SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

A STUDY OF THE LGBT RIGHTS IN INDIA

SUBMITTED BY

------SAHIL SINGH------

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DIVISION – ‘B’, PRN – 20010323101
CLASS OF 2020 – 2025, BA LLB SEM - 1
SYMBIOSIS LAW SCHOOL, HYDERABAD
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UNDER THE GUIDANCE OF

DR. SANU RANI PAUL
ASSISTANT PROFESSOR
SYMBIOSIS LAW SCHOOL, HYDERABAD

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 TABLE OF CONTENTS

S. NO. Contents Page

Numbers
1. CHAPTER I 3
Introduction 3
Research Questions 5
Objectives of the Study 5
Significance of the Study 5
Research Methodology 5
Sources of Data 6
Review of Literature 6
Parts of the Study 7
2. CHAPTER II 8
Historical Background 8
3. CHAPTER III 11
International Legal Position on Homosexuality 11
Judicial position on homosexuality 12
The present scenario of LGBT rights in India 15
4. CHAPTER IV 17
Conclusion 17

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 CHAPTER I

INTRODUCTION

Certainly, sexuality is as yet not perceived as a genuine zone for scholastic exploration in our
country. The demographics which are engaging in sexuality for exploration and activity have
been the women’s movement and the same-sex rights movement in India (more popularly
known as the LGBT (lesbian, gay, bisexual, transgender) and, increasingly as the 'queer'
movement). This pair are themselves juvenile and minimal in the fields of academia and
policy-making, the domains in which they are trying to get representation and make a
difference. The two developments have utilized the pedagogical and the society as significant
tools in the explanation of their orientation and this setting has been constructed as much in
the streets as in hypothetical and scholastic information creation sector. Further, this
explanation has been obtained vigorously from the accessible dialects of women's liberation
and sexuality-based developments in the West as the presence of the two developments in the
West went before their conventional arrangement as developments in the still developing
countries. “Both the women's movement and the LGBT one from their inception here have
been accused of being imports from the West, inauthentic and inorganic to the Indian
contexts.”1

Homosexuality is not a mental disease. Homosexuality is as natural as heterosexuality. Indian

constitutional law and other state laws help to secure the rights of LGBT peoples. Judicial
activism and Supreme Court decisions make a path to provide the rights to transgender.
“Since 2014, transgender people in India have been allowed to change their gender without
sex reassignment surgery, and have a constitutional right to register themselves under a third
gender”2

Article 1 of The Universal Declaration of Human Rights states, “All human beings are born
free and equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood”. “The constitutions of India

1
Shashi Motilal, Applied Ethics and Human Rights (2012).

2
Anish Goel, INDIA: A MICROCOSM OF TENSIONS ON LGBT RIGHTS SOUTH ASIA STANDS THE SOUTH ASIA
CHANNEL, https://foreignpolicy.com/:

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guaranteed to protect the basic human rights of all citizens of India and are put into effect by
the courts, subject to certain limitations. When we read Article 14, 15, 16, 17 and 18 of the
Constitution of India that highlight the right to Equality in detail together with Article 1, 2, 3,
7, 12 of Universal Declaration of Human Rights, a ray of hope appears from darkness.” 3.
“The homosexual population is approximately 10% to 13% of the total population of India
which is considerably large but comparatively less.” 4 The attitude of people in our country
and those leading it in the direction of sexual minorities is lamentably homophobic, much
less compassionate and in large part ignorant. “According to numerous LGBT Research
reports the major problems community faced is a problem of marriage, sexual liberty, social
discrimination and identity.”5

On September 6 2018, in the “Navtej Singh Johar & ors versus U.O.I 6. case the Supreme
Court of India decriminalized homosexuality by declaring Section 377 of the Indian Penal
Code unconstitutional.” “The Transgender Persons (Protection of Rights) Bill passed the Lok
Sabha on 17 Dec. 2018 with 27 Amendments, including a controversial clause prohibiting
transgender people from begging, but this bill did not focus on the issues of transgender such
as marriages, adoption, divorce and other succession and property rights of in heritance.”7

3
Sachin Mishra, Human Rights of LGBT Community in India.
4
Rukmini S., Homosexuality in India: What data shows mint (2020),
https://www.livemint.com/Politics/nLQiPpl5UICajLDXETU3EO/Homosexuality-in-India-What-data-
shows.html (last visited Nov 24, 2020).
5
Kiran Bhatia, Redefining the Indian Public Sphere: A Study of the LGBT Rights Movement in India, 7 Journal
of Media Watch (2016).
6
Navtej Singh Johar v Union of India, (2018) 1 SCC 791
7
A Critique Of Transgender Persons (Protection Of Rights) Bill, 2019, Feminism In India (2020),
https://feminisminindia.com/2019/08/05/critique-transgender-persons-protection-of-rights-bill-2019/ (last
visited Nov 24, 2020).

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 RESEARCH QUESTIONS

The researcher has tried to answer the following questions in the paper:

 What is international legal position on homosexuality?

 What is the legal position of homosexuality with reference to section 377?
 What is the present scenario of LGBT rights in India?

OBJECTIVES OF THE RESEARCH

This research paper focuses not only on the current scenario LGBT rights in India but
also on the historical judicial aspect of the same. Apart from that the paper explores
i. International legal position on homosexuality
ii. Judicial position on homosexuality with reference to section 377 of the Indian Penal
Code
iii. The existing legal framework protecting the rights of LGBT

SIGNIFICANCE OF THE STUDY

The paper will help the reader better understand the purview of LGBT rights in India and
around the world.

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 RESEARCH METHODOLOGY

The research methodology used is doctrinal in nature. It involves referring to and studying
existing sources of data to put together a research paper. The researcher believes that the
topic selected for the paper requisites the chosen methodology as it depends majorly on
existing laws and its impacts on the community.

SOURCES OF DATA

To put together this research paper, both primary and secondary sources of data have been
utilised. Primary sources comprising of case laws, Constitution and Acts have been used.
Secondary sources consisting of various journals, articles and books have been referred to.

REVIEW OF LITERATURE

The review of literature in this paper is case-law centric. This is so that we can examine the
issue based on the decisions and verdict of previously available judicial precedents.

The case of Naz v Government of NCT Delhi8 can be said to be the foundation of
establishment of LGBT rights in India. On 2 nd July,2009 the High Court of Delhi in a two
bench coram ruled, for the first time in the judicial history of our country, that homosexuality
is to be decriminalised. Naz, an NGO based out of Delhi, filed a Public Interest Litigation in
the Delhi High Court and claimed that section 377 of the Indian Penal Code violated Article
14,15 and 16 of the Indian Constitution and hence was unconstitutional.

8
160(2009 )DLT 277 Naz Foundation vs. Government of NCT and Ors. (02.07.2009 - DELHC)
:MANU/DE/0869/2009

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The NALSA judgement9 in 2014 is a fundamental case in the recognition of the LGBT
community as rightful citizens of the country. For the first time in the judicial history of our
country transgender people were recognized as citizens of our country. Fundamental rights
were extended to them like they are to all citizens of the country. The court provided a
comprehensive set of guidelines to the States to remedy the marginalisation suffered by the
LGBT folks.

The case of Navtej Singh Johar v U.O.I 10 is arguably the most important judgement in the
advancement of the LGBT rights in India. The five bench coram ruled that homosexuality is
not a crime and stuck down section 377 to the extent that sex between two consenting adults
is not a crime.

PARTS OF THE STUDY

The paper is divided into four chapters. The first chapter deals with the introductory part of
the paper. It contains what questions the paper answers, what are the objectives of the
researcher while writing this paper, what is the significance of this study and a review of
existing literature on the topic chosen.

The second chapter deals with the historical aspect of the topic. Knowing the history is a
prerequisite of any research paper. Without knowing the background of the subject, it is not
possible to conduct a good quality research.

The third chapter answers the questions raised in the first chapter. This is the body of
research paper.

The last chapter includes recommendations and references.

CHAPTER II
9
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
10
Supra note 6

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 HISTORICAL BACKGROUND

The women's movement in India has never talked about sexuality in the way the Western
women's movement did. Sexuality as pleasure was a narrative that dominated second-wave
feminism in the West; here sexuality mainly almost exhaustively, articulated itself as
violence. While in the West the LGB'I' movement, emerging with and out of the women's
movement, foregrounded the idea of pleasure, the LGBT movement here really came into
existence piggybacking on the AIDS crisis and articulated itself necessarily in the languages
of crisis, violence and remedial action, not pleasure. let us look at these two moments
somewhat more closely to delineate the ways in which concerns around sexuality manifested
themselves in India.

The starting point of the formal women's movement in India, it is acceptance by now, was the
agitation against the systemic and systematic violence women, most forcefully represented by
the Mathura rape case where a tribal woman was raped in a police station by police officials.
The variety of other forms of violence upon women's bodies and minds from dowry, sati, the
killing of the girl child and domestic violence to the violent and invasive of anti-reproductive
technologies to control women's bodies by the state and much more - the pervasive nature of
violence gave Indian feminists very little scope to speak of sexuality in any other register
than violence. This is not to say that sexuality was not spoken about in other ways; it is just
that the dominant discourse was around violence. The academic discourse - and it was really
a very rich and theoretically sophisticated body of academic work done by a certain
generation of feminists, among whom can be counted Uma Chakravarti, Sudesh Vaid, Tanika
Sarkar and Kum-kum Sangari , showed sexuality as embedded in a variety of other
discourses and contexts but was not easily understandable nor particularly acceptable to the
state because acknowledging this work would also amount to the state acknowledging its own
complicity with the violence upon women’s sexualities and lives.

As the language of feminism became more and more co-opted by the state, the possibility of
sexuality becoming a serious analytic variable in the re-organisation of society along feminist
lines receded more and more into the background. Unlike in the West, where the lesbian
movement emerged from the women’s movement and offered a very powerful critique of

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heteronormativity using sexuality as its fulcrum there was no lesbian movement here. There
were lesbians, to be sure, but they chose to be silent and stay with the heterosexual confines
of the Indian women’s movement. The LGBT movements which in the West grew alongside
as part of several other political and independent movements like in the US the civil rights
movement, the anti-Vietnam war movement - was never an independent political movement
here. It emerged only in the 1990s as part of the anti-AIDS funding waves, as indicated
earlier, and spoke in a political language if it speaks in a political language at all, quite
different from that of the LGBT movement in the West.

The women's movement in India today has begun to talk a language of sexuality outside of
violence and, needless to say, as a result it seems contrived, borrowed as it is from the result
of processes in Western feminism that have not occurred here and not emerging organically
from the contexts of Indian feminist struggles. In the West, by the second wave, feminists
were split, especially in the US between the sex-positive feminists and the sexuality-as-
violence feminists, around that famous conference at Barnard College in 1982. The sex-
positive feminists saw sexuality as pleasure, supported pornography and women’s sexual
agency and the sexuality-as-violence feminists were completely anti-pornography anti-
complex readings of what constitutes women’s pleasure, seeing most, if not all, of
masculinity as violent and misogynist and had no qualms about joining hands with right-wing
forces to ban pornography and advocate forms of censorship.

In India, feminists have had no such battle and remained mostly silent on the question of
sexuality in general and hostile on the question of lesbian sexuality in particular with a
homophobia that showed that Indian feminism had little or no analytic depth or self-
reflexivity on the question of sexual desire as basis for social organizing and as critique. Even
the rich body of academic work on feminism by scholars named above, much richer than
activist (especially in its state form) feminism, did not engage with the debate over sexual
desire vs. sexual violence as the feminist subject was not ever articulated in India in terms of
these two axes with sexual agency as the base.

Younger generations of feminists in India have simply adopted sex-positive feminism's

language in recent theorisations of sexuality and sexual agency which then makes it seem that
Indian feminism has simply jumped over knotty problem of how to conceptualise sexuality
but has not needed the necessary processual analysis that feminists from the two positions in
Western feminism on sexuality did go through, but that we have not.

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CHAPTER III

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 INTERNATIONAL LEGAL POSITION ON HOMOSEXUALITY

The views of the world are visibly divided on the issues of Homosexuality. There are many
countries in world that severely criminalized sexual activities between Homosexuals. The
International Lesbian, Gay, Bisexual, Trans and Intersex Association or ILGA lists 81
countries with criminal laws against consensual sexual activities by Lesbian, Gay, bisexual,
transgender or intersex people (LGBTIs). Among those 81 that criminalized consensual
sexual activities between adult homosexuals India, Pakistan, Sri Lanka, Bangladesh, Saudi
Arabia, Zimbabwe, Egypt, Iran, UAE, Indonesia and Russia are major countries.

The European scenario is much different than what could be witnessed in other parts of the
world. Importantly nowhere in Europe consensual sexual activities between adult
homosexuals are criminalized. A right to have sex is a fundamental right, which is essentially
a part of “Right to Life”. A normal human being requires food, clothing, shelter and sex to
live a life like a human. Denying fundamental sexual rights is an act of cruelty, and therefore,
no parliament, no legislature; no country should have any moral right to annul the right to
sex. LGBT rights are considered human rights and civil rights; therefore, it is a duty of every
civilized nation to protect them. According to Abraham Maslow, physiological needs are
basic, fundamental needs. In his paper “A theory of motivation” Maslow established a theory
of hierarchy of needs in a pyramid form in which more basic, fundamental needs are placed
at the bottom which includes breathing, food, water, sex, sleep, homeostasis and excretion.
Hence importance of sex in life is invaluable. Therefore, the stand taken by European nations
which is in confirmation of the laws of nature to decriminalize the consensual sexual
activities between adult homosexuals should be appreciated. Many European countries have
struck down laws similar with Sec. 377 of Indian Penal Code that criminalize same-sex
sexual activities on the grounds of either fundamental human dignity, equality, right to
privacy or all of them. In its 1994 decision in Toonen v. Australia, The UN Human Rights
Committee, which is responsible for the International Covenant on Civil and Political Rights
(ICCPR), officially declared that such laws are in violation of human rights law.

JUDICIAL POSITION ON HOMOSEXUALITY

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Section 377 of I.P.C. is the basis of the Legal Position of Homosexuality. Section 377, IPC
reads as: “377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this section.”

Lacking precise definition, the wordings “carnal intercourse against the order of nature” was
always left to judicial interpretations. A part of Sec. 377 that deals with Animal cruelty (by
way of sexual intercourse with animal by man or a woman) is justifiable simply because
inter-species sex can never be justified. What separates man from animal is his ability of
“thinking” and “reasoning”. Animal sexuality is instinctive and somewhat mechanistic,
whereas human sexuality is much more evolved and multidimensional i.e. the purpose of
human sexual behavior is not limited to procreation. Therefore, what is natural for animals
may not be natural for humans, and what is natural for humans cannot be subjected to the
interpretation by the other humans (blessed with their own set of reasoning and cultural
prejudices)? Homosexuality is as natural as Heterosexuality. Many think that nature and
nurture both play complex roles; most people experience little or no sense of choice about
their sexual orientation. The latest research in the field of genetics and sexuality proved that
Homosexuality is genetic and man has no role to play in making choice about sexual
orientation/preference. One cannot become Gay, Lesbian, Bisexual or heterosexual by choice.
Sec. 377 has been around for more than 150 years now. When the section was introduced as a
penal provision in Indian Penal Code, 1860, medical science was still in very infant stage.
That was a time when Homosexuality considered as a psychological disorder. As medical
science progressed, new views and theories about the roots and possible causes of
homosexual behavior came to the light. The medical community has now universally
accepted that Homosexuality is not a form of mental illness. Therefore, the meaning reflected
through the wordings mentioned in archaic penal provision of Sec. 377 of Indian Penal Code
is unscientific, irrelevant and outdated. Sexual practices mentioned in sec. 377 reflect the
natural sexual personality of homosexual men (Gay). By criminalizing homosexual acts
between MSM (Men who have sex with Men) state directly violates fundamental rights of its

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own citizens and brands them as criminals with disastrous consequences on their personal
and social lives thereby damaging their human dignity.

JUDICIAL HISTORY OF LGBT RIGHTS

To examine the stand of Indian Judiciary on the issues of LGBT Rights in the shadow of the
constitutionality of Sec. 377 of Indian Penal Code, it is important to examine a case of Naz
Foundation vs. Government of NCT of Delhi. In September 2001, NAZ FOUNDATION an
NGO involved with activism and HIV awareness among the Gay and MSM (Male who have
sex with Male) community, filed a Public Interest Litigation in the Delhi High Court in an
attempt to strike down Section 377’s unconstitutional criminalization of private consensual
sexual activities that goes “against the order of nature.” on July 2, 2009, the Delhi High Court
pronounced that Sec. 377 should be read down to exclude consensual sex between adults in
private. Justice A.P.Shah and Justice S.Muralidhar ruled,” We declare that Section 377 IPC,
insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21,
14 and 15 of the Constitution”. The Naz Foundation Judgment was historical Judgment that
not only liberated eternally trapped consciousness of LGBT community but also gave wings
to their hopes. The Judgment was important from many aspects. It was for the very first time
the High Court stood strong in defense of the ideals of Natural Law on Sexuality. As a result
of this Judgment, the interpretation of section 377 had changed. In Naz Foundation case; the
demand to scrap the entire sec. 377 was never raised, but what was demanded was merely
decriminalization of consensual sexual activities between consenting adults in a private place,
hence- the demand was to restore right to privacy, right to dignity and health under Article
21, equal protection of law and non-discrimination under Article 14 and 15 and freedom of
expression under Article 19. The Naz Foundation Judgment brought joy, bliss, light and
hopes in life of Homosexuals, however, their joy did not last longer. Naz Foundation
Judgment was not taken easily by Right wing extremists and Religious fundamentalists.
Immediately an appeal was preferred before Hon’ble Supreme Court of India10. 7
Intervention Applications were also filed. The Appeal against Division Bench Judgment of
Delhi High Court was allowed. The Review Petition that was arising out of the final
Judgment of Supreme court in Appeal against the Judgment of Delhi court in Naz Foundation
Case was rejected by Supreme Court of India. The question was not whether homosexuality

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is a crime under Sec. 377 of IPC. The question was whether Sec 377 is consistent with the
Constitution of India. According to Delhi High Court, Sec. 377 is totally unconstitutional that
directly violates the fundamental rights of LGBT community, however, on the other hand
according to Supreme Court of India Sec. 377 of Indian Penal Code, 1860 is constitutional,
hence its presence does not result in violation of Fundamental Rights of sexual minority
community (LGBT). The “Final Judgment” of Hon’ble Supreme court of India would remain
in force unless it is overruled by the larger bench. The onus now is on Government to show
its character and democratic attitude by taking a step ahead to repeal the draconian
suppressive, unconstitutional and unjustified part of Sec. 377 of Indian Penal Code, 1860 that
criminalize most natural sexual activities of innocent souls who are as human as every other
human being.

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 PRESENT SCENARIO OF LGBT RIGHTS

15th April, 2014 was not an ordinary day. Something extraordinary happened on the summer
of 15th April that blown life in the “constitutionally” dead members of sexual minority of
India. It was a day that brought light and bliss to the life of “Hijaras” (eunuchs, transgender).
For the very first time in history of India the “THIRD GENDER” was officially recognized.
In a landmark judgment delivered in National Legal Services Authority vs. Union of India 20
the Hon’ble Supreme Court of India created the “third gender” status for hijras or
transgender. Earlier, while recording their gender, they were forced to write either male or a
female, now after this judgment they can officially record their gender as “third gender”. The
Supreme Court has also directed the Government of India to treat members of “third gender”
as socially and economically backward. The Supreme Court further opined that “absence of
law recognizing hijras as third gender could not be continued as a ground to discriminate
them in availing equal opportunities in education and employment”. The third gender people
will now be categorized as OBC (Other Backward Class), which would help them to avail the
facilities of reservations in government jobs and educational institutions. The aforesaid
judgment, in true sense, defended the ideals enshrined in the constitution of India by its
founding fathers. The verdict though pertains to only eunuchs or transgender people; it is
indeed a ray of wisdom that at last penetrated into the dark chambers of the mystery of
human sexuality to illuminate the dark age of reason. 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. Shashi Tharoor is planning to re-
introduce the bill. On 2 February 2016, the Supreme Court decided to review the
criminalization 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. In January 2018,
the Supreme Court agreed to refer the question of Section 377's validity to a large bench, and
heard several petitions on 1 May 2018. In response to the court's request for its position on
the petitions, the Government announced that it would not oppose the petitions, and would
leave the case "to the wisdom of the court". A hearing began on 10 July 2018, with a verdict

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expected before October 2018. Activists view the case as the most significant and "greatest
breakthrough for gay rights since the country's independence", and it could have far-reaching
implications for other Commonwealth countries that still outlaw homosexuality. 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". 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 legalizing homosexuality in India.

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 sensitize them about the issue. The judgment also included an inbuilt safeguard to
ensure that it cannot be revoked again under the "Doctrine of Progressive Realization 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.

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 CHAPTER IV

CONCLUSION

Homosexuality is not a mental disease. The traces of homosexual tendencies can be found in
animals too. This scientific research proves that Homosexuality is as natural as
heterosexuality. The command of nature must be obeyed. The situation of LGBT community
is worst in India. The Homosexuals are still subjected to mockery, harassment and violence.
The European countries have recognized and protected the sexual rights of LGBT
community. The stand of UN Human Rights Council must be appreciated as the council
successfully passed resolutions recognizing and protecting rights of LGBT community that
created positive impact all over the world. The problem lies in the mind. It is important to
spread awareness about the existence of LGBT community in society. It is important to
familiarize and sensitize heterosexuals with the issues, problems and scientific truth of
Homosexual community. Human Rights are Natural Rights; they are inalienable,
indestructible rights that bestowed upon man since the moment of birth. While hearing an
appeal, Supreme Court in its verdict in Naz Foundation case overruled the Delhi High Court
Judgment only to re-criminalize private sexual activities between homosexuals. It was a
biggest set-back to the movement of LGBT RIGHTS. A single decision severely affected the
Natural Rights of entire community, hence caused an irreparable damage to self-esteem and
self-respect of the members of sexual minority. On 6 September 2018, in the NAVTEJ
SINGH JOHAR & ors versus U.O.I. case the Supreme Court of India decriminalized
homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional. Since
2014, transgender people in India have been allowed to change their gender without sex
reassignment surgery, and have a constitutional right to register themselves under a third
gender. Additionally, some states protect hijras, a traditional third gender population in South
Asia, through housing programmes, welfare benefits, pension schemes, free surgeries in
government hospitals and others programmes designed to assist them. They are also human

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being and such treatment should be provided by the state to these people. In many instances’
LGBT individuals are not legally protected from abusive and discriminatory actions.

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