage or civil unions, though
such couples has the right to live as Live-in-couple as per the decision of The Supreme
Court of India in the case of Deepika singh Vs Central Administrative Tribunal in August
2022.
In October 2017, a group of citizens proposed the draft of new Uniform Civil Courts that
legalized same- sex marriages to the Law commission of India.

Also Article 15 of the Indian Constitution states that;-

prohibition of discrimination on grounds of religion,race ,caste,sex or place of
birth.
Despite all the constitutional interpretation, no proper legislative law has been
enacted to ban discrimination on the basis of sexual orientation of an individual.

The supreme court of India redirected the government of India to treat such members of
the LGBTQA+ community as "Third Gender". The Apex Court also specified that the
Government should make proper policies for the LGBTQA+ community keeping in mind
Article 15(2) and Article 16(4) richly specifies the right to equal opportunity in the field of
education and right to equal opportunity in the field of employment.
The Third gender were placed under the category of Other Backward Classes (OBC)
and were also offered the benefit of reservation in government jobs and educational
institutions. The court also took into account that the difference between one's birth
gender and identity is not essentially a pathological condition.

Apart from all this , the LGBTQA+ community still faces several bouts of discrimination
in our day to day life. They face a lot of problems only for the sole reason that they have
a different gender identity. They face harassment not only at work places but also from
society in general in both physical or emotional ways . They still need to justify
themselves just because of their gender attractions. This creates a lot of pressure not
only on their health but also on their mental health.
The rights given in our constitution are very specific that all the rights mentioned are to
be enjoyed by people of all caste, religion or sex.

Reference
LegalserviceIndia.com
wikipedia.com
blog.ipleaders.com