Rights of LGBT Community In India

Rights of LGBT Community In India

Updated on 18 October, 2019

GS1 GS2 Polity Society
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In News: Rights of LGBT Community In India The idea of human rights is the most common issue around the world that encapsulates human dignity. The very idea of human rights lies in the concept of ‘humans should be treated as equal and anything that undermines it is the violation of the principle of equality’. Under the articles of 14 and 21, the Indian constitution rightly mentioned equality before the law and equal protection of the law for all. The preamble of the constitution also mandates justice such as social, economic, and political equality of status -- for all.  Earlier in 2014, Apex Court ruled that the rights and freedoms of transgender people in India were protected under the Constitution. Also, the court has decriminalized adult consensual same-sex relationships in the Section 377 judgment review.  These judgments are considered a landmark both in terms of their expansive reading of constitutional rights and in empowering LGBT persons. Both judgments mark an important moment for the rights of LGBT. But as per the various critics, there is a huge gap in implementing a program for the LGBT community in India that paves the way for discrimination. For that, in recent years, the human rights of the LGBT community are coming into sharper focus for the adoption of legal protections for the community. Difficulties Faced by LGBT Community: The LGBT face innumerable difficulties in the society where the only accepted orientation is heterosexuality and homosexuality is regarded as abnormal. 

  • Heterosexuality: They are more likely to experience intolerance, discrimination, harassment, and threat of violence due to their sexual orientation than those that identify themselves as heterosexual. 
  • In-equality & Violence: They face inequality and violence at every place around the world. They face torture from people who mock at them and make them realize that they are different from others. 
  • Deprived in Rights: In many countries, the rights enjoyed by opposite-sex couples are not enjoyed by same-sex couples. They are prohibited from those rights. 
  • Isolation from society: They gradually develop low self-esteem and low self-confidence and become isolated from friends and family. 
  • Conflict in Family itself: Lack of communication between LGBT children and the parents often leads to conflict in the family. Many LGBT youths are placed in foster care or end up in juvenile detention or on the streets.
  • Racial Discrimination: Additionally, lesbian, gay, bisexual and transgender people face poverty and racism daily. They suffer from social and economic inequalities due to continuous discrimination in the workplace. 
  • Tape of Addictions: These people mostly get addicted to drugs, alcohol, and tobacco to get themselves relieved of stress and rejection and discrimination.
  • Victims of Hate Crimes: They also become victims of hate crimes. In some countries, homosexuality is regarded as a crime. It is illegal and is often met by imprisonment and fines. 
  • Exclusion and discrimination have more impact on the lives of LGBT persons. This has resulted in the following-
  • Dropping out of school earlier
  • Leaving home and family
  • Being ignored in the community
  • Lacking family support
  • Attempt suicide

Various Judgments in Favour of the LGBT Community:

  • Naz foundation v/s Government of Delhi case: In this case, Delhi High Court upholds that section 377 is in violation of Fundamental Rights of the constitution such as Article 14, 15 or 21, etc. and consensual homosexual sex between adults has become decriminalized in India.
  • Koushal Judgment: In 2013, the Supreme Court criminalizes homosexuality (Koushal judgment) by reversing the judgment of Delhi HC and upholding the constitutional validity of section 377. 

Why the judgment? The right to sexual orientation was meaningless without the right to choose a partner. In Hadiya's case, the apex court observed that neither the State nor one’s parents could influence an adult’s choice of partner. That would be a violation of the fundamental right to privacy. The Court also mentioned that Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is a violation of various fundamental rights such as Article 19, 21, etc. Section 377: Debate Going on

  • Arguments in Favor of Section 377:
  • As homosexuality is against the nature of law, many critics have mentioned that homosexuality and other forms of sex can prove to be an ill-effect for society.
  • Scientifically, any sex other than the natural cause of many serious ills in the human beings. For example, homosexuals are more prone to sexually transmitted diseases like AIDS etc than any normal person. 
  • Arguments Against Section 377:
  • Consensual Sexual orientation protected under Articles 14, 19 and 21: Consensual sexual relationships between same sexes are protected under Articles 14, 19 and 21 of the Constitution of India. 
  • The right to choose one's partner: Right to choose one's partner is manifest in Article 21. Various experts argue that section 377 which criminalizes gay sex violates Article 14, 15, 19 and 21 of the Constitution because there is discrimination on the basis of sex.
  • The affection of the life of LGBT people: Same-sex is a normal variant and the society has favored decriminalization of section 377 as it is affecting the lives of LGBT people.
  • Violation of Right to Association: Section 377 violates the right to form an association between sexual minority and the LGBT community is afraid of forming any kind of association fearing police action. 
  • An instrument for Exploitation: Many critics feel that section 377 is just an instrument of exploitation and it is almost not possible to decide what type of sex two consenting individuals are having in private.
  • Unhappy Marriage: Due to the stigma of Homosexuality, LGBT people bound to marry the opposite sex and that leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most.

International Developments for LGBT Community:

    • India: In a historic judgment, the Supreme Court of India ruled that consensual adult gay sex is not a crime saying sexual orientation is natural and human beings have no control over it. 
    • Ireland: Ireland legalized same-sex marriage. The country, which had decriminalized homosexuality in 1993, became the first country to allow same-sex marriage at a national level by popular vote.
    • USA: US Supreme Court ruled that same-sex marriage was legal. 
    • Nepal: Nepal legalized homosexuality in 2007 and the new Constitution of the country to gives many rights to the LGBT community.
  • Other Countries: 
  • Other countries like Belgium, Brazil, Canada, France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden, and Uruguay allow either same-sex marriage or a civil union. 
  • Nepal, Japan, China, Taiwan, Thailand, and Vietnam have legalized homosexuality while some of them even protect members of the LGBT community from discrimination. 
  • India currently stands with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia, Afghanistan, Mauritania, Qatar, and Pakistan, which criminalizes homosexuality.

Recent Rising Issues for India: Gap for Policy Implementation The Indian government has successfully leaped ahead of section 377 which had imposed by the British on the people of India.   As section 377 removed, but there is a wide gap in implementing a policy for the LGBT community and make a better environment for them. Right now, they are facing many issues that are underline in the below section:

  • Issue of Family: The problem of sexual orientation and gender identity leads to fighting and family disruption. Lack of communication and misunderstanding between parents and their LGBT children increases family conflict.
  • Issue of Discrimination still prevails in Work Place: LGBT suffers from the socio-economic inequalities in large part due to discrimination in the workplace.
  • Issue of Injustice: Human rights and fundamental rights are applicable to all person, but the state is failed to create special legislation which protects the rights of LGBT Minority community and to provide real justice to them.
  • Issue of Khap Panchayat: The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock while holding that any attempt by Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely “illegal”.

Way Ahead: In order to create better-living place for LGBT community, the Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law.  There are no laws protecting gays and lesbians from discrimination at the workplace or laws that allow them to marry their partner of choice. If Sec 377 is abolished, it opens a window of acceptance and achievement for the LGBT community. There are various niches where we can work more which are enlisted as follows:

  • Special laws should be enacted.
  • Provide opportunities in social and economic activities.
  • Need to take preventive measures in family, public and domestic violence.
  • Need to change the social attitude toward LGBT Minority people.
  • I need to organize workshops and seminars about their rights.
  • The state has to protect their fundamental rights without any discrimination.
  • The government should take initiatives to support employers in making the workplace and workplace culture more supportive and inclusive of LGBT people.

Read More Articles: LGBTQ and Article 377 Analyzing Rajasthan State Human Rights Commission on live-in relationships


Categories : socialstigmas, lawandorder,
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