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How does it feel to get punish each day of your life without committing any wrong or for something which was never your fault? How does it feel to not be able to accept your own identity because society look down upon it?
Well, to get an answer to these questions, one must look back to the struggle of LGBT community in India. This community consists of Lesbian, Gay, Bisexual, and Transgender. It includes all the people with different sexual orientation than a normal person. Sexual orientation generally includes sexual fantasies, sexual attraction, sexual behaviour, social and lifestyle preferences and self-identification. Right from the birth of LGBT people, they suffer a lot and face a number of difficulties throughout their life just because of their gender and their sexuality which is different from others. As soon as they are born and the family gets to know about their gender or discover it later, many families deny to accept them as their child and handover them either to the people of ‘Kinnar Samaj’ or to any orphanage. In this way, they are separated from their parents and family which ruin their life completely. If their families deny to accept them, why will society make them a part of it? As a result, they face various kinds of social discrimination in the society. They are called with the slangs like ‘chhakkas’, ‘hijras’ and what not. They are even harassed at different places. Their gender is used as an abusive word to tease people. As a child, they face discrimination in their schools and in their friend circle too. The society itself make their survival difficult.
Going back to late 1800s, during the British rule in India, Section 377 was added to Indian Penal Code. During that period, Britishers declared all the sexual activities “against the order of nature”, including homosexual sexual activities, an offence, under section 377 of the Indian Penal Code, which entered into force in 1861. Although, this section is no more prohibiting the LGBT from making sexual relationship, but before this could happen, they have suffered a lot. It was like criminalization of their desires and having sexual attraction for the same gender was, earlier, considered as a crime in the eyes of the society. It was violating their fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. Although section 377 is declared unconstitutional, but LGBT marriage is still not legalised in India yet. They can make physical relations but they cannot marry. They cannot live with their partners making it official by marrying them. This is affecting their personal life. Not only this, as they face discrimination all over places, they even face a number of obstacles in finding a job or employment for themselves. They are not treated equally as other gender people because of their sexual identity. It affects their means of livelihood very badly. Many of them remain unemployed. As a result of all these difficulties, we can say that neither they have a personal life nor do they able to enjoy their professional life.
Undeniably, such obstacles in their lives affect them in various different ways to an extent that it becomes really hard for them to lead a normal life like a normal individual. They are separated from their families during childhood only. They are not treated as equal as a normal kid. They are teased everywhere, even in schools, because of their way of speaking, behaving, walking and their gender. Many of LGBT kids leave school because of these mockery and bully. They are not able to concentrate on their studies and careers as they face different kinds of discriminations all day and night everywhere. Many of them go into depression and trauma and lose their mental health because of the harassments faced in the society at different places. They tend to hide their sexuality and real identity in order to get better jobs. They live in a fear of revelation of their identity. Many of them do not get jobs and remain unemployed due to their gender. They are neither treated equally nor given equal opportunities at workplaces. When they are handed over to ‘Kinnar Samaj’, they have to beg on the streets of India for money. They lose almost everything, live without any respect in the eyes of society, just because they belong to LGBT group.
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On the way of attaining their rights, they did a lot of struggles and took a legal route in order to demand for justice and equality. It took almost a decade for them to reach the position where they are today in the society. Starting from the case law of 2009, to the bill introduced in 2019, indeed they have come a long way. The first time when they raised their voice was during the case of Naz Foundation v. Govt. of NCT Delhi, 160 Delhi Law Times 277, 2009. In 2009, a Delhi based organization which works on the issues of HIV/AIDS, named Naz Foundation filed a petition stating that Section 377 of IPC is unconstitutional and is doing injustice with LGBT Community. Looking at the facts of the case, Delhi High Court passed the judgement stating that Section 377 of Indian Penal Code is unconstitutional as it violates Article 14, 15, and 21 of the Constitution. The Court analyzed that this section is infringing the fundamental rights of LGBT Community. It further concluded that there is no proof that who is being harm or what is causing harm due to homosexual activities, because of which criminalization of such acts under section 377 is utter unreasonable and unacceptable. Moreover, criminalization of such acts has given the people an opportunity to discriminate, harass and humiliate the LGBT people for no reason. The Court ended the verdict on the note that it might take time for the society to accept this and the discriminations to be reduced, but gradually, things will be set in their respective places.
Not surprisingly, in 2013, the Supreme Court got a number of appeals challenging the Judgement passed by Delhi High Court about decriminalization of homosexuality in the Naz Foundation case. In this case of Suresh Kumar Koushal v. Naz Foundation and Ors., Civil Appeal No. 10972, the panel of two Supreme Court judges declared the judgement of Delhi High Court as legally unsustainable on 11th December 2013. They held that Section 377 of Indian Penal Code is constitutional and is not violating any article of the Constitution. The Delhi High Court was not able to find sufficient details regarding discrimination against gays and lesbians. The Court held Section 377 of IPC constitutional again and re-criminalised homosexuality, i.e., sexual intercourse against the order of nature.
But, as it is said that when one door closes another opens up, the same thing happened on 15th April 2014 which was not just an ordinary day. Something really exceptional and unexpected happened on this day of Indian history which gave a new ray of hope and light in the lives of ‘Hijras’. Transgenders, who were considered the dead members of India constitutionally, for the first time in the history of India, got recognition to be called as a ‘Third Gender’ of the society, a separate gender from male or female. The Honorable Supreme Court of India in the case of National Legal Services Authority v. Union of India, Writ Petition (Civil) no. 400 of 2012 in its landmark judgment in 2013 created the ‘third gender’ status for Transgender. The Supreme Court further stated that the third gender would be now categorized as Other Backward Classes [OBC] in order to make the opportunities available for them through reservations in educational institutions and government jobs. Earlier, while writing their gender, they were forced to write male or female as their sex, but from now onwards, after this judgement, they can describe themselves as ‘third gender’ proudly. The Government of India had been ordered by the Supreme Court for treating all the members of the ‘Third Gender’ as socially and economically backward people. The verdict was indeed a ray of wisdom and hope that at last penetrated into the dark chambers of the world of Transgender people.
The continuous efforts of bringing justice to this community were resulting some productive outcomes gradually. On 2nd February 2016, during the case of Navtej Singh Johar & Ors. V. Union of India, Writ Petition (Criminal) no. 76, the Supreme Court revisited the judgement of 2013 made in Suresh Kumar Koushal v. Naz Foundation case. In August 2017, the Supreme Court unanimously held that the Right to Privacy is a fundamental right now under Article 21 of the Indian Constitution. This gave LGBT activists a hope that soon SC will be going to look into the matter of Section 377 as this section was infringing the privacy of their lives. In January 2018, the Supreme Court was all set to review the question of Section 377’s validity to a large bench of judges, and heard several petitions on 1st May 2018. On 6 September 2018, the Supreme Court passed its judgement. The Court held that Section 377 is unconstitutional as it was infringing the fundamental rights of privacy, intimacy, and identity, thus declaring homosexuality legal in India. The Court had overturned its 2013 judgement of Naz Foundation case. It was another most awaited miracle happened in the history of Indian legal system.
Moreover, Transgender Persons (Protection of Rights) Bill, 2019, was reintroduced to Parliament after 2019 general election took place. The bill was approved on 10th of July by all the Cabinet members of India. This bill states that transgender persons include all those genders who are not a woman or a man, and who have sexual orientation different from a man or a woman such as kinnar, hijras, etc. According to this new bill of 2019, a person would have the right to choose to be identified as a man, woman or transgender, and any sex reassignment surgery and hormonal therapy does not matter. However, for this purpose, transgender people are required to go to a district magistrate to obtain a certificate of identity and the district magistrate shall issue to the applicant an identity certificate on the basis of the rules which will be formed when the bill will become an act. But Transgender people are not satisfied with this provision. It was criticized by transgender activists who argue that it is violating the judgement of the Supreme Court in 2014 which granted transgender people the right of self-identification. This showed that they are not happy with the announcement of the bill. Moreover, the bill prohibits discrimination against transgender people in nine fields, such as education, employment and healthcare, etc.
No doubt that years took to just to be recognized as a third gender and be able to enjoy all the fundamental rights like others for the LGBT community. A long history of LGBT shows what all kinds of difficulties they have faced, without any fault and committing any crime, right from being abused and harassed every day, getting demeaned by the word chhakkas, being separated from the family since childhood to not getting equal rights of living, earning, enjoying like other men and women. After fighting so many battles, they have got recognition, they have got some equal rights, but still a lot is left. The last bill passed by the Parliament prohibited discrimination against them but this just not made them satisfied. According to them the bill is violating the verdict of 2014, the right of self-identification, passed by Supreme Court. Moreover, LGBT community people are still not allowed to marry and have relations. This is somehow infringing their privacy and individual desires. Also, it will take time for the Indian society to accept LGBT people equal to them. There are still many places where they are being demeaned and harassed. This just needs to stop.
Although, it’s still a long way to go, but the strong will of the people of this community is already making its way. Its great example is Joyita Mondol, India’s first transgender judge of a Lok Adalat, a civil court, who has struggled for 10 years to reach this position. Many more people from this community is now seeking employment, earning livelihood with their determination, confidence and will power as gender is not in their hands but their life is.
 Section 377 of IPC available at : https://en.m.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code (last visited on February 13th, 2021)
 Naz Judgement, 2009 available at : https://www.shethepeople.tv/home-top-video/5-judgements-that-paved-the-way-for-lgbt-rights-in-india/ (last visited on February 14th , 2021)
 National Legal Service of India V. UOI available at : https://www.ijernd.com/manuscripts/v1i2/V1I2-1140.pdf/ (last visited on February 15th, 2021)
 Navtej Singh Johar V. Union of India https://www.scobserver.in/court-case/section-377-case (last visited on February 15th, 2021)
 Transgender Persons (Protection of Rights), Bill, 2019 available at :
https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community/ (last visited on February 17th, 2021)
Author: Himangi, Amity Law School, Noida
Editor: Kanishka Vaish, Senior Editor, LexLife India.