15th of August 2022 marks the 75th year of India's independence from British rule. Throughout these years India had left no stone unturned to enhance the culture, and life of the people of the nation. The development of the LGBTQ community is no exception. This essay will focus on the evolution of the LGBTQ community's rights in India.
HISTORICAL BACKGROUND OF THE LGBTQ COMMUNITY
Hindu scriptures: Third Genders are acknowledged in Hinduism. There are characters in Mahabharata who, according to some epics, change gender such as “Sikhandi”, which is sometimes born as female but identifies as male and eventually marries a woman. The hijras worship “Bahuchara Mata” the goddess of fertility. The Nāradasmṛti and Sushruta Samhita are two important Sanskrit text relating to dharma and medicine, also respectfully declares homosexuality as unchangeable and forbids homosexuals to marry the opposite sex.
Another, Sanskrit text “Kama Sutra” on human sexual behaviours uses the term “tritiya-prakriti” which define men with homosexual desires and their practices in great detail, it also describes lesbians, bisexual, transgender, and intersex people.
Devdutt Pattanaik summarizes the place of homosexuality in Hindu literature as follows: “Though not part of the mainstream, its existence was acknowledged but not approved.”
British Empire:
The 200 years of British rule led to many horrendous events. For instance: division among the people, famines due to British mismanagement, ill-treatment of the people, unfair tax practices, and a lot more. Even the law was hindered by them; the Britishers criminalised all consensual ‘homosexual conduct’ by introducing section 377 in the Indian Penal Court in 1861. “However, criminalising homosexuality reflected European morality based on religious beliefs which were primarily Christian beliefs, more than Indian instincts.” Of this very law, the LGBTQ community in India was enduring agony for years, until recently.EVOLUTION OF LGBTQ RIGHTS IN INDIA
The 6th of September was an extraordinary day to witness; a historic event took place that came as a ray of hope to the members of the LGBTQ community, who were subjected to centuries of agony. The Supreme Court of India finally delivered a verdict decriminalizing homosexuality by partially striking down Section 377 of the IPC. The LGBTQ community was in a state of euphoria across the country, enjoying their victory against the 200-year-old British-era law. To summarise the statement made by Justice Indu Malhotra the 50-page verdict that reads as “History owes an apology to the members of the community and their families, for delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. There were many landmark judgments that laid the foundation of the evolution of LGBTQ rights in India two such judgments were made in the case of K.S. Puttaswamy v Union of India (2017) and Navtej Singh Johar v Union of India.
K.S. Puttaswamy v Union of India (2017):
In the KS Puttuswamy case, while discussing on the validity of aadhar scheme, the Court discussed the issue of the right to privacy. While holding that right to privacy is the fundamental right, the Court observed that sexual orientation additionally falls in the wide ambit of the right to privacy. Puttaswamy decision notes also registered the criticism about the minims hypothesis principle used in the Koushal judgment and stated that the minuscule population of LGBT+ cannot be ground to deprive them of the basic fundamental rights and such curtailment of the fundamental right cannot be held tolerable even when a few, as opposed to a large number of people, are subjected to hostile treatment. The superb courtroom’s ruling on the right of privacy as an inherent fundamental proper under Article 21 within the Indian charter, sparked hopes amongst the queer community that the court docket could quickly strike down section 377.
Navtej Singh Johar v Union of India:
This case overruled the judgment of the Delhi High Court in 2013 where homosexuals were again considered criminals. The country was taken by storm with increasing numbers of LGBTQ rights protests including popular names such as hotelier Keshav Suri, and dancer Navtej Singh Johar and many more came forward, furthermore filing a petition to the supreme court challenging the constitutionality of IPC section 377. The court eventually gave its verdict on the sixth of September 2018 and it can be summarised as follows:
The court unanimously dominated that section 377 is unconstitutional as it infringes the essential rights of intimacy, autonomy, and identification. And decriminalized homosexuality through analyzing down segment 377 to exclude consensual intercourse between adults of identical intercourse/gender.
The court docket rationalized that phase 377 is indistinct and no longer create intelligible differentia between what's “natural” and what is “unnatural”. It also curbs the freedom of expressing one’s sexual identification, i.e. the right to freedom of expression as enshrined under Article 19 of the Indian constitution.
The court docket similarly opined that sexual orientation is an inherent part of self-identification and invalidating the same is denying the right to lifestyles. The truth that they constitute a minuscule phase of the populace cannot be a valid justification for disclaiming this right.
The ideal court additionally directed the authorities to create a public focus concerning LGBT rights and to cast off the stigma surrounding LGBT people. The judges elaborated on the troubles surrounding mental fitness, dignity, privacy, right to self-dedication, and transgender humans.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
The Transgender Persons (Protection of Rights) Bill, 2019 was enacted to protect the rights of the Transgender community via prohibiting discrimination in opposition to them approximately employment, and training. Healthcare, get entry to the government or non-public institutions. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanizes their frame and identification.
The Trans network in India has vehemently rejected the bill bringing up the following provisions of the bill as they infringe on their essential rights and do now not comply with the NALSA judgment.
The bill snatches from an individual the proper to determine his/her sexual orientation that's an integral element of the proper to privateness as suggested inside the NALSA judgment. As in keeping with the bill, the alternative of gender identity in files can most effectively be performed after proof of intercourse reassignment surgical treatment which ought to be licensed by means of the District magistrate. This takes far from the Trans community the simple human right of autonomy and privacy and similarly exposes them to harassment at the palms of authorities.
Every other discriminatory thing of the invoice is that the punishment prescribed inside the case of ‘ Sexual abuse towards Transgender’ is most effective of two years at the same time as a comparable form of offense if, took place in opposition to ladies attracts a critical punishment extending as much as 7 years. As a consequence, stipulating exceptional degrees of punishments for the same nature of crime simplest based totally on gender identity is inherently discriminatory, arbitrary, and in opposition to the identical protection clause.
The bill is also worth being criticized because the bill erroneously neglects the viciousness and atrocities that transgender come upon within their family. The law disentitles them from leaving their households and joining the Trans network consequently infringing their proper to be part of any affiliation and proper to movement. The simplest recourse to be had by the Trans community in case of family violence is the rehabilitation facilities.
Despite the fact that the bill seeks to provide “inclusive education and opportunities” to the transgender community, however, fails to put down any concrete plan to achieve the same. There are no provisions approximately providing any scholarships, or reservations, converting the curriculum to make it LGBT+ inclusive, or ensuring safe inclusive schools and places of work for the Trans community.
Consequently, it can be concluded that on the only hand in which the courts are taking modern steps to empower and uphold the rights of the LGBTQIA+ network, on the other hand, the legislature is invalidating the equal rights. It's far excessive time that the government need to acknowledge and frame legal guidelines by way of the landmark judgment else the LGBTQ community will maintain to stand setbacks in their battle to have the identical rights as the ones to be had to heterosexual human beings.
CONCLUSION
India is among the 28th countries to legalise homosexuality, each year we witness a large number of pride parades, celebrating and accepting one’s sexuality. People are becoming more verbal, and confident in coming out with their sexual identity. Transgender people are leaving their success stories as an inspiration to the upcoming generations. Despite all the shortcomings, the condition of the LGBTQ community is improving by leaps and bounds. The judiciary along with the legislative are trying their best to develop further. Society’s role here is to be progressive about the LGBTQ community, not treat them indifferently furthermore support them. Together we can make a bigger change and a better world.