Author: Arunima Pati, B.A.LLB (Hons.), UNIVERSITY LAW COLLEGE, UTKAL UNIVERSITY
India; a country enthroned with the crown of Largest Democracy of the world having “Unity in Diversity” as its most spectacular ornament, a nation with great historical significance, filled with stories of valiant Gods and intrepid Goddesses , of miraculous acts and mischief of deity and heroes, always have overlooked the 3rd gender, sexuality resting further away. The term ‘Gender’ is not a biological term rather a Social term and sad but there is no puranic story of a 3rd Gender’s chivalry. Therefore, the short article tries to study the current changes in India taking the LGBTQ as the sphere, the legal developments, and its positive and negative aspects and also tries to suggest what needs to be done at a socio-cultural level. The paper starts with an introduction looking into the history, then analyses the landmark judgment of decriminalization as well as their supposed rights, then studies the role played by actors at various level and moves to the current scenario, infers the positive and negative from the same and ends with suggestions to humanity and concludes.
Keywords: Homosexuality, Decriminalization, acceptance, sec 377, Rights.
Hindu being the major religion of the country with 79.8 % of population belonging to the same has a devoured mythology which is an inspiration to the numerous nation-beings. Hindu mythology have embarked upon Lord Krishna’s bravery , and Radha- Krishna’s unique love story , but Radharani’s husband Ayan/ Abhimanyu/ Chandrasena (as named in various traditions) is still not known by Many. Ayan was a neuter, so are many people of our country, though not neuter literally but falling under L-G-B-T-Q ,i.e: Lesbian, Gay, Bisexual, Transgender and Queer. The Mahabharata Epic has it, that Shikhandi who was a transgender with memories of past life as Amba, instrumented Vishma’s death as Pitamaha couldn’t attack ‘women’. Even there our stories concealed the reality.
In a country, which is still holding its roots of social dogmatism, where caste still remains a “could-be-discussed-but-not-resolved” issue, can ‘decriminalisation of homosexuality’ be actually exercised? After any initial legal step remains the next big hurdle, the ocean named “SOCIETY”; and us human beings cannot detach our lives from it, our lives are just as connected as a beach.
377: THE JUDGMENT
“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 offense described.“
These words form the Section 377 of the Indian Penal Code,1860; the age old colonial era legislation that has been used to “persecute, blackmail, arrest and terrorize sexual minorities” in India since the inception of the Code, more than a hundred and fifty years ago.
6th September 2018, its when a new shine was visible beyond the dark horizon, but was it truly a Sun driving the nation towards light, or was it a supernova coming to silence the remaining voices people have?
In the landmark judgment of Navtej Singh Johar and Others v. Union of India , Secretary Ministry of Law and Justice , A five Judge Bench constituting former CJI Deepak Mishra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, in the Supreme Court unanimously overturned a colonial-era ban and decriminalized consensual unnatural sex. The day was revolutionary not just for the LGBTQ communities rather for the whole country .The main points covered in the Judgment were:-
- Consensual sexual relationship between two adult homosexuals, heterosexuals or lesbians, is no more an offence under s. 377 of Penal Code.
- Part of s. 377 of Penal Code dealing with penalizing sexual consensual acts between two adults is violative of Art. 14 of Constitution of India being discriminatory and unequal treatment to LGBT community.
- Part of s. 377 of Penal Code dealing with penalizing sexual consensual acts between two adults is violative of Art. 19(1)(a) of Constitution of India on account of unreasonable restriction on freedom of expression and choice of LGBT community.
- Sexual activity between two individuals without consent of any of them is punishable under s. 377 of Penal Code. This portion of S.377 is held constitutional.
- Sexual activity by any human being with an animal is punishable under S.377 of Penal Code. This portion of S.377 is held constitutional.
Rightly said by Justice Indu Malhotra “History owes an apology to LGBT persons for ostracisation, discrimination.” Its funny though , a country with longest written Constitution, containing 448 Articles in 25 parts, 12 schedules and 104 amendments; enshrining equality , Right to life and prohibiting discrimination on grounds of Religion, race, caste , sex or place of birth, has since its emergence , miserably failed in so many fields. Even today Males are considered superior to females, forget the LGBT community. Talking about caste , its unending saga continues till date despite of the vast regulations like the SC and ST( Prevention of Atrocities) Act, 1989 and Article 17 of Constitution itself. India has witnessed the sorrow of “ Eklavya” who tried to learn archery being a sut-putra. Dr. B.R Ambedkar, the father of Indian Constitution himself faced many difficulties being an ‘untouchable’. Even today Lord Jagannath’s temple at Puri, Odisha had no door open to non-Hindu devotees. Not only have these, many more stigmas been combated only with printed pages of the supreme laws of the land.
When we speak of human rights, it includes rights of all individuals regardless of their sexual orientation and Gender Identity, covering all small and big endeavors of making this world a better place to sustain life as human beings and not animals. So what comes along with the decriminalization of homosexuality is rights, yes, their basic human rights. Many NGOs and Associations have worked for the cause. Regarding decriminalisation, and sexual orientation and gender identity rights, more broadly, human rights activists and thinkers around the world have faced many challenges ranging from the stigma of association and public reprobation to harassment and violence in may known and unknown fields and have even given in to murder. But what is the crux of all these, when the lives of the community are hindered by their very own insecurity? At school when a child witnesses someone being teased, the very normal course he takes is to try hard not to be like the child being teased. Being called by names, getting bullied, getting isolated in a class of massive strength are normal problems with every 2nd teenager out there. But what is worst is making people feel ashamed of what or who they are.
Normal Men and Women lead their life ; grow up with friends, study at schools and colleges with friends ,work according to their will, follow their customs traditions and rituals, take part in social functions and events, get married, have children or adopt them , moreover become the part of their country’s society.
Thus, LGBT community also deserves the same; being precise-
- Identification and Social Recognition
- Right to choose partner, Right to Marry or Right to have a family
- Right to have children by adoption
- Right to Education and Freedom of Choosing profession
We focus centrally on the decriminalisation issues, but what is needed, is an outlook to the sexual orientation and gender identity, and issues of relevance to struggles over sexuality, gender and human rights.
All human beings are born free and equal in dignity and rights. “All human rights are universal, interdependent, indivisible and interrelated. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse.”
The Judgment is no doubt a reverberating one, but there is a large difference between a script and a movie. While a writer puts all emotions and thoughts in the pages of the script ,but what actually stays is the way the actors pull out that very emotion. Here, various members of the society are actors, they are to realize the very basis of the decision.
Now analyzing foundations of the Judgment as per the needs of the LGBT community;
Identification and Social Recognition
“The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon.”
- National Legal Services Authority v. Union of India and others, popularly known as NALSA case, was the first wherein the Court pondered on the status of identity of the transgender. Radhakrishnan, J., after referring to plethora of judgments, International human rights treaties and Covenants, opined that gender identity is one of the most fundamental aspects of life which refers to a person‘s intrinsic sense of being male, female or transgender or trans-sexual person. Gender identity, therefore, can be said to very well refer to an individual‘s self-identification as a man, woman, transgender or other identified category.
- A nine Judge Bench majority decision in S. Puttaswamy and another v. Union of India and others through Chandrachud, J., opined that “sexual orientation is an essential component of rights guaranteed under the Constitution and are not formulated on majoritarian favor or acceptance”.
- Kaul, J, in his concurring and right opinion, referred to the decision in Mosley v. News Group Newspapers Ltd. to highlight and put light that the emphasis for individual’s freedom to conduct his sex life and personal relationships as he wishes, subject to the permitted exceptions, countervails and concerns to public interest.
Majority of the petitioners have highlighted upon the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7-8% of the total Indian population, that need to be recognized and protected, for sexual orientation is an integral and innate facet of every individual‘s identity.
Right to choose partner, to Marry or to have a family:
- The authorities in Shakti Vahini v. Union of India and others and Shafin Jahan v. Asokan K.M.  have clearly recognized that an individual‘s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution.
The petitioners presented that there is no difference between persons who defy social conventions to enter into inter-religious and inter-caste marriages and those who choose a same sex partner .
- In Khushboo v. Kanniammal and another  it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression.
- In Kishore Samrite v. State of U.P. and others and Umesh Kumar v. State of Andhra Pradesh and another state that reputation is an element of personal security and protected by the Constitution with the right to enjoyment of life and liberty.
- Pronouncement of Suresh Kumar Koushal and another v. Naz Foundation and others overturning the judgment of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others to deliberately ignoring the plea of sexual minorities enraged the fire.
A Division Bench of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (“Naz Foundation”), after considering wide ranging arguments on both sides, finally had upheld the plea of the petitioners in the following words:
“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IP C will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”
“The love that dare not speak its name” is how the love that exists between same-sex couples as was aptly described by Lord Alfred Douglas, said to be the the lover of Oscar Wilde, in his poem Two Loves as published in 1894 in Victorian England.
These cases have had a chequered history and the pronouncement surely allowed and decriminalized the homosexual acts, but what next? They cannot marry, they cannot register themselves as married couples, and they cannot have a family. Where would that lead to? Again getting into the same dark dungeon with a bitter difference, that this time ,they cannot raise anymore voice to be heard, as it is apparent court has already listened to them enough? But has it!
Right to Adopt
This part is still untouched. People live life and raise a life, that has been the rule of the nature since initiation. But here the LGBT couples have no right regarding adoption . Aren’t they humanly enough to raise a kid if they want to ? But the Judgment outlines nothing regards the adoption of child by the LGBT couples.
Right to Education and Freedom of Choosing Profession
Like every normal human being the LGBT have same rights of education as guaranteed by the Constitution of India which actually needs to be focused upon. How many such children do we find at schools and other institutions? They either hide their reality or hide themselves from the outer-world which is disgrace to the world alone.
- In S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy)”, a nine-Judge Bench of this Court unanimously declared that “there is a fundamental right of privacy which ensured in favor of all persons, the concomitant of which was that the right to make choices that were fundamental to a person’s way of living could not be interfered with”.
But facing the reality, where the mainstream society does not accept the LGBT community and they are tagged as a different community, choosing profession is still a moon in the sky.
But what actually has been a full fledged achievement as of now is the health of the LGBT people as at least they won’t be staying invisible at the time of their health problems the major one being HIV.
Section 377 had a significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (“MSM”) and transgender persons. The Global Commission on HIV and the Law has noted as well as analyzed and produced, the impact of Section 377 on the right of health of persons afflicted with or vulnerable to contracting HIV:
“The law and its institutions can protect the dignity of all people living with HIV, and in so doing fortify those most vulnerable to HIV, so-called “key populations”, such as sex workers, MSM, transgender people, prisoners and migrants. The law can open the doors to justice when these people’s rights are trampled…. But the law can also do grave harm to the bodies and spirits of people living with HIV. It can perpetuate discrimination and isolate the people most vulnerable to HIV from the programmes that would help them to avoid or cope with the virus.” 
Well to change the Paradox , actors need to get to work, so that the changes are welcomed by all .Some suggestions concerning future actions that might be made are as follows:
Actor characteristics: —–
1) Civil society organizations: diversity in organizational platforms
The development of strong ‘organisational platform’ can be important for achieving goals through social mobilisation. For example, non-governmental organisations (NGOs), or associations, like networks or coalitions, or event-specific alliances, can work towards awareness how LGBT are no different and about the various provisions, national and international like -The Yogyakarta Principles.
2) States and governmental actors:
Any attempt by governments such as attracting the LGBT people to carry out office works, in employment industries, providing jobs, would come as a nice solution.
3) Religious institutions:
Hostility at these places had been a major problem, so welcoming the community in these places for different events and rituals would actually help them in entering into the mainstream society
4) Media and Publications
Movies, documentaries, videos, books and articles can all work for the cause.
THE CURRENT SCENARIO
Coming to the current situation, The Transgender Persons (Protection of Rights) Bill 2019 has been passed by the Parliament. It was passed by the Rajya Sabha on 26th November, 2019 and as well as by the 17th Lok Sabha on 5th August, 2019.
“The proposed Bill has following provisions: –
- Non discrimination against a Transgender Person in educational institutions, employment, healthcare services etc.
- Recognition of identity of Transgender Persons and to confer upon them right to self perceived gender identity.
- Provision of right of Residence with parents and immediate family members.
- Provision for formulation of welfare schemes and programmes for education, social security and health of Transgender Persons.
- Provision for National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights.” 
The Bill is supposed to:-
- make all the stakeholders responsive and accountable for upholding the principles underlying the Bill.
- bring greater accountability on the part of the Central Government and State Governments/Union Territories Administrations for issues concerning Transgender persons.
- benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of society.
- lead to greater inclusiveness and will make the transgender persons productive members of the society.
The above clipping highlighted the main provisions of the new act, but what is sad is there is still no sign of acceptance. Because from above the decision seemed very welcoming to pass the Bill, but the story behind needs to be known by every intelligent and prudent citizen.
Stretching the provisions a bit;
The Bill covers the following:-
Prohibition against discrimination:
- The bill prohibits discrimination against transgender persons in all educational institutions and government establishments.
- But the legislation fails to explicitly define what constitutes discrimination in the context of the transgender community. It also fails to specify punishment for those who discriminate against transgender persons.
Recognition of identity:
- The bill provides for them to have the right to “self-perceived” gender identity.
- But in the same section, it also adds that a transgender person has to make an application to the district magistrate to receive an identity certificate that “shall confer rights and be a proof of recognition of his [their] identity as a transgender person.”
- Also incidentally if any person undergoes a sex reassignment surgery, then they have to apply for another certificate in order to change their gender identity. The district magistrate after which will analyze the “correctness” of the medical certificate as issued by the medical superintendent or chief medical officer, according to the bill.
- Causing any kind of harm, including physical or sexual abuse, to a transgender person, could attract punishment from six months and extend up to two years.
National Council for Transgender Persons
- The bill also suggests and provides for the formation of a National Council for Transgender Persons that will exist and perform the function of advising the government on formulating policies for the community, monitor the implementation, as well as address grievances, among others.
Apart from this, the bill does not make mention of any kind of reservation in education and employment for the transgender community.
Provided the legislation also states that the court can decide to place a transgender person in a rehabilitation centre in case if their families are unable to take care of them. It also supplements that the Centre is to provide for healthcare services, including sex reassignment surgery and hormonal therapy. The bill is, however, silent on whether these services would be free or catered to by the government.
Well pointing out the implications in the same article;
- It fails to recognise the right to identify one’s gender. The bill only allows for the certificate to identify a person as “transgender” till they undergo a sex reassignment surgery and apply for another certificate.
- The bill only added penalties for “sexual abuse” and did not provide for extensive penalties for crimes such as rape committed against transgender persons.
- The bill is poses a non-answering status quo in toto when it comes to reservations in education and employment for the community.
A Case Study: (Bangalore celebrations, taken from an article published in The Hindu)
Interviews were carried out and here are some clippings of what the very members of this change said;
“Have things changed and what should be done next?
“We need more conversations
I think things have changed in the last year, in the sense that, people are openly accepting of the queer community. But broadly, when talking about social acceptance and the rights and privileges the community has, I don’t see much of a change. The police has not been sensitised and the government has to do something as per the Supreme Court judgment. Many doctors still consider homosexuality a disease. One of the things that the Section 377 judgment has done unfortunately is that it has fragmented the queer movement. Because it was something that the various identities within the queer community could rally behind. Now that the law has been read down, people, who are on the more privileged end, don’t want to engage in any of the fights on gender and sexuality.”Said Anirudh G, social worker and human rights activist”
“The missing years
Some of us are still vulnerable to violence on the street but it’s on paper that we can’t be put in jail. Some things change and some things don’t. There is still a lot to do. If you consider the Surrogacy Bill which prohibits commercial surrogacy. It also drastically limits who can be a surrogate for you; it has to be a family member.”Said Rohini Malur, writer, poet and founding member of All Sorts of Queer.
“Mass change in the courts
We see that there has been a mass change in the courts. After September 2018, we have got positive judgments from different courts on trans rights. It is going to take a long time for many other things to happen but it has already started.” Said Jayna Kothari, Senior Advocate, Supreme Court, who represented petitioner Akkai Padmashali
“Remaining work goes beyond the legal
However, a lot needs to be done at the socio-cultural level. The judgment has limitedly helped transgender people and those targeted by the police, but familial and social acceptance is still a pipe dream for many. It continues to be difficult to be open at workplaces and many are still forced into heterosexual marriages or are ostracized. As a lawyer and drag queen, I think the remaining work goes beyond just the legal and has to percolate into the social and cultural.” Said Kushboo, environment lawyer and drag queen.
“A lot of miles left to cover
As for where we go from here, there are a lot of other rights such as marriage and adoption that come into play. Though it is now legal, there are a lot of miles to cover before it reaches social sanction. The social awareness and discussion needs to continue.”Said Rovan Varghese, queer affirmative counsellor, and co-director, BQFF
Hence going through all the relevant articles and the case study above, what can be inferred as the recent changes are as follows:
The Positive side:
- The coming up of the LGBTQ people to the mainstream media that marks the increased visibility of the community.
- Participation and representation in mainstream politics and employment sector has grown.
- Movie portrayals have improved and acceptance is being felt.
- Change in the courts and legal acceptance.
- A little more confidence in the LGBTQ people.
- Blackmailing, discrimination, etc has reduced comparatively.
- Factors of health development, and right to reside with family, along with the provision to form commission are also among the positive changes.
The negative side:
- The procedure for identification is still not free from prejudice as the new act does not recognise the right to identify one’s gender and allows only for the certificate to identify a person as transgender.
- Penalties for “sexual abuse” and no extensive penalties for crimes like rape, still remains a major issue.
- Stigma still remains as the individuals come out to the world but not to their families, this is not something legally or politically curable.
- LGBTQ people are still vulnerable as the verdict apparently did nothing for civil rights and only removed their criminal status.
- Members of the LGBTQ community cannot get their marriages registered, they are denied their basic rights to nominate their partners in insurances and other legal documents.
- They cannot adopt a child under the surrogacy bill, and given the prohibitions on commercial surrogacy, a family member has to be the surrogate.
- The verdict, apart from doing something positive, has fragmented the queer movement as since the law has been read down the ones who are on the more privileged end don’t want to bother about it.
- After legal, socio-cultural spheres need to be covered as well.
Keeping the above points in mind, the following are the suggestions that would help in slow but definite transformation of the society;
- The schools should be advised to conduct workshops and plays as well depicting the lives and lifestyle as well as problems faced by the community and should preach on how they are not much different.
- Colonies and societies in their level should start treating the members as any other normal neighbor and should include them in their functions as well.
- The block levels should keep a record of the known LGBTQs in their locality and shall strive to conduct community development programmes once a while.
- Whenever conducting any function or competition the forms should not limit themselves to boys or girls only.
- PTA meetings and the alike should be conducted by able and knowledgeable persons of the field so that family members could be made aware as well as trained of how to be compassionate in case their child turns out to be one.
- Parents, Society, Community shouldn’t ever portray that they are ashamed in any way of the third gender.
- From the authorities end, they really need to reconsider the family rights meant for the LGBTQ people, that they should be able to get legally married and could adopt a child if they want to.
- The most important thing, they should be praised and celebrated on each of their success like a human being and not like “a trans something did this and that great thing”; their success should not be stigmatized or stereotyped and should only be connected to their names.
Therefore, if we as a society only come together, a big burden from both legal and legislative fields will be released because until and unless society accepts, no law can change the situation. Law gave them their identity and we are to accept them for what they are. And acceptance does not mean a mere knowledge of their existence; it refers to including them in activities just like any other human being. Where the whole world is facing and fighting “trans-phobia” why not we do our parts in realizing what we already have.
 Qualification: 4th Year, Integrated B.A.LLB (Hons.)College: UNIVERSITY LAW COLLEGE, UTKAL UNIVERSITY, VANI VIHAR, BHUBANESWAR, ODISHA.Contact Details: Phn. No. 7008568193 E.Mail: [email protected]
 CIA World Factbook.
 Section 377 of IPC, 1860 initially.
 Article 3 of Vol. 16 Yale Human Rights and Development Journal, ‘The Road to Decriminalization: Litigating India’s Anti-Sodomy Law’ by Danish Sheikh.
 AIR 2018 SC 146.
 As of March 2020.
 Articles 14,16 of Indian Constitution.
 Article 21 of Indian Constitution .
 Article 15 of Indian Constitution.
 sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
 gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.
 Article by Corrianne Lenoux and Matthew Waites.
 Universal Declaration of Human Rights.
 The Yogyakarta Principles.
 AIR 2018 SC 146.
 (2014) 5 SCC 438.
 (2017) 10 SCC 1.
  EWHC 1777 (QB).
 (2018) 7 SCC 192.
 AIR 2018 SC 1933 : 2018 (5) SCALE 422.
 (2010) 5 SCC 600.
 (2013) 2 SCC 398 .
 (2013) 10 SCC 591.
 (2014) 1 SCC 1 .
 3 (2009) 111 DRJ 1.
 Navtej Singh Johar & Ors. V. Union of India thr. Secretary Ministry Law and Justice.
 (2017) 10 SCC 1.
 The term “men who have sex with men” (MSM) denotes all men who have sex with men, regardless of their sexual identity, sexual orientation and whether or not they also have sex with females. MSM is an epidemiological term which focuses on sexual behaviours for the purpose of HIV and STI surveillance. The assumption is that behaviour, not sexual identity, places people at risk for HIV. See Regional Office for South-East Asia, World Health Organization, “HIV/AIDS among men who have sex with men and transgender populations in South-East Asia: the current situation and national responses” (2010).
United Nations Development Programme, “Global Commission on HIV and the Law: Risks, Rights and Health” (2012), at pages 11-12.
 A distinguished group of human rights experts drafted, developed, discussed and refined these Principles. Following
an experts’ meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6th to 9th November, 2006, 29
distinguished experts from 25 countries with diverse backgrounds and expertise relevant to issues of human rights
law unanimously adopted the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
 Press Information Bureau Government of India Ministry of Social Justice & Empowerment27-November-2019 18:23 IST
 Section 377- Judgment ,one year later/article 29342570.
 By Aparna Narrain , Article “Section 377 judgment on same sex relations: One year later, has anything changed?”05 September 2019 19:21 IST , Updated: 06 September 2019 13:43 IST .