LGBTQ+ Rights in India After Section 377

Jul 18

5 min read

AUTHOR : ADEENA KHAN

Introduction

Section 377‘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.’

Section 377 was introduced in 1860 by the British colonial government. Due to the broad definition, it gave the British colonial government the opportunity to target minorities, harass and publicly shame the people. Thus, effectively making homosexuality as an inherently criminal and unnatural state. As this law came from old Victorian morals, it had no place in a diverse country like India. But this law persisted long after independence, with majority of the outcry against it starting in the 21st century.

Timeline

1. Naz Foundation Govt. v. NCT of Delhi

The petitioner’s argument was that Section 377 of the IPC violated fundamental rights under the constitution, i.e. the right to life, right to health, right to equality, right to freedom of expression, right to privacy and dignity.
The court ruled in favour of the petitioners, the High Court holding that Section 377 of IPC does, in fact, violate the fundamental rights allowed by the Constitution by imposing restrictions unreasonably over two consenting adults.

2. Suresh Kumar Koushal vs. Naz Foundation

The Supreme Court re-criminalized homosexuality on 11th December 2013 by overturning the decision made by the High Court in the Naz Foundation case.
The bench held that homosexuals were a minority and thus did not deserve protections by the Constitution, and that Section 377 did not go against the Constitution.
Due to this decision, there was a major uproar and criticism against the Supreme Court’s judgement of erasing basic human rights of homosexuals. Thus, bringing about an uprise in public discussions regarding LGBTQ+ rights.

3. National Legal Services Authority v. Union of India

The Supreme Court created the ‘third gender’ status for transgenders. This laid down the legal framework to guarantee basic human rights for the transgender community, such as education, dignity, privacy, etc.
Following this judgement, the transgender community had the right of changing gender without going through sex reassignment surgeries and had the constitutional rights to identify and register as a third gender.

4. Navtej Singh Jonar v. Union of India

The petitioners once again argued against Section 377, saying that it violated constitutional rights.
The Court gave its verdict on 6th September 2018, agreeing that Section 377 infringed on the basic fundamental rights provided by the Constitution and decriminalized homosexuality by removing intercourse between consenting adults of same sex or gender.
The Supreme Court held Section 377 to be ambiguous and did not draw a clear line of demarcation of what is "natural" and "unnatural" and thus encroached upon the freedom of expression under Article 19 of the Constitution.
The Court reiterated further that sexual orientation is a fundamental aspect of personal identity, and denial to recognize it would be a brazen violation of the right to life and dignity under Article 21.
The premise on which the LGBTQ+ community is a minority group that forms a small segment of society, the Court held, could never be the reason to withhold them considerable constitutional rights.
The Court heavily criticized the earlier Suresh Koushal judgment as irrational, arbitrary, and manifestly unconstitutional.
The Court also reiterated the fact that sexual orientation-based discrimination was unconstitutional, especially in view of the fact that homosexuality is a natural phenomenon based on evidence through science and biology.
Finally, the Court instructed the government to take steps to educate people about LGBTQ+ rights and reduce stigma in society. The ruling also mentioned broader issues regarding mental health, privacy, dignity, the right of self-determination, and the fulfillment of transgender individuals as equal and full citizens.

Transgender Rights

The Transgender Persons (Protection of Rights) Act, 2019 was enacted with the proclaimed aim of protecting the rights of trans persons and against discrimination in education, employment, healthcare, and access to public and private spaces. But for all its proclaimed aims, the Act has been internationally criticized for failing to adhere to the letter and spirit of the Supreme Court's decision in NALSA v. Union of India (2014) and institutionalized restraints and systemized exclusion.

Most contentious perhaps is the fact that the Act deprives an individual of the right of self-identification. This is contrary to the NALSA judgment, which reaffirmed gender identity to be a matter of personal choice and not subject to external verification. The Act instead requires individuals to undergo sex reassignment surgery and obtain a certificate issued by a District Magistrate in order to change their gender identity on documents. This is not just a paternalistic and intrusive measure but also exposes transgender persons to administrative harassment and withholds from them the fundamental right of privacy, dignity, and control over their bodies under Article 21.

The other serious concern is the discriminatory penal provisions under the Act. If sexual abuse is committed against transgender individuals, the penalty is just two years, whereas the same offense against cisgender women is punishable for seven years or more under regular criminal law. This distinction is arbitrary, discriminatory, and opposite to the assurance of equal protection under Article 14 of the Constitution to discriminate between transgender and cisgender individuals in this respect.

In addition, the Act is lacking in addressing intrafamily violence and abuse, which transgenders often suffer from at the time of coming out or the beginning of their transition. Rather than giving them freedom to leave abusive relationships and seek protection in self-chosen families or networks, the law deprives them of the option of state rehabilitation centers, thereby restricting their freedom of association and movement. In doing so, it once more estranges them from solidarity groups and subjects them to institutional control.

While the Act talks of the requirement of "inclusive education" and "equal opportunity," it is silent on concrete measures such as affirmative action, scholarships, curricular reform, and anti-discrimination at school and the workplace. Without these, the promise of inclusion is empty.

Marriage and Adoption

Inter-caste and interfaith marriages are permitted under the Special Marriage Act, 1954. The legislation is, however, silent on same-sex marriages. While petitions have been submitted to accord marriage rights to LGBTQ+ couples, the government has, on the whole, opposed such attempts on the basis that India is not yet socially ready.

The denial to extend the right of marriage is, however, opposite to the constitutional assurance of equality (Article 14) and liberty (Article 21). Marriage is not only a personal relationship but also gives rights in cases of inheritance, medical consent, insurance, and family life, all of which same-sex couples are denied. Although some same-sex marriages have been legalised by courts (e.g., a biological man and a trans woman under Hindu law), there is no equality before the law.

For adoption, while single men and women, regardless of gender or orientation, are allowed to adopt under the Juvenile Justice Act, 2015, same-sex couples are explicitly prohibited. Regulations require a "husband and wife" in a two-year stable relationship to adopt, effectively preventing queer couples from co-parenting. Trans individuals also face legal uncertainty due to the binary nature of current adoption laws.

The contention that LGBTQ+ families are "inferior" is not based on law or science, especially with millions of Indian orphans still waiting to be adopted. Prohibiting adoption based on gender identity or sexual orientation is discriminatory, stigmatizing, and not in the best interests of the child.

To maintain equality, the laws governing marriage and adoption must be amended or reinterpreted to include all people, regardless of gender or sexual orientation, in conformity with India’s constitutional values and international human rights standards.