i

CERTIFICATE

This is to certify that, Ms Baig Laeba Mirza Hasham student of

LL.M. (IV Semester) of Shri Shivaji Law College, Parbhani has
successfully carried out this dissertation work entitled LGBTQ and
Indian Constitution: A Critical Study under my guidance and
supervision and I recommend it be sent for evaluation.

Dr. Gyanendra Fulzalke

(Research Guide)
M.S.P. Mandal’s Shri Shivaji Law College,
Parbhani

Place: - Parbhani
Examination No.: -
 ii

DECLARATION

I, Baig Laeba Mirza Hasham, hereby declare that, the dissertation

entitled LGBTQ and Indian Constitution: A Critical Study which is
submitted for the partial fulfillment of the award of degree of LL.M. has
not been submitted by me in any other University for any degree or
diploma. The present dissertation work has been prepared by me and it is
my original research.

Laeba Baig

Date:
Place: - Parbhani
 iii

ACKNOWLEDGEMENT

I take this golden opportunity to express my heartfelt gratitude and sincere

regards to my Research Guide, Dr. Gyanendra Fulzalke Sir, for being my biggest
support throughout this entire journey. I’ll forever be grateful to him for having
enlightening discussion, constantly encouraging me & trusting my capabilities not just
throughout this research but during my entire law education. I’ve truly been blessed to
have him as my research guide, dream come true in real sense. He gave me wings to fly
and explore the world while having keen supervision. He has truly become my mentor,
friend, philosopher & guide in all these years.
A very special thanks to Professor Dr. Waseem.I. Khan Sir for being my
guiding light and pillar of strength right from the day I stepped my foot in the law
college. He is the one who can read my silence, answer my queries even before I need
to speak it out loud. He had held me before I fall and guided me to the right path
whenever I felt lost. Waseem Sir and Fulzalke sir deserve a special thanks for being so
patient with me while I took so much of their precious time coming up with queries and
doubts or even hypothetical questions. They have always shown the confidence in me
more than I’ve in m and they deserve credit for whatever I achieved or will achieve in
future.
I’m obliged to thank Dr. V.M More sir, Principal of Shri Shivaji Law
College and all the teaching staff, especially Professors Dr. Kashinath Neharkar sir,
Dr, Maknikar Sir, Dr. Pratibha Chavan Ma’am, Dr. Harsha Suryawanshi Ma’am,
Dr, Jawanjal Ma’am, Dr. Ingole ma,am for being the true parent figures and always
boosting up morale, criticizing wherever needed and encouraging me to be a better
version of myself.
I would also like to thank non- teaching staff of my college- Librarian
Hari mama, sable mavshi & Jadhav mavshi for their co-operation during my study.
I’m profoundly thankful to all the LGBTQ+ support groups and persons
especially Nawar, who has facilitated my virtual fieldwork by answering the
questionnaire and interview and in other words shared a very personal part of their life.
I’m thankful to all my friends especially Bhakti, Deepti, Mishri and
Aarti who have constantly helped and lent a supportive hand whenever and wherever
I needed. They have been a great moral support during this journey.
 iv

No words of gratitude would be enough to thank my parents for

upbringing me in a well-educated and safe environment where I felt confident enough
to choose such bold and taboo subject. I also thank my dearest mom (Tahreem Baig)
& my beloved brother (Mirza Mustaqueem Baig) for being my strength and helping
me with their ideas and inputs.
Last but certainly not the least, I thank my dad (Mirza Hasham Baig),
my hero, my inspiration who left for his heavenly abode during the course of
preparation of this dissertation.
Most of all I thank Almighty for giving me strength to overcome the
grief and resume the work on the project that I had started earlier.

Laeba Baig
 v

List of Statutes/Acts

1. The Constitution of India, 1949

2. Indian Penal Code, 1860
3. The Transgender persons (protection of rights) Act, 2019
4. The Protection of Human Rights, 1993
5. The citizenship Act, 1955
6. Immoral Traffic Prevention Act (ITPA), 1956 (amended in 1986),
7. The Hindu Marriage Act, 1955
8. The Indian Christian Marriage Act, 1872
9. Special Marriage Act, 1954
10. Foreign Marriage Act 1969
 vi

LIST OF CASES

✓ Anil Kumar Sheel vs The Principal, Madan Mohan Malvia Engg.

College AIR 1991
✓ Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397
✓ Baker v. Vermont, 744 A.2d 864 (Vt. 1999)
✓ Bhagwati J. in Maneka Gandhi V. Union of India, AIR 1978 SC
597
✓ Board Of Trustees Of The Port Of Bombay V. Dilipkumar
Raghavendranath Nandkarni
✓ Bodhisattwa Gautam v. Subhra Chakraborty
✓ DP Minwalla vs Emperor AIR 1935
✓ Fazal Rab Choudhary vs State of Bihar AIR 1983 SC 823
✓ Fuzlunbi V. K.Khader Vali, AIR 1980 SC 1730
✓ Goodridge v. Dept. of Public Health, 798 (2003)
✓ Grace Jeyaramani vs EP Peter, AIR 1982
✓ Jayalakshmi v. State of Tamil Nadu (2007) 4 MLJ 849
✓ K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809
✓ Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957
A.2d 407
✓ Khanu v. Emperor AIR 1925 Sind 286
✓ Kharak Singh V. State Of U.P AIR 1963
✓ Kusum Ingots v. Union of India 2004 6 SCC 254
✓ Lawrence v. Texas, 539 U.S. 558 (2003)
✓ Lewis v. Harris, 188 N.J. 415; 908 A.2d 196 (N.J. 2006)
✓ Mihir vs State of Orissa 1992 Cr LJ 1352
✓ Naresh Shridhar Mirajkar vs State of Maharashtra’, AIR 1967 SC
✓ National Human Rights Commission V. State of Arunachal
Pradesh, 1996, SCC 742.
 vii

✓ National Legal Service Authority v. Union of India and others

2014 SCC 438
✓ Navej Singh Johar v. Union of India, (2018) 1 SCC 791
✓ Naz Foundation Vs. NCT Of Delhi, 2009 60 DLT 277 (DB)
✓ Nicholas Toonen v. Australia Communication, No. 488/1992, UN
Doc CCPR/C/50/D/488/1992 (1994).
✓ Obergefell v. Hodges, 576 U.S. 644 (2015)
✓ Olga Tellis V. Bombay Municipal Corporation
✓ Padmanabhan v. Joint Commissioner of Labour
✓ Poonam Rani and Anr. v.State Of Uttar Pradesh & Ors. AIR 2021
✓ Pooran Ram vs State of Rajasthan 2001 Cri LJ 91
✓ Punjab Province v. Daulat Singh AIR 1946
✓ R. Coelho V. State of Tamil Nadu AIR 2007 SC 861
✓ R. Rajagopalan V. State Of Tamil Nadu AIR 1994 SC 632
✓ S Sushma v. Commissioner of Police AIR 2021
✓ S. Khushboo v. Kanniammal AIR 2010
✓ Shakti Vahini v. Union of India AIR (2018)
✓ Sultana Mirza & Anr. v. State Of Uttar Pradesh & Ors. 2020
✓ Suresh Kumar Kaushal V. Naz Foundation AIR (2014)
✓ Surjit Kumar V. State Of U.P AIR 2002 NOC 265
✓ UPSE Board v. Hari Shankar, AIR 1979 SC
✓ Vishakha V. State Of Rajasthan AIR 1997 SC 3011
 viii

ABBREVIATIONS

AC Appellate Court
ABVA AIDS Bhedbhav Virodhi Andolan
AIC All India Cases
AIR All India Reporters
APA American Psychiatric Association
ART. Article
CALERI Campaign for Lesbian Rights
CAT Committee against Torture
CCSA Citizen’s Collective against Sexual Assault
CEDAW Convention for Elimination of all Forms of Discrimination against
Women
CEO Chief Executive Officer
CESCR Committee on Economic, Social and Cultural Rights
CRC Committee on the rights of child
DB Division Bench
DNA/RNA Deoxyribonucleic Acid/ Ribonucleic Acid
DSM Diagnostic and Statistical Manual of Mental Disorders
FMA Foreign Marriage Act 1969
GI Gender Identity
GID Gender Identity Disorder
HHR Health and Human Rights
HMA Hindu Marriage Act 1955
HR Human Rights
HRC Human Rights Commission
ICCPR International Covenant on Civil and Political Rights, 1966
ICESCR International Covenant on Economic, Social and Cultural Rights,
1966
IDAHO International Day against Homophobia
ICMR Indian Council for Medical Research
IGM Inter-Gender Marriage
 ix

IHRL International Human Rights Law

IPC Indian Penal Code, 1860
IPS Indian Psychiatric Society
JNHRC JNHRC Journal of National Human Rights Commission
LGBTQ Lesbian Gay Bisexual Transgender Queer
NALSA National Legal Service Authority
NCRB National Crime Record Bureau
NGO Non-Governmental Organization
NHRC National Human Rights Commission
NHRC National Human Rights Commission
NHRI National Human Rights Institution
NIMH National Institute of Mental Health
OCI Overseas Citizenship of India
PIL Public Interest Litigation
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reports
SCW Supreme Court Weekly
SLR Supreme Court Law Review
SM Sexual Minorities
SMA Special Marriage Act 1954
SO Sexual Orientation
SOGI Sexual Orientation and Gender Identity
SRS Sex Reassignment Surgery
UCC Uniform Civil Code
UDHR Universal Declaration of Human Rights, 1948
UK United Kingdom
UN United Nations
UNCHR United Nations Commission for Human Right
UNO United Nations Organizations
USA United States Of America
 x

Contents
Sr.no Title Page No.
Certificate i
Declaration ii
Acknowledgement iii
List of Statues/Acts v
List of Cases vi
Abbreviations viii
Chapter-I Introduction 1-12

1.1 Introduction of LGBTQ+ 1-4

1.2 Statement of problem 5-6

1.3 Aims & object 7-8
1.4 Significance of study 9
1.5 Area of research 10
1.6 Review of literature 11
1.7 Hypothesis 12
1.8 Research methodology 12
Chapter- II PERCEPTION OF LGBTQ 13-25

2.1 Concept of LGBTQ 13

2.2 Terminologies 14-19
2.3 Difference between sexual orientation and gender 19-21
identity:
2.4 Science and LGBTQ 21
2.5 LGBTQ and Jurisprudence 22
2.6 LGBTQ and religions in India 23-24
2.7 LGBTQ and mythology and archaeology 25
Chapter III: LGBTQ at International level 26-45

3.1 Global Scenario 26-27

3.2 LGBTQ Rights at United Nations 28-29
3.3 International Human Rights Instruments and Sexual 30
Minorities
 xi

3.3.1 Universal Declaration of Human Rights (UDHR) 31-34

Provisions and Sexual Minorities:
3.3.2 International Covenant on Civil and Political Rights 35
(ICCPR) and Sexual Minorities:
3.3.3 International Covenant on Economic, Social and Cultural 36
Rights (ICESCR) and Sexual Minorities
3.3.4 United Nations Human Rights Committee and Sexual 37
Minorities
Table: Treaties Signed or Ratified by India 38
3.4 History Of LGBTQ Minorities In India 39
3.4.1 Pre-Colonial / Ancient Era 39
3.4.2 Medieval Period and Homosexuality 40
3.4.3 Colonial era 41
3.4.3 Modern India 42
3.5 Present status of homosexuality in world 43-44
3.6 Worldwide Landmark judgements on LGBTQ+ 45
Chapter IV: LGBTQ+ and The Ambit Of 46-67
Indian Constitution & statutes
4.1 Preamble 46-47
4.2 Part II: Citizenship 48
4.3 Part III-Fundamental Rights: 48-56
4.4 Directive Principles of State Policy: 57
4.5 Fundamental Duties (Article- 51A) 57
4.6 Indian laws/Acts 58
4.6.1 Indian Penal Code, 1860: 58
4.6.2 The transgender persons’ (protection of rights) act, 2019 59
4.6.3 Protection of Human Rights Act, 1993 and Sexual 59
Minorities
4.6.4 The Citizenship Act, 1955 60
4.6.5 Immoral Traffic Prevention Act (ITPA), 1956 (amended 60
in 1986)
4.6.6 The Hindu Marriage Act, 1955 60
4.6.7 The Indian Christian Marriage Act, 1872 61
4.6.8 Special Marriage Act, 1954 61
 xii

4.6.9 Foreign Marriage Act 1969 61

4.6.10 Uniform Civil Code 61
4.7 Law Commission Reports and Sexual Minorities: 62
4.8 National Crime Record Bureau (NCRB) Data of Sec. 377 63
IPC
4.9 Judicial activism 64-69
4.10 Rules of Interpretation and Sexual Minorities 70
Chapter V: Battle Of LGBTQ Community 71-94

Against Indian Society

5.1 Indian society and homosexuality 71
5.2 Legal discrimination against sexual minorities in India 72
5.2.1 Prevention of unnatural offences under IPC 72
5.2.2 Scope Of Section 377 Of IPC Is Ambiguous 72
5.2.3 Discrimination on the ground of sex 72
5.2.4 Injustice on LGBTQ minority 72
5.3 Some major issues faced by LGBTQ minorities in India. 73
5.3.1 Homophobia 73-74
5.3.2 Verbal abuse by homophobic slurs 74
5.3.3 Bullying/Physical violence 74
5.3.4 Getting disowned by family: 75
5.3.5 Denied to get jobs and education 75
5.3.6 Family issues 75
5.3.7 Discrimination at work place 75
5.3.8 Victims of crime 76
5.3.9 Psychological Distress 76
5.3.10 Drug Addiction 76
5.3.11 Blackmail and extortion 76
5.3.12 Harassment & torture by police and public authorities 77
5.3.13 Problems faced by lesbians 77
5.3.14 Marrying the person they love and having a family with 77
them is still a dream
5.3.15 Problems of Terminology 78
 xiii

5.3.16 Impacts Of Covid-19 On LGBTQ+ Community 78

5.4 Reasons for problems 79
5.4.1 No end to the ugly labeling, homophobia & 79
discrimination
5.4.2 Being Homosexual Is Considered As Mental Illness 79
5.4.3 Coming Out Is An Ordeal 79
5.4.4 Sexual assault on LGBTQ is a reality 80
5.4.5 Constant exposure to uncomfortable questions 80
5.4.6 Health problems get ignored 80
5.4.7 No proper sex education 80
5.5 Conversion therapy and torture 81-82
5.6 Gender and Homosexual stereotype 83
5.7 Gender neutrality as a solution to problems faced by the 84
community
5.8 Activists’ movements 85
5.9 Pride parades…….Out of the closet, on to the street 85
5.10 Arguments in favor of LGBTQ 86-87
5.10.1 Anticipated Positive Effects of Legalizing 90-91
Homosexuality in India
5.10.2 Same-sex marriage to be an asset 92-93
5.11 Successful people of the community 94
Chapter VI: Analysis of survey data 95-108

6.1.1 Result Illustrated By Pie Chart 95-99

6.1.2 Answers For Descriptive Questions 100-102

6.2 Analysis Of Survey Data 103

6.3 Testing Of Hypothesis 104-105

6.4 Conclusion 106-107

6.5 Future Scope For Further Research 108

Chapter VII Suggestions 109-115

7.1 Legal Measures Suggested 110

7.1.1 Proposal of ‘The Protection of Sexual Minorities Act’ 111

 xiv

7.2 Suggestion for Government Bodies 112

7.3 Suggestions for LGBT Community 113

7.4 Suggestions for Society 114-115

Chapter VIII: Bibliography 116-117

8.1 Books 116

8.2 Newspaper Articles 116
8.3 Reports/Journals 116
8.4 websites 117
8.5 Statues 117

Appendix (Questionnaire) 118-121

 xv

Abstract

In this dissertation the researcher has tried to discuss about concept & nature of LGBTQ
people and discrimination on the ground of sexual orientation or gender identity in the
society that results in violation of their rights including fundamental rights and human
rights. The researcher has also tried to focus on legal definition and its scope, lacunas,
issues and challenges before LGBTQ minority people in India. Bringing the notion that
how India is working on it and how the citizens are dealing with the openness of this.
People around the world face violence and inequality on the basis of how they look or
who they love. The lack of social recognition has an effect on the capacity of LGBTQ
people to fully access and enjoy their rights as citizens. These barriers and socially
unwanted stigmas be removed and this place be made a safe heaven for all types of
people and also rights be equally distributed amongst all here.

“I do not consider myself just an ally to the LGBT community. I consider myself your
family. And so I am doing what we should all do with our families: I am loving you.
I support you, I completely accept who you are.” – Anne Hathaway
 1

Chapter – I Introduction

▪ 1.1 : Introduction Of LGBTQ:

“All humanity is one undivided and indivisible family, and each one of us is responsible
for the misdeeds of all the others. I cannot detach myself from the wickedest soul.”-
Mahatma Gandhi.

The idea of human rights is based on the central point that all humans are equal. All
humans have dignity and all humans must be treated with equal respect. Anything that
undermines that dignity is violation of principle of equality and paves the way for
discrimination. Not every person in the world is same. We have different religion, race,
color, nationality, but deep down we are all humans who deserve to be treated with
equal love, respect and acceptance in society. Same goes for people who have varying
gender identity and sexual orientation. Our society is deemed to be heterogeneous with
only two genders i.e. Male and female and heterosexual is the only form of sexual
orientation. This has become ‘norm’ of the society that has been accepted. Anything
that challenges said ‘norm’ is treated as ‘abnormal’ or ‘unnatural’. Same goes for people
who have varying gender identity or sexual orientation. People belonging to the
LGBTQ+ community face injustice and discrimination in every field of their life. They
are deprived of their fundamental rights of equality, non-discrimination, freedom of
speech and expression and importantly right to marry as a facet of right to life. Although
the reference of same-sex activity1 is also found in pre-colonial societies of Republic
of India
The institution of marriage in Indian society is regarded as union of male and
female. Hence relationship between two people of same gender is considered unnatural.
Any such relationship was even criminalized u/s 377 of Indian Penal Code. Although
the judgment of the Supreme Court in Navtej Johar v. Union of India holding that

Acharya Y., Raghavendra : Understanding Homosexuality: Challenges and Limitations, available at:
https://www.omicsonline.org/open-access/understanding-homosexualitychallenges-and-limitations
 2

consensual same sex under Section 377 of the Indian Penal Code was no longer
criminalized was revolutionary in the manner in which it protected the rights of lesbian,
gay, transgender persons, and sexual minorities. However, court has retained the
statutory prohibitions on homosexual marriages despite much criticism from people of
LGBTQ+ community. Hence same-sex relationships, regardless of their duration, are
not legally recognized in many countries including India and as a result, homosexual
partners are denied many of the legal and economic privileges automatically bestowed
by marital status. These include employment benefits, the ability to file joint tax returns
and perhaps most importantly since the advent of AIDS & COVID pandemic -- health
benefits and rights arising on the death of a partner, including interstate inheritance etc.
In society at large many of these benefits are available to heterosexual de facto partners,
but continue to be unavailable to homosexual partners.2 The hijras are having a
historical existence in Indian society and remained a social taboo with so many
disparities. Some other persons like transgender are also available in the society and
seeking equality in terms of social, economic, political and legal status. The group of
such persons including hijras are known as ‘sexual minorities’ and are identified as
lesbians, gays, bisexuals, transgender, intersex, asexual, hijras, kothis, queer, etc. They
take birth as a person but not ever had been treated as person. Certain rights (human
rights) are provided in international and national instruments of laws for all persons
without any discrimination but remained inaccessible to these. This subject is full of
various complexities and issues relating to religion, culture, morality, naturalness,
sexual orientation, gender identity, law and human rights etc.
The study of human sexuality has a comprehensive list of various
perspectives and includes historical, biological, psychological, sociological,
anatomical, anthropological, medical and socio-cultural, legal and human rights. But
regarding the human sexuality study, the issue of homosexuality has not been widely
taken. Although, there are issues involved with homosexuality but it is evident that such
practice was available in history of Indian culture. There are evidences from Khajoraho
Temples, Ajanta-Alora Caves and also the texts of Vedas, Ramayan, Mahabharta,
Bhupen Kakkar paintings, Ismat Chugtai writings and other divine stories.

2
A relationship not based on blood or marriage is not entitled for Social Security benefits under
Employee Provident Fund Act, Pension Act, Workmen Compensation Act, Insurance Act, Housing Act
etc.
 3

After the case of Naz Foundation, striking down section 377 of Indian Penal
Code (Hereinafter IPC) as unconstitutional by Delhi High Court, the voices raised in
favour of legalizing homosexuality, same-sex-relationship and equal status for sexual
minority persons in India has increased. Consequently, a huge challenge for policy
makers, executives, judicial and other social institutions like family, marriage, religion,
etc. has come out and become more important because of multi-dimensional structure
of Indian society. Within the Manusmriti,3 Lesbianism was treated as serious offence
and for it a lot of serious punishment was prescribed.
Over the last several decades, the increasing global recognition to issues of human
rights for lesbian, gay, bisexual, transgender & queer (LGBTQ) people and other sexual
minorities has focused on the value of those rights from a social, cultural, and ethical
perspective. Recognizing those rights represents a commitment to equality for a
stigmatized group of people and to guaranteeing universal freedoms for those
individuals. The need for attention is clear: human rights agencies and scholars from
around the world have documented violations of human rights, finding discrimination,
family rejection, violence, imprisonment, and other forms of exclusion faced by
LGBTQ people in every country studied.
"There remains a great deal to be accomplished in freeing many millions of gays and
lesbians from the tyranny of fear of discovery, of actual and potential economic
disenfranchisement, of the burden of ridicule, shame, and scorn, and of penalties for
alleged criminal behavior. Nevertheless, the recognized status, for example, of openly
gay, lesbian, trangender and queer is light years away from their inferior and almost
certainly closed status of 1954". This quotation is from Evelyn Hooker, the woman
whose research was instrumental in the removal of homosexuality as a mental disorder
from the DSM (Diagnostic and Statistical Manual of Mental Disorders).
People belonging to the LGBTQ+ Community have to constantly fight for their
basic rights. These rights are not given by a court or government; it is something an
individual is born with. LGBTQ+ members are not claiming something they should be
granted. They are demanding what they rightly deserve and are still being denied.
India does not have a comprehensive anti-discrimination code for LGBTQ. While
the constitution prohibitsts discrimination in general, that injunction only applies to

Devdutt Pattanaik, What Does Dharmashastra and Manusmriti Say About Homosexualiy? Available
at: https://www.dailyo.in/lifestyle/dharmashastra-manusmriti-karma-
 4

government & its instrumentalities. The private sector does can discriminate with
impunity in matters of employment, housing, health and education among other areas.
It seems utterly ridiculous to any sensible brain that two people who know each
other, love each other, are willing to spend their lives together and raise a family and
most importantly are major enough to decide for them are being denied the basic right
to marry just because they belong to same sex. Many gay and lesbian people are in
committed same sex relationship. These relationships are equivalent to heterosexual
relationships in essential psychological respects.
Sexual orientation and gender identity are personal and does not define a person
and hence no person should be judged or discriminated on the basis of these. But in
reality people around us get tortured, bullied, killed or forced to end their own lives
because of who they are or who they love or like.
We as humans should strive to create a peaceful & healthy environment for
individual irrespective of who they are, who the love or like, with whom they want to
share their lives, or how they want to dress up or what pronouns they prefer for
themselves. That’s the least we can do to make world a better place for everyone.
Society needs to evolve. Ignorance is no justification for normalizing any form of
discrimination.4

4
Live Law: Justice Anand Venkatesh- Madras HC Judgement 8th June 2021
 5

▪ 1.2: Statement of problem:

India is a democratic country full of diversities, in which people belong to several
different culture, religion, caste, sex, language, etc. Indian society is a progressive
society still it follows customs and traditions in its very ancient and contemporary forms
with a conservative nature. In India, not only the persons with heterosexual identity are
living but also a great number of persons who have different gender identities and
sexual orientation as compared to the norm lives.
The total population of sexual minority in India is untraced but the Centre
government had informed the Hon’ble Supreme Court of India during the hearing of
case of decriminalization of homosexuality (Appeal against the decision of Delhi High
Court in Naz Foundation case) that there are estimated 25 lac gay population in India
in 2012. But the population of other groups such as lesbians, bisexuals and transgender,
gender queer etc. is not available. Considering the fact that in 2012 there were still many
closeted members of queer community, the real number can only be of greater height.
There are 78 countries (presently 79 countries) where individuals of sexual
minority may still face criminal sanctions on the basis of their sexual orientation or
gender identity. Ending violence and criminal sanctions on the basis of sexual
orientation and gender identity “to deprive certain individuals of their rights, indeed to
impose criminal sanctions on those individuals, not because they have inflicted harm
on others or pose a threat to the well-being of others, but simply for being who they are,
for being born with a particular sexual orientation or gender identity” is a must.
The incidents related to sexual minorities, in which they face discrimination,
stigma, inhuman treatment and denial of rights in the society is very heart wrenching.
The sexual minorities not only face the injustice in the society but also in their own
families. These incidences reveal the real and dangerous face of the society and reality
of human rights status of sexual minorities. Every citizen of the country has a right to
live with dignity, right to self-expression under the Constitution of the country as well
as International Human Rights laws .Why the sexual minorities are deprived from the
same rights?
Several cases related to sexual orientation and gender identity have come forward
with crying that sexual minorities are facing gross violations of human rights ranging
from abusive language to death in several parts of India. In several cases, sexual
minorities have committed suicide under social pressure and in several cases they are
 6

compelled to leave their own houses. In some of the cases they were killed in the name
of “Honor Killing”. The sexual minorities face discrimination at every level and remain
deprive from their basic human rights.
Indian criminal justice system has not been helpful in protecting and promoting
the human rights of sexual minorities at all. The lack of specific laws available in India
concerning with these people being the perfect excuse to stay silent spectators. They
have no right to dignity, right to marry, right to adopt children, right to property etc. on
the basis of sexual orientation and gender identity like other citizens of India. At
present, the problems related to rights of sexual minorities are huge but the solutions
are less or silent.
In the case of inhuman behavior, stigma and violence, not only the sexual
minorities are targeted but those, who are working for protection and promotion of their
human rights, are also targeted. Any person who may not belong to LGBTQ+
Community but is an ally and speaks in their favour is looked upon with disgust in the
society. The human rights violation incidences related to sexual minorities cannot be
easily measured. Most of the cases are never uncovered or don’t make it till the news
portals. Various issues and challenges are faced by LGBTQ+ Community India despite of
certain laws in their favour and certain new laws are required to establish equality, justice
and restoration of fundamental rights.

✓ The people of LGBTQ community face discrimination and are deprived of their
fundamental rights.
✓ They have to deal with various socio-legal issues in the society where
homophobia prevails and sometimes even the family disowns the individuals.
✓ Even if transgender are recognized as third gender and consensual homosexual
acts are decriminalized, the fight for justice is long ahead.
✓ The researcher is trying to analyze the various socio-legal issues and challenges
faced by LGBTQ community in India despite of certain laws in their favour and
give some recommendations for better implementation of laws and protection
of their rights as human.
 7

▪ 1.3: Aims & Object:

There has not been enough understanding of the LGBTQ people or their lives. The
LGBTQ population has still been mostly invisible to the society and almost boycotted
leading them to various socio-legal issues. The aim of this research study is to provide
a comprehensive knowledge about sexual minority persons. Because of having
inadequate knowledge about sexual minorities, not only sexual minorities suffer various
problems but also it makes adverse impact on the families, relatives and the people who
believe in love, peace, humanity, welfare, equality, justice, law and human rights at
large. For a country to be developed, inclusive approach is a vital requirement. The
major aim of this study is to educate, aware and sensitize the society and Indian criminal
justice system about sexual minority persons’ sufferings and problems through
investigating personally, discuss experiences with sexual minorities and responses of
other persons particularly with Indian criminal justice system.

LGBTQ+ people face tremendous difficulties growing up in a society where

heterosexuality is often presented as the only acceptable orientation and homosexuality
is regarded as unorthodox. They continue to face discrimination and exclusion in all
spheres of life. Homophobic violence and abuse targeting LGBTQ people occur on a
regular basis. Same-sex couples do not enjoy the same rights and protections as
opposite sex couples, and consequently suffer from discrimination and disadvantage in
access to social protection schemes, such as health care and pensions. In the labour
market, a majority of LGBTQ people continue to hide their sexual orientation not to
endure harassment & out of fear of losing their job. Particularly vulnerable are young
LGBTQ people who experience estrangement from family and friendship networks,
harassment at school and invisibility, which can lead in some cases to
underachievement at school, mental ill-health and homelessness.
 8

Hence following are the objectives of this research.

✓ To explain the concept of LGBTQ.

✓ To trace the history and evolution of the LGBT in detail.
✓ To discuss Constitutional and legal provision regarding LGBTQ Community.
✓ To discuss the role of the Legislature and Judiciary in recognition of the issues
And Protection of the Fundamental Rights of the LGBTQs.
✓ To highlight their issues and challenges in the society.
✓ To find out consequences of discrimination in the society.
✓ To provide recommendations in order to make the lives of the LGBTQ people more
meaningful and worthy for better living in the society with utmost decency, dignity,
decorum, freedom and liberty on par with other citizens of the society.
✓ To attract the spotlight of the society to understand the pathetic conditions of the
LGBTQ people so as to treat on par with them as their fellow human beings with
the extension of human kindness void of any discrimination.
 9

▪ 1.4: Significance of study:

Most LGBTQ people in India remain closeted, fearing discrimination from their
families and friends who might see homosexuality and transgender as shameful.
Discrimination is still present in every field of life taking a toll on their social life and
mental health. To cope with this people of community are fighting for equal rights and
acceptance. The basic fundamental rights granted by our constitution are being denied
to them and hence this subject needs attention. The most important significance of this
research study is related to the formation of society as inclusive one. Out of this research
study, various facts related to contribution of sexual minority persons have been
explored. The high qualification of sexual minority persons in various fields has a
capacity to lead on different points of time. Their contribution to society remains
unconsolidated. This research study has tried to explore the skill and contributions of
sexual minority persons as a person first after that technically and professionally sounds
persons as second. The use of these skills may be utilized for whole social welfare,
benefits and development. The study will also highlight the problems faced by the
LGBTQ community and what can be done by the governments to relieve them and how
society should be molded to accommodate LGBTQ communities as a form of diversity
and not in the form of any deviation. The LGBTQ people have been suffering from both
physical and mental ailments besides discrimination from the society since long time.
Though, they are willing to do work, none in the society come forward to entrust work
and moreover they are being look down upon as untouchables. This indifference results
in their economic loss and unemployment. The study holds significance because it aims
to focus a bird’s eye view on the history and evolution of the LGBTQs, legal
recognition of their fundamental rights, besides same-sex marriages and International
strategies on the LGBTQ dignity followed by valuable applied suggestions to robust
the LGBTQ lives more meaningful and worthy for living in the society without any
discrimination.
 10

▪ 1.5: Area of research:

The area of research of this dissertation covers all of India. From the research point of
view, the broad area is The Constitution of India. The survey has been conducted online
which gave the scope to reach people belonging to the LGBTQ+ Community of all age
groups, jobs, states etc. This study focuses on the history of homosexuality &
transgenderism, status of LGBTQ Community at International level, in Indian context
with regards to Indian Constitution and other Indian laws, socio-legal issues faced by
people of LGBTQ community etc. The survey manifests the impact of issues dealt by
people of India caused due to declination of basic human rights along with their
opinions as to how the issues could be resolved and rights be imparted to the deserving.
 11

▪ 1.6: Review of literature:

Literature on homosexuality, transgenderism, rights of LGBTQ+ community is sparse,
fictional and extraneous in nature and substance. Almost more than 80% literature
present is extrinsic and irrelevant to research work. Many authors continue to write
popular, non-academic books such as fiction, poetry, drama etc. on homosexuality but
the actual literature from legal point of view is inadequate. Most of the books studied
regarding ‘Gender Equality’ focused on women empowerment and upliftment of
female gender while simultaneously ignoring the transgender community as if they
don’t exist. Only few Indian authors have written on homosexuality in Indian context
especially from legal and social angle. Hence books and articles by foreign authors have
been referred. The researcher has explored some fictional works as well with the aim
of having a better perception regarding the subject. Also the global pandemic and
lockdown had restricted the researcher to mostly access the e-books, online reports and
news articles etc.

➢ Text Book – Law relating to sexual offences and homosexuality in India by I.K.
Magoo, Always My Child by Kevin Jennings, The Right to be parents by Carlos
Balls, Beyond Bullying by Jonathan Fast, Simon vs The Homo sapiens Agenda by
Becky Albertalli.

➢ News Paper Articles: The Hindu, The Indian Express, Times of India, India
Today, Hindustan Times

➢ Websites: http://www.legalserviceindia.com, https://www.latestlaws.com,

http://www.barandbench.com, http://www.livelaw.in,
https://www.scconline.com,http://www.manupatrafast.in,
http://www.indiankanoon.org,http://www.nationalhomeless.org/,
http://thebestschools.org, http://Business_standard.com
➢ Indian laws/Acts: The Constitution of India 1949, Indian Penal Code 1860, The
Transgender persons (protection of rights) Act 2019, The Protection of Human
Rights 1993, The citizenship Act 1955, Immoral Traffic Prevention Act (ITPA),
1956 (amended in 1986), The Hindu Marriage Act, 1955, Special Marriage Act,
1954
 12

▪ 1.7: Hypothesis:

Considering the above objectives, the following hypotheses are formulated.

✓ Does the human rights provisions under the national and international instruments
have ensured required protection to the LGBTQ+ community?
✓ Does the legislature and judicial mandates have any positive impact on the
conditions of the LGBTQ?
✓ Do the judgements of Supreme Court of India and High courts (with reference to
IPC Sec.377 and recognizing transgender identity) helped the community in real
sense?
✓ Do People of LGBTQ community face various socio-legal issues?
✓ Is more support of the legislature and judiciary needed to improve the conditions of
the LGBTQ?
✓ Is Sexual orientation/gender identity directly related to violation and denial of
fundamental rights of LGBTQ community?
✓ Can the problems faced by LGBTQ Community can be solved by creating special
laws for them?

▪ 1.8: Research methodology:

The reliability and dependability of any research study mainly depends upon the
method that is applied. In the present study, the researcher has used partly doctrinal
and partly non doctrinal methods. This gives access to primary as well as secondary
data. The doctrinal study is based on the secondary data gathered from various
sources such as books, journals, magazines, newspaper articles etc. For the non-
doctrinal part a virtual survey has been conducted by the researcher with the help
of social media. The questionnaire consisted of 20 multiple choice questions and 3
descriptive types. Members of community throughout India took part through the
questionnaire and shared their views, opinions and experience regarding how
society treats them and their expectations from the Indian legal system. Collection
of data has been done by the mode of random sampling. This study has targeted the
analysis of the current condition of the LGBT people living in India. The researcher
has also interviewed and discussed regarding the issues in detail with some of the
respondents to get a better outlook regarding the subject.
 13

CHAPTER II: PERCEPTION OF LGBTQ

“There is nothing wrong with you. There’s a lot wrong with the world you live in” –
Chris Colfer

Our society has adopted heterosexuality and binary gender as the common or normal
life style. So the non-heterosexuals or homosexuals and non-binary genders together
constitute a different group or community where based on their individual identities
there is a specific term. LGBTQ is an acronym for Lesbian, Gay, Bisexual, Transgender
and Queer. It is essentially a political alliance between these groups/communities that
started between the late 80s and late 90, depending on which part of the world you are
in. The purpose of the alliance is to improve the situation and further the rights of the
members of those communities.

▪ 2.1 Concept of LGBTQ

We live in a world that is deeply structured by sex and gender. The categorization of
people as ‘male’ or ‘female’ permeates our society on every level, including our
language, relationships, social institutions, and academic debates. On a social level,
biological determinism or the belief that we act in certain ways because of our physical
make-up, is life. This is the case despite the changes that have occurred over the past
century in the way that gender and sexuality are constructed, and high levels of cross-
cultural gender and sexual variance.5
Identity of an individual is one of the most important facets of their life. It’s
literally the definition of a person, of who they are and how they want others to see
them. Accepting one’s identity gives a sense of self-esteem and confidence of facing
the society. Very often people might not realize how important an identity is for the
health and wellbeing of a person.
LGBTQ+ is an initial that stands for terms used for various sexual and gender
identities. The LGBTQ community is the persons belonging to sexual minorities,
lesbian/ gay/bisexuals etc. whose sexual desire or gender identity varies from what the

5
Monro, Surya. Gender Politics: Citizenship, Activism, and Sexual Diversity. United Kingdom, Pluto
Press, 2005.
 14

society has adopted as normal/common. Although, the definition of sexual minorities

is not provided in social and legal related studies but there are certain organizations,
working groups and authorities who have tried to put definitions of terms used under
the category of sexual minorities in express and implied forms. Such definitions are
available in the reports, working papers and articles relating to sexual minorities. For
sexual minorities, only some acronym terms like LGBTQ+ are used. Each term has its
own meaning with respect to identity of the person.
“Heterosexuality is not normal, it’s just common”- By Dorothy Parker

▪ 2.2 Terminologies

➢ LGBTQ+

LGBTQ+ is the Abbreviation for Lesbian, Gay, Bisexual, Transgender & queer. An
umbrella term used to refer to the community as a whole. The terms “Queer
Community” or “Rainbow Community” are used to describe LGBTQ+ people. These
initials and the various terms are always evolving. The most important thing is to be
respectful and use the terms that people prefer. Some of the terms also have their
specific flag symbol which holds deep importance to the members of the community.

➢ Lesbian:

Lesbian is a female who is sexually attracted towards other women. The term Lesbian
has been derived from the name of Greek island named “Lesbos”6

6
Green, R. & Peterson, N., LGBTQIA Terminologies, available at: mailto:eli@trans-academics.org
 15

➢ Gay:

A male-identifying person who experiences attraction (be it romantic, sexual, etc.)

towards other male-identifying persons; also sometimes used as an umbrella term for
homosexual people or LGBTQ+/queer individuals.

➢ Bisexual:
Bisexual is a person who experiences sexual attraction towards two different genders.
Usually referred to a person who is sexually attracted to male as well as female.

➢ Transgender:

A person (of any gender) who does not identify with the sex they were assigned at birth
or a gender outside of the man/woman binary.

➢ Queer:

Queer literally means ‘odd’ or ‘strange’.7 An adjective used for people whose sexual
orientation is not exclusively heterosexual. It is an umbrella term used for people with
nonexclusive heterosexual orientation or binary gender identity. It encompasses various
identities like pansexual, asexual etc. Back in the history, the homophobic people used
the term ‘queer’ as a slur for homosexuals or transgender. Although the community has
now reclaimed it with pride and accepted it, the term still can be considered as
derogatory and disrespectful by some people.

7
Oxford English dictionary
 16

➢ Questioning:
A person who is unsure of their sexuality or gender identity and is
questioning/exploring the same.

➢ Pansexual

Pansexual means someone who is attracted to people regardless of their gender.

Pansexual people are attracted to people of all gender identities. This means that they
may experience sexual feelings towards anyone, no matter their labels.

➢ Asexual:
Asexuality is the lack of sexual attraction to anyone or low or absent interest in sexual
activity. Person can have sexual intercourse but not necessarily gain pleasure or content
from the action itself. They still might love their significant other but are not sexually
attracted.

➢ Demisexual:

People who only experience sexual attraction towards someone with whom they
have formed a very close emotional bond. Demisexual can be homosexual or
heterosexual or bisexual. Sometimes demisexual person can mistake themselves as
asexual until they form a strong emotional bond enough to cause sexual attraction.
 17

➢ Non-binary:
Non binary is an umbrella term for other gender identities like gender queer, agender,
gender fluid etc.8. Person who doesn’t identify as exclusively male or female. The
Majority of the non-binary community gender neutral pronouns.

➢ Agender:
Agender people are those who do not identify themselves with any gender.

➢ Gender fluid:
A person whose gender identity varies over time. Genderfluid person doesn’t identify
as having one fixed gender.

➢ Intersex:
People born with any of the several variations in sex characteristics including
chromosomes, sex hormones or genitals. It is an umbrella term used to describe
wide range of natural bodily variations.

➢ Ally:
A person who confronts heterosexism, sexism, homophobia, biphobia, transphobia and
heterosexual privilege in the society out of concern for the well-being of LGBTQ+
people & takes a stand for the rights of the LGBTQ+ community.

8
http//www.healthline.com/health/transgender/nonbinary/genderneutrallanguage
 18

➢ Biphobia: fear or hatred of people who are bisexual or pansexual.

➢ Coming Out: Refers to voluntarily making public one's sexual orientation
and/or gender identity.
➢ Cisgender: The prefix cis- means "on this side of" or "not across." A term used
to call attention to the privilege of people who are not transgender.
➢ Gender: A social construct used to classify a person as a man, woman, or some
other identity. Fundamentally different from the sex one is assigned at birth; a
set of social, psychological and emotional traits often influenced by societal
expectations
➢ Gender Expression: How one expresses oneself, in terms of dress, mannerisms
and/or behaviors that society characterizes as "masculine" or "feminine."
➢ Gender queer: A person whose gender identity and/or gender expression falls
outside of the dominant societal norm for their assigned sex, is beyond genders,
or is some combination of them.
➢ Heterosexism: The assumption that all people are or should be heterosexual.
Heterosexism excludes the needs, concerns, and life experiences of lesbian, gay,
bisexual and queer people while it gives advantages to heterosexual people. It
is often a subtle form of oppression, which reinforces realities of silence and
invisibility.
➢ Heterosexuality: A sexual orientation in which a person feels physically and
emotionally attracted to people of a gender other than their own.
➢ Homophobia: The irrational hatred and fear of LGBTQ+ people. Homophobia
includes prejudice, discrimination, harassment, and acts of violence brought on
by fear and hatred. It occurs on personal, institutional, and societal levels.
➢ Homosexual/Homosexuality: An outdated term to describe a sexual
orientation in which a person feels physically and emotionally attracted to
people of the same gender.
➢ Internalized homophobia: The fear and self-hate of one’s own LGBBTQIA
identity, that occurs for many individuals who have learned negative ideas about
LGBTQ+ people throughout childhood. 9

9
https://lgbt.ucsf.edu/glossary-terms
 19

➢ Pronouns: what someone goes by and prefers to be addressed. Correct use of

pronouns makes the gender identity of the person explicit. Common ones are
she/her, they/them and he/him.
➢ Sexual Orientation: An enduring emotional, romantic, or sexual attraction.
Sexual orientation is fluid. Asexuality is a part of sexual orientation.
➢ Transphobia: The fear or hatred of transgender people or people who do not
meet society’s gender role expectations.

▪ 2.3: Difference between sexual orientation and gender identity:

Sexual orientation is an inveterate emotional, romantic, sexual or endearing attraction

to another person. It can be distinguished from other aspects of sexuality including
biological sex, gender identity etc. Sexual orientation exists along the immutability that
ranges from exclusive homosexuality to exclusive heterosexuality and includes various
forms of bisexuality or pansexuality. Bisexual persons can experience sexual,
emotional and affection or attraction to both their own gender and the opposite gender.
Persons with a homosexual orientation are sometimes referred to as gay (both men and
women) or as lesbian (women only). Sexual orientation is different from sexual
behavior because it refers to feelings and self-concept. Persons may or may not express
their sexual orientation in their behaviors.10 Sexual orientation is a relatively recent
notion in human rights law and practice and one of the controversial ones in politics.
Prejudices, negative stereotypes and discrimination are deeply imbedded in our value
system and patterns of behavior. For many public officials and opinion-makers the
expression of homophobic prejudice remains both legitimate and respectable - in a
manner that would be unacceptable for any other minority. The main principles guiding
the human rights approach on sexual orientation relate to equality and non-
discrimination. Human rights advocates, lawyers and other activists seek to ensure
social justice and guarantee the dignity of lesbians, gays and bisexuals.
Gender identity is how a person feels and who they know them self to be when it
comes to their gender. It is defined by the Human Rights Campaign as the “innermost
concept of self as male, female, a blend of both or neither – how individuals perceive
themselves and what they call themselves.” It can mirror what a person was assigned at

10
http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html
 20

birth, or be entirely different. There are dozens of genders, outside of just man or
woman that people can identify with. There are more than two genders, even though in
our society the genders that are most recognized are male and female (called the gender
binary) and usually are based on someone’s anatomy (the genitals they were born with).
This is gender assignment and it is based on an assumption that someone’s genitals
match their gender. However, gender isn’t about someone’s anatomy, it is about who
they know them self to be. There are many different gender identities, including male,
female, transgender, gender neutral, non-binary, Agender and all, none or a
combination of these. Gender can be complex and people are defining themselves in
new and different ways as we gain a deeper understanding of identities.
The expression gender identity was coined in the middle 1960s, describing one’s
persistent inner sense of belonging to either the male and female gender category. The
concept of gender identity evolved over time to include those people who do not
identify either as female or male: a “person’s self-concept of their gender (regardless
of their biological sex) is called their gender identity” 11
Since the 1990’s the word transgender has been used primarily as an umbrella term to
describe those people who defy societal expectations and assumptions regarding
gender. It includes people who are transsexual and intersex, but also those who identify
outside the female/male binary and those whose gender expression and behavior differs
from social expectations.
Difference: It’s a common misconception that gender identity and sexual orientation
are connected. If someone is transgender, for example, many people automatically
assume that they must also be gay. That, however, is not the case. Gender and sexuality
are different, and it’s an important distinction to understand. Sexual orientation is about
whom you’re attracted to and who you feel drawn to romantically, emotionally, and
sexually. It’s different than gender identity. Gender identity isn’t about who you’re
attracted to, but about who you ARE — male, female, gender queer, etc. Sexual
orientation, on the other hand is the “inherent or immutable enduring emotional,
romantic or sexual attraction to other people.” Basically, it’s who you are interested in
dating and being intimate with. Someone can be transgender, but also be gay, straight,

11
Transgender Emergence: Arlene Lev, 2004, p. 397. Lev, A. I. (2004). United Kingdom: Haworth
Clinical Practice Press.
 21

bisexual, asexual, or a whole host of other sexual identities that exist. “Sexuality is who
you go to bed with, and gender identity is who you go to bed as. That’s the simplest
way I can describe it,” explained YouTuber Brendan Jordan, who identifies as gender
fluid.

▪ 2.4 Science and LGBTQ

The biological perspective ‘focuses on the role of biological processes, such as genetic,
hormonal, vascular, and neural factors, in explaining human sexual behaviour.’12
Biological scientists have only hypothesized that a combination of genetic, hormonal
and social factors determines sexual orientation. They also believe this relationship as
a subject of research. ‘Genetic factors can be controlled through breeding, and
experiments can be performed on their developmental and physiological processes’.
Chromosome linkage studies of sexual orientation have indicated the presence of
multiple contributing genetic factors throughout the genome. This perspective focuses
on the various micro level research around the probability of a ‘gay gene’ responsible
for sexual orientation. Homosexuality is not a disease. It’s a part of natural human
variation. We have enough evidence that there is a biological basis to sexual
orientation.13 Homosexuality is a natural biological feature and is common among non-
human animals. Sometimes animals tend to show bisexual behaviour as well. The
scientific study of human sexuality has explored various issues with the help of
interdisciplinary and multidisciplinary research. Under this scientific approach,
scientists have preferred the study of human cells, cell- cycle, chromosomes, genes,
DNA, etc. It is pretty definitive that biological factors play important role in
determining sexual orientation and gender identity of a person and hence it is absolutely
absurd to believe those are diseases that can be treated or lifestyle that can be changed.

12
Spencer A Rathus, Jeffrey S. Nevid, Human Sexuality in a world of diversity 32 (Allyn and Bacon,
United State of America, 4th end, 2000).
13
Margaret McCarthy (neurologist at University of Maryland)- The scientist article oct 1 2015
 22

▪ 2.5 LGBTQ and Jurisprudence.

Under the Natural Law Theory two people of the same sex interacting to produce
orgasms will be morally good or bad depending on whether or not such actions are in
accordance with natural laws or not. Atheistic Natural Law Theory suggests that if
there are species on earth in which members of the same sex physically interact to
produce physical pleasure then homosexual couplings amongst humans would be
morally good. The purpose of orgasms would be more than to produce offspring.
Theistic Natural Law Theory says that God made Nature and humans. God gave
humans reason by which they are to learn of the natural laws. And the reason for
copulation is to provide offspring and hence a sexual relation where offspring cannot
be produced is unnatural. Today natural law theory offers the most common intellectual
defense for differential treatment of gays and lesbians, and as such it merits attention.
‘Some philosophers have located the essence of ‘morality’ in the reduction of harm,
others in the increase of well-being, some in social harmony, some in the all-round
flourishing of individual, others in the preservation of freedom and personal
authenticity’14 For some natural law pioneers the only concept of validity is validity
according to natural law, i.e. moral validity. Natural lawyers can only judge a law as
morally valid that is just or morally invalid, i.e. wrong. They cannot say of a law that it
is legally valid but morally wrong. If it is wrong and unjust, it is also invalid is the only
sense of validity they recognize’
The ‘moral majority’ is a dangerous concept of jurisprudence; it is misleading to assume
that large masses of people are in agreement on every aspect of an issue, even if a
consensus is perceived and represented by the media or by politicians. Furthermore,
large masses of people can be misinformed and manipulated by various institutions and
mass media.15
Jeremy Bentham proposed the Utilitarian penal theory according to which if the
apparatus of punishment does more harm than good, then the matter should be left to private
ethics. Ronald Dworkin argued in favour of decriminalization of homosexuality. If
behaviour is a basic liberty, it should never be taken away.16

14
John Finnis, Natural Law and Natural Rights, Oxford University Press, New York, 2000).
15
The Concise Guide to Global Human Rights. United Kingdom: Black Rose Books. By Nandorfy, M.,
Fischlin, D. (2007.
16
Ronald Dworkin, Taking rghts seriously, 1977
 23

▪ 2.6 LGBTQ and religions in India

There is a strong relationship between a country’s religiosity and opinions about
homosexuality. Religion plays an important role in shaping one’s ideology, beliefs,
customs, traditions and to some extent overall outlook of a person, community, as well
as a country. The world is full of religious & cultural diversity. Our beliefs, pride &
prejudices are also governed to some extent, by religion apart from other factors such
as social, economic & political reasoning. Religion lays down the rules for morality.
Morality lays down rule of sexuality & civility. Civility & sexuality further classifies
behavior as normative & non-normative. Homosexuality is considered as non-
normative behavior & the genesis for this belief is that all major religions of the world
are against homosexuality.

▪ LGBTQ+ & HINDUISM:

Homosexuality has not been explicitly mentioned in the religious texts central to
Hinduism, the largest religion in India. Our Dharamshastras & Dharamsutras have no
express rules on homosexuality. Though Vedas have interpreted several issues in a
peculiar way. Rig Veda, one of the four canonical sacred texts of Hinduism says
“Vikruti Evam Prakriti “(what seems un-natural is also natural), which some scholars
believe recognizes the cyclical constancy of homosexual/transsexual dimensions of
human life. The Manusmriti, which lists the oldest codes of conduct that were proposed
to be followed by a Hindu, does include mention of homosexual practices. Though
homosexuality was considered a part of sexual practices, it was not always well
accepted. There were punishments prescribed for homosexual behaviour.17 The Narada
Smriti, written around 400 CE, forbids the marriage of homosexual men to women as
completely rejected as unqualified for marriage, even for a woman who has been
raped."18 Historian Devdutt Pattanaik summarizes the place of homosexuality in Hindu
literature as follows: "homosexuality was not part of the mainstream in Hinduism; its
existence was acknowledged but not approved."19

17
Manusmriti, chapter 8, verses 369 & 370
18
Narada smriti, chapter 1 (12.5)
19
Pattanaik, Devdutt. Queerness in Indian Mythology: (Penguin Petit). India, Penguin Random House
India Private Limited, 2018.
 24

▪ HOMOSEXUALITY & ISLAM:

In the care of homosexuality the thought or opinion differs between mainline school of
Islamic jurisprudence, though the common consensus is that homosexuality is worthy
of severe punishment. The Muslim population at large around the globe is against
homosexuality, as it is against the religious teachings of Islam. The Quran cites the
story of people of Lot (also known as the people of Sodom & Gomorrah), destroyed by
the wrath of Allah because they engaged in ‘lustful’ carnal acts between men.20 Thus,
the sins of the people of Lut became proverbial, and the Arabic words used for
homosexual behavior (Liwat) and for a person who performs such acts (luti) both derive
from its name. There is however, only one paragraph or passage in the Quran which can
be interpreted as prescribing a legal position towards homosexual behavior.21 It is also
not reported that Prophet Mohammed has punished somebody for committing
homosexuality; there is no authentic hadith reported from the prophet prescribing a
punishment for the homosexuals, hadith scholars such as Abu Bukhari & others have
impugned them. Still only a minority of Muslims holds liberal viewpoint. It can be
interpreted that homosexuality in the form of lust has been condemned but the act out
of pure love can be accommodated. Prophet Mohammed has also strictly condemned
people who are harsh and cruel to others especially non-Muslims and minority. Hence
the acceptance or condemnation of homosexuality can be argued but denial of rights or
any kind of abuse even to the members of LGBTQ+ Community is strictly
unforgivable.
▪ HOMOSEXUALITY & CHRISTANITY
Within Christianity there are a variety of views on the issues of sexual orientation &
homosexuality. The mention of homosexuality in Bible is much debated post 20th &
21st century. This debate concerns proper interpretation of Bible & Levitical code the
story of Sodom and Gomorrah and the various Pauline passages whether the verses
mentioned condemn same-sexual relationships. It is noteworthy to state here that Bible
forbids homosexual behavior & not strictly homosexuality. Being homosexual is a state
or an orientation; a person could engage in homosexual acts even if he has a
heterosexual orientation. Now what the Bible condemns is homosexual actions or
behavior not only homosexual orientation.

20
‘Holy Quran, 7:80-84, 11:77-83, 21:74, 22:43, 26:165-175, 27:56-59 & 29:27-33
21
Quran, 4:15-16
 25

▪ 2.7 LGBTQ and mythology and archaeology

There are multiple traces of homosexuality or varying gender identity in mythology and
archaeology to prove the existence of them from time immemorial. The Hindu God
Shiva is often represented as Ardhanarishvara, with a dual male and female nature.
One of the Evidence is a sculpture from the Elephanta Caves near Mumbai. In the Hindu
narrative tradition, stories of gods and mortals changing gender occur.
Sometimes they also engage in sexual activities as different reincarnated genders.
Homosexual and transgender Hindus commonly identify with and worship the various
Hindu deities connected with gender diversity such as Ardhanarishvara (the
hermaphrodite form of Shiva); Aravan (a hero whom Krishna married after becoming
a woman); Ayyappa (a god born from the union of Shiva and Mohini, a female
incarnation of Vishnu); Bahuchara-devi (a goddess connected with trans-sexuality and
eunuchism); Bhagavati-devi (a Hindu goddess associated with cross dressing);
Bhagiratha Maharaja (an Indian king born of two female parents); Chaitanya
Mahaprabhu (an incarnation of Radha and Krishna combined); Chandi Chamunda
(Twin warrior goddesses); Gadadhara (an incarnation of Radha in male form);
Gangamma-devi (a goddess connected with cross dressing and disguises); Harihara
(Shiva and Vishnu combined); Kartikeya; Vallabhavardhana, Yellamma-devi and
countless others.22 Bhagiratha who is credited with bringing the Ganges River down to
earth through his austerities is believed to have been born out of love of two women.
The engrave picture on the walls of khajuraho depicting four women engaged in lesbian
sex is an evidentiary fact that homosexuality exists from very ancient times in Indian
history as well. The statements opposing homosexuality on the ground that it’s a
western phenomenon is be well contested by supporters of LGBTQ movement in India.
The homoerotic carvings among the erotic carvings on the Hindu temples of khajuraho
in konark and puri, and on the great Buddhist monuments at borabordur in Indonesia
are well known.
Apart from Hindu mythology, Greek mythology has multiple Queer Gods as Zeus,
Athena, Achilles, Apollo, Artemis, Hermes, Heracles, Poseidon, and Hermaphroditus.
Egyptians have Isis, Seth, Horus, Nephthys, Ra.23 Norse has Fryer, Odin & Loki
(Bisexual gender fluid)

22
Magoo, I.K. 2006. Law Relating to Sexual Offences and Homosexuality in India. Delhi: Capital Law
House.
23
http//www.pride.com/queer-gods-who-rules-ancient-history
 26

▪ Chapter III: LGBTQ at International level

“I have often asked myself why human beings have any rights at all. I always
come to the conclusion that human rights, human freedoms, and human dignity
have their deepest roots somewhere outside the perceptible world. These values
are as powerful as they are because, under certain circumstances, people accept
them without compulsion and willing to die for them.” - Vaclav Havel. (Former
President of Czechoslovakia)

3.1: Global Scenario:

Faced with the fact of homosexual unions, civil authorities adopt different positions. At
times they simply tolerate the phenomenon, at other times they advocate legal
recognition of such unions, under the pretext of avoiding, with regard to certain rights,
discrimination against persons who live with someone of the same sex. In other cases,
they favour giving homosexual unions’ legal equivalence to marriage properly so-
called, along with the legal possibility of adopting children. Thus an increasing number
of jurisdictions have de criminalized homosexual acts. However, many jurisdictions
have retained their statutory prohibitions on homosexual acts despite much criticism
from groups and individuals who believe that the laws are obsolete and should be
removed. Anyhow the last century witnessed major changes in the conception of
homosexuality. Since 1974, Homosexuality ceased to be considered an abnormal
behaviour and was removed from the classification of mental disorder. Since then
homosexuality has been de-criminalized in different countries. There are various states
across the globe that enacted anti-discriminatory or equal opportunity laws and policies
to protect the rights of queer community.24
In the late 1990s and early 2000s, progress towards and bans of same-sex marriage
created a topic of debate all over the world. Currently, same-sex marriages are
recognized nationwide in six countries: Netherland (2001), Belgium (2003), Canada
(2005), Spain (2005) and South Africa (2006). The state of Massachusetts in the United
States also recognizes same-sex unions (although these marriages have no legal
recognition at the federal level in the US). With this an estimated 155 million people
worldwide, or approximately 2.5% of the world's total population, will live in places

24
http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/narrain/
 27

where same-sex marriage exists.25 That is civil unions and other forms of legal
recognition for same-sex couples, which offer most if not all the rights accorded in a
civil marriage, exist in Croatia, Denmark, Finland, France, Germany, Iceland, Israel,
New Zealand, Norway, Portugal, Slovenia, Sweden, Switzerland and the United
Kingdom. Regions of Australia and additional territories in the United States offer some
rights and responsibilities as civil Unions. Whereas more than 70 countries, including
India, consider homosexuality a crime, and 30 of these deny homosexuals even basic
human rights and the homosexual acts remain punishable by death in Afghanistan,
Mauritania, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, United Arab Emirates, and
Yemen, and by life in prison in Bangladesh, Bhutan, Guyana, India, Maldives, Nepal,
Singapore, and Uganda.17 Thus the legal position of homosexuals differs from country
to country. In England, for example, homosexual relationships involving anal
intercourse is not illegal between consenting adults as long as they are 21 or over and
conduct themselves in private. The age of consent varies too, according to the country
being as young as 10 in Hungary and as old as 23 in Spain.

25
http://www.fsw.ucalgary.ca/ramsay/gay-lesbian-bisexual/3ta-south-asia-homosexuality.htm
 28

3.2: LGBTQ Rights at United Nations;

People around the world face violence and inequality—and sometimes torture, even
execution—because of who they love, how they look, or who they are. Sexual
orientation and gender identity are integral aspects of our selves and should never lead
to discrimination or abuse. Human Rights Watch works for lesbian, gay, bisexual, and
transgender peoples' rights, and with activists representing a multiplicity of identities
and issues. The universality of human rights proclaims that every human being is
entitled to his or her basic human rights assigned with the birth. The starting of first
generation human rights is now entering into the fourth generation human rights. The
human rights history is attached with the Magna Carta (1215) but the term human rights
is first included in United Nations Charter, 1945 followed by Universal Declaration of
Human Rights, 1948. ‘Human Rights are expressions of basic freedoms, which require
access to and availability of basic necessities for all people to be reached through
processes that are built on the notion of equality, non-discrimination, participation and
empowerment’
Discussions of LGBT rights at the United Nations have included resolutions and joint
statements in the United Nations General Assembly and the United Nations Human
Rights Council (UNHRC), attention to the expert-led human rights mechanisms (such
as the United Nations Treaty Bodies and Special Procedures), as well as by the UN
Agencies.
✓ Since its founding in 1945, the United Nations political bodies had not discussed
LGBTQ rights (regarding equality regardless of sexual orientation or gender
identity) until 1994 resolution of the Toonen v. Australia case by the UN Human
Rights Committee, which dictated that the International Covenant on Civil and
Political Rights states that laws against homosexuality are a violation of human
rights.
✓ The first time governments took a public and explicit stance for or against the
inclusion and recognition of sexual orientation as part of women’s right to control
their sexuality. In September 1995, sexual orientation became a topic of debate in
the negotiations on the Draft of the 1995 Beijing Platform for Action 26at the 4th
World Conference on Women.

26 Richard Parker, Sex politics: from the frontlines. Available at http://www.sxpolitics.org/frontlines/book/

 29

✓ At that conference Beverley Palesa Ditsie became the first openly lesbian person to
address the United Nations regarding LGBT issues, calling for States to adopt
resolutions that recognized sexual diversity.
✓ In April 2003, Brazil presented a resolution prohibiting discrimination on the basis
of sexual orientation to the United Nations Commission on Human Rights.
However, in the ensuing debates the Commission voted to postpone discussions on
the resolution until 200427
✓ In December 2006, the discussions expanded to include gender identity, when
Norway presented a joint statement on human rights violations based on sexual
orientation and gender identity at the Commission on Human Rights on behalf of
54 states. This was followed by a joint statement presented at the General Assembly
by Argentina on behalf of 66 states in December 2008.
✓ The report, which came out in December 2011, documented human rights violations
based on sexual orientation and gender identity, including hate crimes,
criminalization of homosexuality, and discrimination.
✓ In 2016, the UNHRC passed a resolution to appoint an Independent Expert to find
the causes of violence and discrimination against people due to their gender identity
and sexual orientation, and discuss with governments about how to protect those
people. This long-term OHCHR-based mandate has been seen as the UN’s “most
overt expression of gay rights as human rights”. 28
✓ Also in 2016, the UN Security Council condemned the Orlando nightclub shooting;
this statement marked the first time the U.N. Security Council used language
recognizing violence targeting the LGBT community.

27
Resolution on sexual orientation and human rights- united nations commission on Human Rights-
28
The Washington Post. Morello, Carol. UN council create watchdog for LGBT Rights
 30

▪ 3.3 International Human Rights Instruments and Sexual

Minorities:

Since 1993, the United Nations High Commissioner for Refugees has decided that
homosexual persons are members of a ‘particular social group’ whose treatment is
regulated by international standards of human rights.29 These international instruments
for human rights are considered as international human rights instruments and includes
Universal Declaration of Human Rights (hereinafter UDHR), 1948, International
Covenant on Civil and Political Rights (hereinafter ICCPR), 1966 in addition with two
optional protocols, and International Covenant on Economic, Social and Cultural
Rights (hereinafter ICESCR), 1966. UDHR, ICCPR, ICESCR and two optional
protocols related to human rights are known as International Bills of Human Rights.
The provisions mentioned in these international instruments are general in nature and
universal in application. Generally, the international human rights framework talks
about providing all human rights to each and every individual without discrimination
of any kind. Since sexual minority persons are the member of human race by birth,
hence, the question of considering them a group or class of different characteristics
becomes secondary and their primary status as person remains protected by the nature
itself. This clearly indicates towards the applicability of all available human rights to
sexual minority persons without any further controversy. Hence, sexual minority
persons are entitled for human rights equally available similar to other persons in
society as far as the question of human status is concerned. ‘The term ‘peoples’ includes
individuals who have jus standi in international law in accordance with the functions
under applicable norms of international law such as human rights law. Their claim is
not for creating new law, legislation or rights but the claim stands for existing rights i.e.
human rights which are universal in application. There are various international
instruments regarding providing and protecting human rights to all and that are referred
here as international human rights framework and international human rights law
framework too that not only includes the human rights provisions in legal documents
but also norms, principles, resolutions, declarations said and agreed upon by the
international community.

29
United Nations High Commissioner for Refugees Handbook Protecting Refugees, 1996,
http://www.UNHCR/PI/Q&A-UK
 31

▪ 3.3.1 Universal Declaration of Human Rights (UDHR)

Provisions and Sexual Minorities:

The UDHR, 1948 (adopted by U.N. General Assembly Resolution 217-A (III) of 10th
December, 1948) was the first serious attempt to spell out individual human rights and
all subsequent instruments were drafted in the spirit of this declaration and provisions
regarding enforcement of individual and collective human rights were incorporated in
such instruments. The two other Covenants, namely, International Covenant on Civil
and Political Rights and International Covenant on Economic, Social and Cultural
Rights (1966) are the other two most important human rights instruments. These
instruments also contain provisions regarding enforcement of human rights enshrined
therein. 30
In understanding the importance of human rights, the role of provisions discussed in
UDHR, 1948114 are very much significant. Every article of UDHR gives light on
human rights of individual as well as group. While talking about the human rights
mentioned in UDHR provisions, the case of sexual minority persons’ human rights also
moves parallel to other persons. The language of such provisions makes it clear that
there is no restriction or denial of rights to all sexual minority persons on any of the
ground. The scope of application of human rights provisions in UDHR is universal.
Hence, it is clear to understand that the demand of sexual minority persons for their
rights is already recognized by UDHR provisions.

✓ Article 1: All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit
of brotherhood.
✓ Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status; Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person

30
Muntaqim, Khwaja Abdul. Protection of Human Rights: National & International Perspectives.
India, Law Publishers (India), 2004.
 32

belongs, whether it be independent, trust, non-self-governing or under any other

limitation of sovereignty.
✓ Article 3: Everyone has the right to life, liberty and security of person.
✓ Article 4: No one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms.
✓ Article 5: No one shall be subjected to torture or to cruel, inhumane or degrading
treatment or punishment.
✓ Article 6: Everyone has the right to recognition everywhere as a person before the
law.
✓ Article 7: All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
✓ Article 8: Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution
or by law.
✓ Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
✓ Article 10: Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations
and of any criminal charge against him.
✓ Article 11: Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defense; No one shall be held guilty of any penal
offence on account of any act or omission which did not constitute a penal offence,
under national or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the penal
offence was committed.
✓ Article 12: No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or
attacks.
✓ Article 13: Everyone has the right to freedom of movement and residence within
the borders of each State; everyone has the right to leave any country, including his
own, and to return to his country.
 33

✓ Article 14: Everyone has the right to seek and to enjoy in other countries asylum
from persecution. This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to the purposes
and principles of the United Nations.
✓ Article 15: Everyone has the right to a nationality. No one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality.
✓ Article 16: Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution;
Marriage shall be entered into only with free and full consent of the intending
spouses; the family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
✓ Article 17: Everyone has the right to own property alone as well as in association
with others. No one shall be arbitrarily deprived of his property.
✓ Article 18: Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his religion
or belief in teaching, practice, worship and observance.
✓ Article 19: Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers. Article
20: Everyone has the right to freedom of peaceful assembly and association; No one
may be compelled to belong to an association.
✓ Article 21: Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives; Everyone has the right to equal
access to public service in his country; The will of the people shall be the basis of
the authority of government; this shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures.
✓ Article 22: Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort and international co-operation and in
accordance with the organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the free development of
his personality.
 34

✓ Article 23: Everyone has the right to work, to free choice of employment, to just
and favourable conditions of work and to protection against unemployment;
Everyone, without any discrimination, has the right to equal pay for equal work;
Everyone who works has the right to just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection. Everyone has the right to form and
to join trade unions for the protection of his interests.
✓ Article 24: Everyone has the right to rest and leisure, including reasonable
limitation of working hours and periodic holidays with pay.
✓ Article 25: Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food, clothing, and housing and
medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood
in circumstances beyond his control.

The strenuous debates over same-sex marriage, largely in developed countries, point to
yet another minority rights issue in which the principles of equality in diversity are
being fought over. Belgium, The Netherlands, South Africa, and parts of Canada have
all extended marriage to include same-sex couples, either through legislation or the
courts. Under the UDHR, all men and women have the right to marry and found a
family. While the UDHR has tended to be interpreted in a heterosexist fashion, there is
nothing on the face of it that precludes the support of same-sex marriage.31

31
Daniel Fischlin and Martha Nandorfy, The Concise Guide to Global Human Rights 103 (Oxford
University Press, New York,
 35

▪ 3.3.2 International Covenant on Civil and Political Rights

(ICCPR) and Sexual Minorities:

The preamble of ICCPR says that: ‘The States Parties to the present Covenant,
considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world. Recognizing that these rights derive from the inherent dignity of the
human person, recognizing that, in accordance with the UDHR, the ideal of free human
beings enjoying civil and political freedom and freedom from fear and want can only
be achieved of conditions are created whereby everyone may enjoy this civil and
political rights, as well as his economic, social and cultural rights. Considering the
obligation of States under the Charter of United Nations to promote universal respect
for and observance of, human rights and freedoms. Realising that the individual, having
duties to other individuals and to the community to which he belongs, is under a
responsibility to strive for the promotion and observance of the rights recognized in the
present Covenant.32 Articles 1, 2, 3, 6, 7, 9, 10, 12, 14, 16, 17, 19, 21, 22, 23(2) (3), 25
(a) (b) (c), 26 of ICCPR are generally important. Human Rights Committee (Sixty-Sixth
Session), in para no. 16, it was discussed that the Committee is concerned about restrictions on
the right to privacy, in particular in regard to homosexual relations between consenting adults.
Non-discrimination is an explicit right under the International Covenant on Civil and
Political Rights (ICCPR), however, under the International Covenant on Economic,
Social and Cultural Rights (ICESCR), non-discrimination is not a right but is a
crosscutting principle. Therefore, in most United Nations (UN) discourse, it is accepted
as a “cross-cutting norm” which includes both dimensions.33

32
Muntaqim, Khwaja Abdul. Protection of Human Rights: National & International Perspectives.
India, Law Publishers (India), 2004.
33
Alicia Ely Yamin, ‘Shades of Dignity: Exploring the Demands of Equality in Applying Human
Rights Framework to Health’
 36

▪ 3.3.3 International Covenant on Economic, Social and Cultural

Rights (ICESCR) and Sexual Minorities

The preamble of ICESCR says that: ‘The States Parties to the present Covenant,
considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world. Recognising that these rights derive from the inherent dignity of the
human person, recognising that, in accordance with the UDHR, the ideal of free human
beings enjoying civil and political freedom and freedom from fear and want can only
be achieved of conditions are created whereby everyone may enjoy this civil and
political rights, as well as his economic, social and cultural rights. Considering the
obligation of States under the Charter of United Nations to promote universal respect
for and observance of, human rights and freedoms. Realising that the individual, having
duties to other individuals and to the community to which he belongs, is under a
responsibility to strive for the promotion and observance of the rights recognized in the
present Covenant’34 . Article 1, 2, 3, 4, 6, 9, 10, 11, 12, 13, 15, 18, 23 of ICESCR are
generally important. The ICCPR and ICESCR were adopted by the General Assembly
of the United Nations in Resolution, 2200 (xxi) of the December 16, 1966. Collectively,
the Universal Declaration of Human Rights (1948), International Covenant on Civil and
Political Rights, 1966 and its three protocols, International Covenant on Economic,
Social and Cultural Rights, 1966 and its two protocols are known as International Bill
of Rights and now converting as International Bill of Human Rights.

34
Muntaqim, Khwaja Abdul. Protection of Human Rights: National & International Perspectives.
India, Law Publishers (India), 2004.
 37

▪ 3.3.4 United Nations Human Rights Committee and Sexual

Minorities
There are at least six core human rights treaties, which have set up committees to
perform the task of monitoring States Parties in compliance with their obligation, which
are:
✓ Human Rights Committee (HRC) by the International Covenant on Civil and
Political Rights (ICCPR).
✓ Committee on Economic, Social and Cultural Rights (CESCR) by the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
✓ Committee on the Elimination of Discrimination against Women (CEDAW) by the
Convention on the Elimination of all forms of Discrimination against Women.
✓ Committee against Torture (CAT) by the Convention against Torture and other
Cruel, Inhuman and Degrading Treatment or Punishment.
✓ Committee on the Rights of Child (CRC) by the Convention on the Rights of the
Child.
✓ The Committee on the Racial Discrimination (CRD) by the Convention on the
Elimination of all forms of Racial Discrimination.
In its recently issued General Comment 20, the UN Committee on Economic, Social
and Cultural Rights (ESC Rights Committee) defined discrimination as “any
distinction, exclusion, restriction or preference or other different treatment that is
directly or indirectly based on the prohibited grounds of discrimination and which has
the intention or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing of ICESCR rights.35 In March 1994 in the case of Toonen v.
Australia HRC found that Tasmanian laws criminalizing all sexual relations between
men were in breach of the ICCPR, whose non-discrimination provisions were
interpreted as including “sexual orientation”. The HRC found a violation of the
ICCPR’s privacy provisions A-2, A-17. States are required to protect “all persons,
regardless of sexual orientation (or) transgender identity from torture and cruel,
inhuman or degrading treatment or punishment.”- United Nations Committee against
Torture.

35
HHR 3, available on www. hhrjournal.org.
 38

Table: Treaties Signed or Ratified by India36

S.No Treaty Signed Ratified
1 International Covenant on Economic, Social, and Cultural Rights Yes 10April
1979
2 Optional protocol to the International Covenant on Economic, No
Social and Cultural Rights
3 International Covenant on Civil and Political Rights Yes 10April
1979
4 Optional Protocol to the International Covenant on Civil and No
Political Rights
5 Second Optional Protocol to the International Covenant on Civil No
and Political Rights aiming to the abolition of the death penalty
6 Convention on the Elimination of All forms of Discrimination 30 July 9 July
Against Women 1980 1993

7 Optional Protocol to the Convention on the No

Elimination of All Forms of Discrimination against Women
8 International Convention on the Elimination of All Forms of 2nd March 3 Dec.
Racial Discrimination 1967 1968
9 Convention on the Rights of Persons with Disabilities 30 March 01 Oct.
2007 2007
10 Optional protocol to the Convention on the Rights of Persons with No
Disabilities
11 Convention on the Rights of the Child Yes 11 Dec.
1992
12 Optional Protocol to the Convention on the Rights of the Child on 14 Nov. 30 Nov.
the involvement of children in armed conflict 2004 2005
13 Optional Protocol to the Convention on the Rights of 15 Nov. 16 Aug.
the Child on the sale of children child prostitution and child 2004 2005
pornography
14 Convention against Torture and Other Cruel, Inhuman or 14 0ct. 1997 No
Degrading Treatment or Punishment
15 Optional Protocol of the Convention against Torture No

36
7 OHCHR. “Ratification Status for India”.
https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN
 39

▪ 3.4 HISTORY OF LGBTQ MINORITIES IN INDIA37

LGBTQ in Republic of India has been documented for various times, in recent times thanks to
unbanning of sexual activity and promotion of LGBTQ rights which has contributed to large
number of researches and opinions concerning the LGBTQ in Republic of India. No individual
has been executed for sexual activity in Indian history. Although people have been arrested due
to anti-homosexuality laws, no one is known to be guilty of homosexuality in India post-
decriminalisation.38

▪ 3.4.1 PRE-COLONIAL / ANCIENT ERA:

Homosexuality has an ancient history in India. The Rig Veda, which dates back to 1500 BC,
talks about the pre – patriarchal period where there was a system of thought, which was triadic,
anti – binary, focused on female sexuality. During this period importance was not attached to
the male – female couple, but on the notion of yoni that signifies the womb, the infinite source
of energy. The symbol of the yoni was a triangle, which consists of two points of lights
represented by the female twins and a third point that was the earth. The notion of twins or yami
signifies homosexuality. There are variety of ancient Indian texts that are relevant to
contemporary LGBT causes. The Arthasastra, an ancient Indian written material on diplomacy,
mentions a good variety of non-vaginal sexual practices that, whether or not performed with a
men or women, were sought after to be punished with low grade of fine. Whereas homosexual
intercourse wasn't sanctioned, it absolutely was treated as an awfully minor offence, and a
number of other types of heterosexual intercourse were punished additional severely. Sex
between non-virgin girls incurred an awfully little fine, whereas homosexual intercourse
between men was sought-after to be censured by a prescription of a shower with ones garments
on, and a penance of “eating the 5 product of the cow and keeping a one-night fast” – the
penance being a replacement of the standard construct of homosexual intercourse leading to a
loss of caste. Though homosexuality was considered a part of sexual practices it was not always
well accepted. There were punishments prescribed for homosexual behaviour by Manu Smriti.

37
https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/LGBT_hist
ory_of_India.html
38
Same-sex Love in India: A Literary History. India, Penguin Random House India, 2008.
 40

▪ 3.4.2 Medieval Period and Homosexuality:

During this period, homoerotic were mentioned in non-pejorative way. Homoerotism

got ‘official patronage’ with the Arab-Persian –Islamic cultural invention into the
subcontinent. During this period love of boys was practiced at the court of the Muslim
rulers and Urdu and Sufi poets celebrated it. Baber, the first Mughal emperor of India
had written romantically about his love affair with boy, Baburi, at Andezan, in the work
Tuzuk e Babri (Baburnama).39 In certain Pathan tribes, homosexuality was open and
the accepted norm. Many Muslim nawabs were known to keep a separate seraglio of
young boys. Scattered references to same-sex love can be found in the literature of the
early medieval period, while in the late medieval period one can find a huge body of
literature on homosexual relations. The sculpture of medieval period too suggests the
homoerotism in that period. The thousand – years – old carvings seen in the Khajuraho
temple constructed by the Chandela rulers of medieval India carry images of women
erotically embracing other women and men displaying their genitals to each other.
Medieval poetry also depicts romantic and erotic interactions between men across class
and religious divides. Mir’s ghazal Shola-I-ishq is an example of a love affair between
two men, one Muslim and one Hindu. Other institutions that grew substantially are
slavery and harems. Even though domestic slavery existed in pre – Islamic India, it
became much more organized in the medieval period with a predominance of young
boys as slaves. Included among the slaves was large number of eunuchs. Eunuchs were
a prized commodity because they were considered the most reliable slaves. Their links
with their owners were the closest personal links they had. They were therefore often
entrusted with the most responsible positions. Eunuchs were the guardians of the
harems, the institutions that defined the relationship between the sexes among the ruling
elite.

39
Joseph, Sherry. Social Work Practice and Men Who Have Sex with Men. India, SAGE Publications,
2005.
 41

▪ 3.4.3 Colonial era:

With the start of British colonization, the destruction of the images of homosexual
expression and sexual expression in general became more systematic. The influence of
imperialist Britain on Indian sexuality took the form of repression and domination. The
Victorian puritanical value system had strong reproductive assumptions about
sexuality. This value system got reflected in the statutes drafted and adopted in India
during that period. The British Rule in India prohibited homosexual relations under
Section 377 of IPC that got in into force in 1861. This section clearly brings forth the
use of terms like ‘unnatural’ and ‘order of nature’. It absolutely was equally instituted
throughout most of land British Empire because of the Christian spiritual beliefs of
British colonial governments. The Judeo – Christian ideology, any sexual activity that
was non – procreative in nature was dubbed as ‘unnatural’ and against the ‘order of
nature’. This section is primarily focused on the act of Sodomy (anal intercourse)
between men or between man and woman and bestiality.
 42

▪ 3.4.3 MODERN INDIA:

The post – independence period brought home the concept of freedom of expression,
equality and liberty, and a Constitution for India. The fundamental rights enshrined in
our constitution entail non – discrimination based on caste, creed, language, and sex.
The architects of the constitution used the term ‘sex’ in the strict anatomical sense of
being a man or woman. There was a deep silence on the existence of sexual minorities
and their sufferings and discrimination faced from the mainstream heterosexual society.
Even if it is assumed that homosexually people were not very visible during this period,
the relatively large visible group of hijras who carried a socio – religious identity was
derived adult franchise. In 1994, the Election Commission gave a directive that hijras
shall be enrolled in the electoral rolls by mentioning their gender as either male or
female. Recently Election Commission gave instruction for including “others” as third
category in electoral role for identifying the ‘sex’ of the voters.

In 1977, Shakuntala Devi printed the primary study of sex in India. While convictions
under Section 377 were rare, with no convictions in the least40 for homosexual
intercourse within the twenty years to 2009, Human Right Watch have reported that the
law was used to harass HIV/AIDS prevention activists, also sex employees/workers,
men who have intercourse with men, and different LGBTQ groups. The cluster of
documents show arrests in Lucknow of 4 men in 2006 and another 4 in 2001.
Homosexual intercourse was a criminal offence till 2009 by the virtue of Sec 377 of the
IPC, 1860. This also declared it to be an offence for someone to voluntarily have “carnal
intercourse against the order of nature.”

The last two decades saw swift changes in the socio – political life of men who have
sex with men in India. With the solidification of groups in different parts of country
some effort was made to make them more visible in society. With the support of some
progressive human rights groups, the sexual minorities are also making attempts to
change the attitudes of society towards them.

40
Shakuntala Devi, The World of Homosexuals, available at:
https://books.google.co.in/books?id=PBwbAAAAYAAJ&redir_esc=y
 43

▪ Present status of homosexuality in world:

Around 136 countries of the world recognize homosexuality in one or the other form.
But today also, few countries like Uganda, Nigeria continue to legislate negating the
human rights of homosexuals. Otherwise, many countries have opened up giving wider
rights to LGBT People. Marriage of gay/ lesbian couple is permitted in Netherlands,
Canada, & Belgium. Countries allowing registered partnership of gay/ lesbian couple
are Denmark, Greenland, Iceland, Norway, Sweden & US. Countries in which adoption
by homosexuals is legal are Sweden, Denmark, Iceland, Holland, South Africa & 23
states of US. Country Laws recognizing gay/ lesbian couple for immigration are
Belgium, Denmark, Finland, France, Netherland, New Zealand, Norway, South Africa,
UK, US. The latest edition of nations favoring homosexuals is Nepal, which has
recently given legal status to homosexuality & England which had its first Gay marriage
in March 2014. On the contrary, Countries penalizing homosexuality with death penalty
are mostly the countries of Middle East, South & Central Asia, especially in Muslim
nations like, Saudi Arabia, Iran, Afghanistan, Kazakhstan, Nigeria, Sudan & Yemen.

Latest in January 2014, Nigeria has passed a law that makes same-sex marriage illegal,
along with public displays of same-sex relationships and belonging to homosexual
groups. The law enshrined rules down punishments for those that violate it. This
includes those in a same-sex marriage or civil union being sentenced to 14 years in
prison and foreign partnerships being "void"; additionally those who register, operate
or participate in gay clubs, societies and organizations or who directly or indirectly
makes public display of affection as part of a same-sex relationship would be punished
with up to 10 years in prison.

On the other hand, In February, 2014 The Scottish Parliament approves same-sex
marriage bill. 41

In March, 2014 In England and Wales, same-sex marriages are performed under the
Marriage (Same Sex Couples) Act 2013. India officially recognizes a third gender after
a Supreme Court ruling. It paves the way for access to welfare schemes along the lines

41
http://in.reuters.com/article/2014/02/04/britain-scotland-gay-marriage-idINDEEA130EW20140204
 44

of other minority groups in the country.42 But on the adverse side, Supreme Court of
India over turned the Delhi High Court Judgment legalizing consensual
homosexuality.43 In 2021, being LGBTQ+ is still criminalized around the world. 68
countries criminalize gay sex. 6 countries can legally prescribe the death penalty for
same-sex relations. 5 additional countries have the death penalty for gay sex on their
statute books.44

As of December 2020 there were at least 42 UN member states legally curtailing

freedom of expression on LGBTQ+ issues. In March Ghana, where gay sex is illegal,
planning to further criminalize LGBTQ+ rights continued.45 While Africa accounts for
about half the countries globally with anti-LGBTQ laws, violence against LGBTQ+
people is still extensive in countries with legal protections. In 2020 Colombia reported
75 LGBTQ+ people killed and Hate crimes against LGBTQ+ people in Germany rose
36%46. In recent years, eastern European countries – notably Poland and Hungary –
have become increasingly homophobic. In Poland, around 100 municipalities have
passed anti-gay resolutions, known as ‘LGBTQ-free zones’ Twenty years since Holland
allowed the world’s first gay weddings, 33 countries now recognize same-sex civil
partnerships.

In India the law was struck down by the 2009 Delhi HC decision in Naz Foundation v.
Govt. of NCT of Delhi that found Section 377 and alternative legal prohibitions against
same-sex conduct to be in direct violation of rights provided by Part III of the Indian
Constitution. Decisions of the High Court on the constitutionally of a law (i.e. judicial
review) apply throughout Republic of India, and not simply to the territory of the state
over that the court in question has jurisdiction. However, even after the pronouncement
of verdict, there are incidents of harassment of homosexual teams.

42
Supreme Court of India in April 20124 gave a historic verdict recognizing the third gender in India.
Due to this transgender community in India get recognition and can have a better claim and access to
welfare schemes meant for minority community in India.
43
Suresh Kumar Kaushal v. Naz Foundation of India AIR 2013 S.C.
44
https://t.co/S664hoCyRH
45
https://t.co/qFFjZEyUO1
46
https://t.co/pmPmPzx4xe
 45

▪ Important landmark judgements worldwide with regards to

LGBTQ+

✓ Lawrence v. Texas, 539 U.S. 558 (2003): U.S SC ruled that sanctions of criminal
punishment for those who commit sodomy are unconstitutional.
✓ Obergefell v. Hodges, 576 U.S. 644 (2015): Supreme Court of the United States
ruled that the fundamental right to marry is guaranteed to same-sex couples
✓ Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003): landmark
Massachusetts Supreme Judicial Court case in which the Court held that the
Massachusetts Constitution requires the state to legally recognize same-sex
marriage.
✓ Baker v. Vermont, 744 A.2d 864 (Vt. 1999): It was one of the first judicial
affirmations of the right of same-sex couples to treatment equivalent to that afforded
different-sex couples. The decision held that the state's prohibition on same-sex
marriage denied rights granted by the Vermont Constitution.
✓ Lewis v. Harris, 188 N.J. 415; 908 A.2d 196 (N.J. 2006), is a New Jersey Supreme
Court case that held that the state's marriage laws violated the rights of same-sex
couples to equal protection of the law under the state constitution.
✓ Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407: is a
2008 decision by the Connecticut Supreme Court holding that allowing same-sex
couples to form same-sex unions but not marriages violates the Connecticut
Constitution. This case legalized same-sex marriage in Connecticut.
✓ 2008 Case of E.B. v. France: The Court pointed out that French law permits
adoption by a single individual, thereby opening up the possibility of adoption by a
single homosexual, which is not disputed.
✓ 2003 Case of van Kück v. Germany: gender identity is one of the most intimate
areas of a person's private life. The burden placed on a person in such a situation to
prove the medical necessity of treatment, including irreversible surgery, appears
therefore disproportionate. In these circumstances, the Court found that the
interpretation of the term "medical necessity" and the evaluation of the evidence in
this respect were not reasonable.
✓ 2009 Constitutional Court of Colombia - Sentence C-029 de 2009: The
Constitutional Court granted civil, political, social, economic, immigration and
criminal rights to gay and lesbian couples.
 46

▪ Chapter IV: LGBTQ+ and The Ambit Of Constitution

Of India And Indian Statues

Constitution of India is supreme law of land. It is one law that governs all the laws. All
the laws are meant to be in accordance with provisions of the constitution. If not, the
Supreme Court or the High Courts have the power to even strike down the law. The
main objective of the constitution is to promote harmony and unity throughout the
nation. It provides a way of life. India is a vast and diverse country and attitudes towards
this subject and experiences of LGBTQ individuals vary vastly. The disparity between
urban and rural India, language, caste, class and gender add further complexities to
understanding this topic more fully. But what we do know is that India’s LGBTQ+
citizens are not a “minuscule minority”. They have a voice that is strong and refuses to
be silent any longer in their efforts to reclaim equality. People of all sexual orientations
and gender identities are entitled to the full enjoyment of human rights.

▪ 4.1 Preamble:

The initial words “WE, THE PEOPLE OF INDIA” itself represent that the
constitution reflects the hopes and aspirations of the people of India. The term “we”
indicates the ultimate sovereignty of the people of India.

The preamble to the Indian Constitution mandates justice -- social, economic, and
political equality of status -- for all. The Constitution provides every person an equal
status before the law and an equal protection of laws within the territory of India. The
word “any person” here means every individual, without any discrimination based on
any of the category which includes, caste, creed, religion, sex, etc. A transgender in
India is included within the words “any person” and is given equal status to that of
every cis-gender in India. The transgender community cannot be discriminated on the
ground of non-application of any of the laws within the nation by reason of their
differences and dividing them based on any arbitrary class. The key word with regard
to the protection of Transgender is the word “sex”. The interpretation of the word “sex”
includes these communities irrespective of them falling under the category of male or
female.
 47

Preamble also states Liberty of thought, expression, belief, faith and worship.
Although these words are usually taken interpreted in the religious context, it is
extremely essential to understand that religion is included but isn’t limited to it. These
words grants a person the liberty to express themselves as to who they are. Expression
of identity holds a lot amount of significance to a person especially with reference to
gender identity. Most of the Indians still need to realize the basic fact that more than 3
genders exist and a non-binary, gender fluid or agender etc. has every right to express
as to who they are. The term ‘Liberty’ means freedom for the people to choose their
way of life, have political views and behavior in society. Liberty does not mean freedom
to do anything, a person can do anything but in the limit set by the law. Unfortunately
the law which is supposed to provide rights, liberty, and justice is itself creating a
deterrence for the sexual minorities by staying silent on numerous topics.

The term “Equality” means no section of society has any special privileges and all the
people have given equal opportunities for everything without any discrimination.
Although the harsh reality of our country resides in the fact that heterosexuality grants
multiple privileges with respect to basic fundamental rights and sexual minorities are
deprived of them.

Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional

attachment with the country and all the people. Fraternity helps to promote dignity and
unity in the nation. But India being the country where most of the people are
homophobic and the laws not only deny rights but actually criminalize them, it is rather
difficult to expect acceptance and a sense of acknowledgement form the society in
general.
 48

▪ 4.2 Part II: Citizenship

Article 5-11 of the Indian Constitution deals with the concept of citizenship. The term
citizenship entails the enjoyment of full membership of any State in which a citizen has
civil and political rights. It provides with modes of accessing citizenship. It comprises
in detail regarding access if by birth or migration etc. Citizenship is the status of a
person recognized under law as being a legal member of a sovereign state or belonging
to a nation.

▪ 4.3 Part III-Fundamental Rights:

It is humbly submitted that the Part III of the constitution primarily carries the common
theme of human right. The fundamental rights are basic rights of the people. They are
considered as basic rights to live a perfect life. Talking about the fundamental rights
under Indian Constitution, such rights are categorically available to all persons, citizens
and different groups like women, child, schedule caste, schedule tribes, and various
minority community groups. Because the sexual minority persons are under the
definition of a ‘person’ so the scope of fundamental rights in general and minority rights
in particular is extended to them as well.

✓ Article 13 (2) "The State shall not make any law which takes away or
abridges the rights conferred by his Part and any law made in
contravention of this clause shall, to the extent of the contravention, be
void.”

So, according to the constitutional provisions, Section 377 violates number of

fundamental rights of the homosexual people. S.377 by criminalizing homosexuality
even when performed by two consenting adults had violated almost all the fundamental
rights. Plus the denial of basic rights of liberty and dignified life makes the matter even
worse.
 49

✓ Article 14 – Equality before law: "The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India47
The right may have provided equality but it is far from reality when it comes to sexual
minorities. This is clearly evident from how the Centre has told the Delhi HC that there
is no fundamental right to seek recognition for same-sex marriage48 and thus denying
them from having right to spouse and establishing a family which are significant factors
for any living organism let alone humans.

✓ Article 15 (1) "The State shall not discriminate against any citizen on
grounds only of religion, race caste, sex, and place of birth"

The expression "sex" is fluid and is not a static concept. It cannot be restricted to only
the biological male and female sex. It is not an essential condition that the law expressly
makes the prohibited ground for the basis of classification. As held by the Supreme
Court. "The courts are always had to interpret any law by the way of 'schematic and
teleological' method of interpretation. All it means is that the judges do not go by the
literal meaning of the words or by the grammatical structure of the sentence. They go
by the design of purpose which lies behind it.49 Hence in present scenario the term
"Sex" has a wider meaning and it includes sexual orientation as well which includes
homosexual people. The prohibition of discrimination on the ground of sex is intended
to prohibit the attachment of standard behavioural pattern to gender. The purpose
underlying the fundamental right against sex discrimination is to prevent behaviour that
that treats people differently for reason of not being in conformity with generalizations
concerning "normal" gender roles. As per SC “It is enough for a law to be struck down
as being discriminatory on a prohibited ground that the law operates so that its effect in
some cases is that some persons are discriminated only on the basis of a prohibited
ground."50

47
P.M.Bakshi, Constitution of India, Universal Law Publishing
48
https://timesofindia.indiatimes.com/india/same-sex-relationships-not-comparable-with-india-family-
unit-made-of-biological-man-and-woman-centre-tells-hc/articleshow/81218712.cms
49
Fuzlunbi V. K.Khader Vali, AIR 1980 SC 1730
50
Punjab Province v. Daulat Singh AIR 1946
 50

✓ Article 19- Right to Freedom:

Freedom is one of the most important ideals cherished by any democratic society. This
one article actually comprises of following freedom and each one hold great
significance for an individual.
➢ Freedom of Speech and Expression
➢ To assemble peacefully and without arms
➢ To form associations or unions
➢ To move freely throughout the territory of India
➢ Freedom to reside in any part of the country
➢ Freedom of profession

Although sexual minorities have been blessed to have enjoyed some of these freedom
like association and assemble in the form of pride parades, other freedoms like speech
and expression are denied and their pleas just go unheard.

✓ Article 21: Protection of right and personal Liberty

This right has become an inexhaustible source for many other lives.51 These rights much
available to citizen as to foreigner.52 And this article has been given paramount
positions by the hon'ble Supreme Court. Homosexual people are also included under
article 21 as they are also human beings. The word life in the Article 21 does not confine
itself mere animal existence, but the word life encompasses wider meaning than mere
an animal existence in the society.53 The inhabitation against its deprivation extended
to all those limbs and faculties by life is enjoyed. The provision also equally prohibits
the mutilation of the body by amputating off any of the body or any other organ through
which the soul communicates with outer world. And sexual orientation not being outer
part of the body but if a person deprived of being having sexual orientation this also
amount to mutilation of the body.
"There are minimum human requirements which exist in order to enable a person to
live with human dignity, and no state has right to take away action which will deprive

51
Bhagwati J. in Maneka Gandhi V. Union of India, AIR 1978 SC 597
52
National Human Rights Commission V. State of Arunachal Pradesh, 1996, SCC 742.
53
Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295
 51

a person of the enjoyment of this basic essentials.54 Following are the facets of Life
under A-21

➢ Right to privacy:

The privacy is that "area of a man's life which in any given circumstances a reasonable
man with an understanding of the legitimate needs of the community would think it
wrong to invade". Although Indian constitution like America does not guarantee right
to privacy explicitly, yet we may say that right to privacy is implicit in Article 21 of the
Constitution. A question arose for the first time in Kharak Singh v. State of U.P55
whether right to privacy is included in the right to personal liberty, Justice Subba Rao
speaking for minority held that “right to privacy though not expressly declared in our
constitution an essential ingredient of the personal liberty”.
In the case of R. Rajagopalan v. State of Tamil Nadu56, the Supreme Court held that
“it is right to be let alone and a citizen has the right to safeguard the privacy of his own,
his family marriage protection, motherhood, child-bearing and education among other
matter. No one can punish anything concerning the above matter without his consent
whether truthful or otherwise and whether laudatory or critical”. As far as this matter is
concerned, the impugned section clearly violates the right to privacy guaranteed by the
Constitution as it peeps into the houses of people without their consent and still
punishes them for their private matters. Although now the section has been
decriminalized courtesy of SC, it still remains part of the IPC. Generally, criminal
provisions are justified on the basis that they prevent harm. In the realm of sex, whether
or not harm is caused is dependent on consent. Where consent is given (by major) a
person is not harmed and the conduct falls back with the realm of personal autonomy
that does not require policing by the State. Only where there is no consent is criminal
sanction justified. It is also recognized that at the core of the right to privacy are those
matters related to one's private life and intimate relationships. This sphere of private
intimacy and autonomy must allow persons to develop human relationships without
interference from the outside community or from the State. The right to privacy is thus
premised on the proposition that there exists a zone of privacy created by various

54
Bandhu Mukti Morcha V. Union of India AIR 1984
55
AIR 1963 Sec 1295
56
(1994) 6 Sec 632
 52

fundamental rights into which the State cannot intrude. It is submitted that sexual
intimacies between individuals whether homosexual or heterosexual, fall within the
protected zone of privacy, Section 377, by criminalizing certain consensual sexual acts,
violates the right to privacy. Hence the impugned section clearly violates right to
privacy of the people concerned and hence violates right to life and personal liberty
guaranteed under the Constitution of India.

➢ Human Dignity:
In this matter, section 377 of IPC affects dignity of a man as it exposes a person of
his sexual orientation and also punishes him and sends him to prison which violates
his right to live a dignified life. The Indian courts need to recognise that they cannot
permit the state to continue to demean the existence of people with same sex desires
in this country. S 377 with its broader shadow of criminality is the biggest affront
to the dignity and humanity of a substantial minority of Indian citizens. The courts
need to acknowledge that by decriminalising sodomy they have not permitted a
mere sexual activity, but decriminalise the lives of actual citizens who are connected
to that sexual act.

➢ Health:
These gay populations are mostly reluctant to reveal the same sex behaviour due to the
fear of law enforcement agencies, keeping a large section invisible and unreachable and
pushing the infection underground, making it difficult for Health Ministry to access
them. Officials of UNAIDS say that there is no data on the gay population in India as
even collect such information is illegal under Section 37757. It gives clear idea of
problem created by the impugned section that because of this section, even UN officials
are not able to prevent AIDS in India.

57
Times of India, 17 September, 2006
 53

➢ Recognition and identity

Recognition of gender identity provides the recognition of their right to dignity and
non-recognition violates the same, they have full right to express and live their life
without fear. Also, the right to reputation extends to their protection.

➢ Right against Sexual Harassment at Workplace:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act or POSH Act only recognizes women as victims of sexual harassment
at the workplace58. This automatically precludes the possibility of LGBTQ+ people
being victims of sexual harassment at workplace. This right had come into existence
for the aid of women. But the fact remains that even the members of sexual minorities
often become the victims of sexual harassment. The only difference remains that their
voices are silenced due to societal pressure and fear of stigma and the cases are not even
reported. Laws pertaining to sexual harassment (Section 354 A), assault or use of
criminal force to woman with intent to disrobe (Section 354-B), voyeurism (354 C),
stalking (354 D) all operate in the male-female binary. As per Indian laws males are
always the perpetrators and women are victims. So what about rights of the male or
even transgender who get sexually harassed?

➢ Right against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under Art.
21. Right to life right to live with human dignity. Right to life, would, therefore, include
all those aspects of life that go on to make life meaningful, complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that “Rape
is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. Here again SC used the term women as if rape can be performed only on
the women. Male and transgender just go unnoticed.

58
Vishakha v. State of Rajasthan AIR 1997 SC 3011
 54

➢ Right to Livelihood:

With the definition of the word “life” in Article 21 in a broad and expansive manner,
the court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath
Nandkarni came to hold that “the right to life” guaranteed by Article 21 includes “the
right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal
Corporation, popularly known as the “Pavement Dwellers Case” a five-judge bench of
the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no
person can live without the means of living, that is, the means of Livelihood.

➢ Right against Honour Killing:

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P59, took
serious note on harassment, in ill-treatment and killing of a person who was a major,
for wanting to get married to a person of another caste or community, for bringing
dishonor to family since inter caste or inter-community marriage was not prohibited in
law, the court said that such practice of “honor killing” was a blot on society. The court,
therefore, directed the police to take strong measures, against those who committed
such ‘honor killing’. Now the question remains, does this right be limited only for inter-
caste, inter-religion couples? Shouldn’t this be applicable to the couples who are
tortured and killed because they loved someone of their own gender? Lack of justice to
these couples puts a stain not only on the face of society but on the judiciary as well.

➢ The right to marry a person of one’s choice:

It is integral to Article 21 of the Constitution.60 Deprivation of that freedom which is
ingrained in choice on the plea of faith is impermissible. Getting married is the ultimate
way of showing your love and commitment to your partner, so why gay people should
be deprived of this right. e. It is observed that absolutely no reason, apart from blind
prejudice, which prevents two gay people going through a civil ceremony which will
give them the rights and securities which heterosexual couples enjoy. Marriage is a sign
of commitment and love. If two men or two women want to show that commitment,
how does that destroy or damage the ideals of marriage.

59
AIR 2002 NOC 265
60
Lata Singh vs State Of U.P. & Another AIR 2006
 55

By depriving homosexuals this basic human right, we the people of India have
converted this Right to marry into a heterosexual privilege. By extension heterosexual
couples are deprived of all the facilities like insurance, medical aid, joint bank accounts,
family pension, gratuity or funds to the families, loans and the list can get never ending.

➢ Right to found a family:

The right to family life is the right of all individuals to have their established family life
respected, and to have and maintain family relationships. The LGBTQ+ community
still doesn’t have the right to marry in India, and parenthood is out of the question for
most. Since LGBTQ+ people are denied right to marry or right to adopt, they cannot
even have a family of their own with the person they love. Well, being married
shouldn’t even be a compulsion in order to be a parent. But both the things are far from
reach for LGBTQ Community. In a country where rights for single parents and live-in
couples with children is still an arduous battle, the discrimination against LGBTQ+
parents is not even part of public conversations. The right to parenthood for people of
the LGBTQ+ community is not recognised or accommodated by law or even society.
Although the Supreme Court has in past judgments interpreted the scope of Article 21
of the Constitution – the right to life and personal liberty – to include the right to
motherhood and right to reproductive autonomy, this does not seem to apply equally to
same-sex couples, transgender individuals and the LGBTQ+ community more
generally. In fact, Article 16 of the United Nations’ Universal Declaration of Human
Rights states that “men and women of full age… have the right to marry and to found
a family.” The phrasing in this 72-year-old document is exclusionary; but even in the
India of 2021, the right to begin a family is only available to heterosexual cisgender
men and women.

➢ Right to sexuality: A question that needs to be answered before discussing the

right to sexuality is why there is a need for such a right in the first place. At one
level, sexuality and sex are at the center of gender relations. Sexuality is so basic
to the self that its denial derogates against the very idea that each person has a
fundamental human right to a wholesome life.
 56

✓ Right against Exploitation (Articles 23 – 24):

This right implies the prohibition of traffic in human beings, beggar, and other forms
of forced labour. It also implies the prohibition of children in factories, etc. The
Constitution prohibits the employment of children under 14 years in hazardous
conditions.

✓ Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all
religions. There is freedom of conscience, profession, practice and propagation of
religion. The State has no official religion. Every person has the right to freely practice
his or her faith, establish and maintain religious and charitable institutions. Since almost
all major religions in India are strictly against homosexuality, the LGBTQ members are
not allowed to worship at any of the holy places or allowed to participate in religious
events.

✓ Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by
facilitating them to preserve their heritage and culture. Educational rights are for
ensuring education for everyone without any discrimination. But how often do we get
to see a transgender studying with the cisgender? This clearly shows that the above
mentioned right is just on piece of paper and not in reality

✓ Right to Constitutional Remedies (Article-32)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are
violated, the aggrieved party can approach the courts. Citizens can even go directly to
the Supreme Court which can issue writs for enforcing fundamental rights. Although
the LGBTQ have been fighting for their basic rights since years and courts haven’t been
has helpful as it can have been.
 57

▪ 4.4 Directive Principles of State Policy:

✓ Article 38:
It provides that the State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the national life
and the State shall, in particular, strive to minimize the inequalities in income, and
endeavor to eliminate inequalities in status, facilities and opportunities.

✓ Article 39

• Right to adequate means of livelihood for all citizens

• Equitable distribution of material resources of the community for the common
good
• Prevention of concentration of wealth and means of production
• Equal pay for equal work for men and women
• Preservation of the health and strength of workers and children against forcible
abuse
• Opportunities for the healthy development of children

✓ Article 44:

Secure for all citizens a uniform civil code throughout the country. This might
probable be the best solution for all the hindrances caused due to exclusion of
LGBTQ

▪ 4.5 Fundamental Duties (Article- 51A)

✓ Abide by the Indian Constitution and respect its ideals and institutions, the
National Flag and the National Anthem- Most of the fundamental rights are
denied to the LGBTQ while it is the duty to abide constitution. Irony!
✓ Promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities and to renounce practices derogatory to the dignity of women: the
reality of homophobia and violence continues to exist.
 58

▪ 4.6 Indian laws/Acts:

There are various Indian statutory provisions that either violate the rights of sexual
minorities or even criminalize the acts that are done by consensual adults. These
provisions are causing a great hindrance and deterring a LGBTQ+ from having a
peaceful, dignified life.

✓ 4.6.1 Indian Penal Code, 1860:

➢ Sec.377: Unnatural offences – 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 10 years, and shall be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section. The core problem with Section 377 has been its
blanket coverage of both exercise as well as consensual sex within its prohibition. The
wording of ‘carnal intercourse’ remains vague enough to encompass all sexual acts
which are non-progressive in nature. The broad wording of the provision itself gives
the police enough power to target queer people arbitrarily. The statute, unlike many
other similar laws, does not define a specific offence of sodomy. As a piece of
legislation, Sec. 377 IPC applies a vague offence without defining what “carnal
intercourse” or “order of nature” are to the general public at large, the only criteria being
“penetration”. This law though not specifically mentioning homosexuals, directly
targets them.

➢ S.292: Sale of obscene books etc. Section refers to obscenity and there is
ample scope to include homosexuality under this section.
➢ S.294: Penalizes any kind of "obscene behaviour in public", is also used
against homosexuals. Even the non PDA yet romantic gesture of holding
hands or having an arm around the waist or shoulder of their partners can
account to illegal behavior.
➢ S.376: The section deals about rape but only in the context of a woman being
victim. This clearly ignores sexual offences on males and transgenders or a
woman being perpetrator and not a victim.
 59

✓ 4.6.2 The transgender persons’ (protection of rights) act, 2019

The Transgender Persons’ (Protection of Rights) Bill61 was passed by the Lok Sabha
without much dissent on 5th August 2019. The bill was passed after many efforts still
it serves no good to the community and has several lacunae. Almost all the definitions
in the act are either redundant or profuse regarding the community issues. The chapter
which prohibits discrimination lacks enforcing authority, remedial measures and
punitive measures. The Complaint officer, as stipulated in the bill is very unclear and
as of now, it is completely non-existent. The restriction on the separation from parents
and allowing them to separate only with an order of a competent court is totally
unreasonable. There isn’t a single organized protocol in the act that guides the medical
community on the healthcare of transgender person. The act has no provision to
apprehend those who discriminate, bully or harass them. This act deprives the
community of some of the most basic and fundamental rights a person should have.

✓ 4.6.3 Protection of Human Rights Act, 1993 and Sexual

Minorities

After the international community pressure, a specific legislation namely ‘The

Protection of Human Rights Act, 1993 was enacted in India. This was a milestone step
in terms of human rights protection in India. Although this Act also does not include
the term ‘sexual minorities’ but because of general relationship of person with sexual
minorities, this legislation is exclusively important one. ‘As regards the expression
‘human rights’, it may be defined from various angles, the individual, collective, moral,
legal, political, social, theocratic or religious, economic, historical or international
viewpoints. As regards a single definition of the term, the definition of the term as given
in the Protection of Human Rights Act, 1993 is the most exhaustive one and it has been
drafted by taking all the said viewpoints into consideration. Sec. 2(d) of the Act defines
the term ‘human rights’ as: “Human Rights mean the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by courts in India”.62

61
The Transgender Person’ (Protection of Rights) Act, 2019
62
Muntaqim, Khwaja Abdul. Protection of Human Rights: National & International Perspectives.
India, Law Publishers (India), 2004.
 60

✓ 4.6.4 The Citizenship Act, 1955:

Which provides for the acquisition and determination of Indian Citizenship also
doesn’t, expressly or impliedly require a determinate sex or gender identity as a pre-
condition for acquiring citizenship. For someone to be a voter (elector), he/she needs to
be a citizen of India. The committee of India has taken special measures to enroll the
transgender persons as electors. The definition of “person” under the overall Clauses
Act, 1897 is couched in even wider terms. The Act defines someone to include any
company or association or body of individuals, whether incorporated or not’. Though
Section 13 of the Act stipulates that words importing the masculine gender shall be
taken to incorporate females, this stipulation is itself conditioned by the statutory
direction that this can be so unless there’s anything repugnant within the subject or
context.

✓ 4.6.5 Immoral Traffic Prevention Act (ITPA), 1956 (amended

in 1986)

It is the principal instrument which prevents the trafficking of women and children into
prostitution. With the Amendment of 1986, the scope and ambit of the Act now became
applicable to both male and female sex workers and also to those whose gender identity
was indeterminable. Thus, both male and hijra sex workers became criminal subjects
of the ITPA and it provided the legal basis for arrest of the transgender sex workers
population. Surprisingly, the Indian Council for Medical Research (ICMR) and Indian
Medical Association (IMA) have not yet framed any guidelines for Sex Reassignment
Surgery (SRS).

✓ 4.6.6 Hindu Marriage Act, 1955

Section 5 of the Hindu Marriage Act of 1956 mentions that "marriage can be performed
between 'any two Hindus’ and does not distinguish based on sex or gender, the right of
same-sex couples to marry should be recognized under the said Act. Only section 5(ii)
and section 7(2) uses the term bride and bridegroom. Rest all other section mentions
neutral terms like ‘person’ or ‘party’. The term bride and bridegroom may be interpreted
as roles which parties may prefer in a relationship. Hence, the Act is neutral other than
using bride and bridegroom in these two sections.
 61

✓ 4.4.7 The Indian Christian Marriage Act, 1872: Regulates the marriage
and divorce of Indian Christian persons. An ordained minister of a church or a
marriage registrar may conduct marriages under the Act.
✓ 4.6.8 Special Marriage Act, 1954: Provides for marriage for all Indian
citizens regardless of the religion of either party. Marriages contracted under this
Act are registered with the State as a civil contract. The Act applies to Hindus,
Muslims, Sikhs, Christians, Jains, Buddhists, Parsis, partners with no religious
beliefs as well as interfaith couples.
✓ 4.6.9: Foreign Marriage Act 1969: A marriage between parties one of
whom at least one is a citizen of India may be solemnized under this Act by or
before a Marriage Officer in a foreign country.
✓ 4.6.10 Uniform Civil Code: In 2017, a draft of a Uniform Civil Code that
would legalize same-sex marriage was published. Under the proposed code,
marriage is defined as "the legal union as prescribed under this Act of a man with a
woman, a man with another man, a woman with another woman, a transgender with
another transgender or a transgender with a man or a woman".
A partnership is similarly defined as the "living together of a man with a woman, a
man with another man, a woman with another woman, a transgender with another
transgender or a transgender with a man or a woman". It also provides that any two
persons who have been in a partnership for more than two years shall have the same
rights and obligations as married couples. It also mandates the registration of all
marriages. In addition, the draft states that "all married couples and couples in a
partnership are entitled to adopt a child. The sexual orientation of the married couple
or the partners are not to be a bar to their right to adoption. Non-heterosexual
couples will be equally entitled to adopt a child." Finally, the code provides for the
repeal of all of India's marriage-related laws (the Hindu Marriage Act, the Hindu
Succession Act, the Muslim Personal Law (Shariat) Application Act and The Indian
Christian Marriage Act, among others). The draft was submitted to the Law
Commission of India. Whether India should adopt a Uniform Civil Code is a matter
of ongoing political debate. In February 2020, Union Minister Ravi Shankar Prasad
said that "presently there is no proposal to legalize same-sex marriage", adding that
the Union Government was not considering the issue.
 62

✓ 4.7 Law Commission Reports and Sexual Minorities:

The fifth and the fourteenth Law Commissions of India, headed by former judges of
the Supreme Court of India and composed of well-known experts in law, which, on
reference from the Government of India, respectively in the later half (1971)63 and at
the end of the twentieth century (1997)64 undertook a comprehensive review of the IPC,
however, did not delve deep into the complex interplay of morals vis-à-vis legal
intervention against adult consensual homosexual behaviour in private. The fifth Law
Commission merely took note of the stand of the Wolfenden Committee that consensual
homosexuality between adults in private, being a matter of private immorality, be
decriminalized, as it is not the law’s business to enter into the matters of private
immorality. Recalling the inconclusive end of the debate sparked of by the Wolfenden
Committee, the fifth Law Commission believed that disapproval of homosexuality by
the Indian community justifies Sec. 377 IPC, the law against homosexuality, in the
Penal Code. While the fourteenth Law Commission preferred to endorse the proposals
for reform suggested by the fifth Law Commission and to add a few more suggestions
to it without examining immoral contours of the anti-homosexuality law.65 The fifth
Law Commission, which for the first time, undertook a comprehensive review of the
more than a century old IPC, sought ‘informed public opinion’ on (de)criminalization
of homosexuality and the punishment provided therefore, and decriminalization of
consensual sexual act between adults in private for suggesting reforms in provisions of
Sec. 377 of the Penal Code. Commission felt that the punishment provided for
‘unnatural offences’ in Sec. 377 IPC is ‘very harsh’ and ‘unrealistic’. The fourteenth
Law Commission, with a view to suggesting reforms in the Penal Code, undertook a
comprehensive review in 1997 of the IPC. The recommendation of Law Commission
172nd report is exclusively related to the repealing of Sec. 377 of IPC. Some more Law
Commission Reports204 have the relevance if this regard.

63Law Commission of India, Forty-Second report: The Indian Penal Code (Government of India, 1971), available
in K I Vibhute, ‘Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of Law and
Morality’
64 Law Commission of India, One Hundred and Fifty-Sixth Report: The Indian Penal Code (Government of India,

1997), available in K I Vibhute, ‘Consensual Homosexuality and the Indian Penal Code: Some Reflections on
Interplay of Law and Morality’,
65 Vibhute, K I. “CONSENSUAL HOMOSEXUALITY AND THE INDIAN PENAL CODE: SOME REFLECTIONS

ON INTERPLAY OF LAW AND MORALITY.” Journal of the Indian Law Institute, vol. 51, no. 1, 2009, pp. 3–
31. JSTOR, www.jstor.org/stable/4
 63

✓ 4.8 National Crime Record Bureau (NCRB) Data of Sec. 377

IPC:

The not addressing of any issue is also an issue. An agency of Indian government is
available in India to record the data of crime committed and registered under Indian
Penal Code or any other laws. But for a long time there was no recording of data with
respect to Sec. 377 of IPC specifically relating to same-sex sexual act crime under this
section. The data of Sec. 377 IPC was related to the cases of women and child sexual
abuse only. It was because of not having the clear meaning and application of Sec. 377
of IPC. According to Crime in India 2014, “1148 incidences of ‘unnatural offences’
were reported to the police. This is the first time that we have collected data on crimes
registered under this particular section of the IPC. While 383 of them were cases
involving adults, the remaining 765, were cases of child abuse registered under Section
377 IPC. In the cases involving adults, we do not know whether sex was consensual or
non-consensual,” said an NCRB official. According to a report, ‘there have been 587
arrests under Section 377 IPC in India and 778 cases were registered under this Section
till October 2014. It is imperative to note that the Supreme Court, in its judgment, had
said that since 1857, only around 200 persons had been prosecuted under Sec. 377 IPC
and thus the said Section was not being misused’. The data shows that there is no proper
functioning by the government as far as the cases under Sec. 377 of IPC is concerned.
The data shows that there is no proper functioning by the government as far as the cases
under Sec. 377 of IPC is concerned. Between 2014 and 2016, there were 4,690 cases of
persons being booked under Section 377, which the Supreme Court struck down as
unconstitutional. Between 2014 and 2016, there were 4,690 cases of persons being
booked under Section 377, which the Supreme Court struck down.
 64

▪ 4.9 Judicial activism:

✓ Naz Foundation vs. NCT of Delhi, 2009 160 Delhi Law Times 277:

‘On July 2, 2009 the High Court of Delhi decided Naz Foundation v. Government of
NCT of Delhi66 decriminalizing consensual homosexual conduct of adults. The court
affirmed all the major submissions of the petitioner and ruled that Sec. 377 of the Indian
Penal Code, 1860 (IPC) insofar as it prohibits consensual homosexual acts in private is
violative of Article 14 which the right to privacy and dignity, A- 14 which provides
protection against arbitrary laws as well as A-15 of the Constitution which prohibits
discrimination on the basis of sex. The most striking feature of the judgment in Naz
Foundation is that it evolved the right to sexual autonomy as part of the right to life and
personal liberty guaranteed under Article 21’67

‘On 2nd July 2009, New Delhi’s HC ruled that homosexual conduct should not be
deemed a criminal offence, challenging more than a century of criminalization of
homosexuality in India since the British introduced (IPC) in 1860. Sec. 377 IPC violates
Constitutional guarantee of equality under Article 14 of the Constitution, Scope of
criminal law (Sec. 377 IPC) in public and private morality, right to equality and equal
treatment, Sec. 377 IPC targets homosexuals as a class, infringement of Article 15-
Whether ‘Sexual Orientation’ is a ground analogous to ‘Sex’. The two judge bench of
Delhi High Court came to the conclusion that “We declare that Sec. 377 IPC, in so far
it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14
and 15 of the Constitution. The provisions of Sec. 377 IPC will continue to govern non-
consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By
‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would
be presumed not to be able to consent to a sexual act. This clarification will hold till, of
course, Parliament chooses to amend the law. It was the bench of the then Chief Justice
of Delhi High Court Hon’ble Chier Justice Ajit Prakash Shah and Hon’ble Dr. Justice
S. Muralidhar. The one hundred five page judgment was delivered on July 2nd, 2009.

66
Nct Of Delhi And Others (Wp(C) No.7455/2001, Date Of Decision: 2nd July, 2009), Available At
Http://Www.Nazindia.Org/Judgement_377
67 Srivastava, Ajendra. “Gay Sex And The Constitution: Naz Foundation And Lawrence Compared.” Journal of the Indian

Law Institute, Vol. 51, No. 4, 2009, Pp. 513–522.

 65

✓ Suresh Kumar Khausal and another v. Naz Foundation and Others

AIR 2014:

The Counsels appearing for one of the 16 (so far) different Special Leave Petitions
(SLP), in their opposition against the Delhi High Court decision, sought the
Supremes Court's intervention. SC in case of Suresh Kumar Kaushal V. Naz
Foundation has held “high court committed serious error by declaring section 377
IPC as violative of article 14, 15 & 21 of the constitution in so far as it criminalizes
consensual sexual acts of adults in private completely”. Supreme Court also held
that HC was not right in observing that s.377 IPC obstructs personality development
of homosexuals or affects their self-esteem. Both the Judges further held that-
“Homosexual acts are unnatural & against the order of nature. Based upon the
modest medical findings, the human body is simply not designed to engage in
homosexual acts. Every part of body is meant to perform a specific purpose & must
be used for that purpose only; conversely the opposite is absolutely true; the sexual
activity is perfectly designed to be between a man & woman. If homosexuality is
legalized the instances of HIV/AIDS will increase & overall health status of people
in our country will go down”. Lastly, quoting religion, society and culture judges
further held that Decriminalizing consensual sex between persons of the same sex
is against our religious teachings & would give rise to male prostitution. Deviation
from conventional sexual morality leads to hostility in the society.

✓ Navtej Johar Singh v. Union of India, (2018) 1 SCC 791

On 6th September 2018 a five-judge Bench unanimously struck down Section 377 of
the Indian Penal Code, to the extent that it criminalized same-sex relations between
consenting adults. LGBT individuals are now legally allowed to engage in consensual
intercourse. The four judgments unanimously cited fundamental rights violations in
reading down Section 377. They found that Section 377 discriminates against
individuals on the basis of their sexual orientation and/or gender identity, violating A-
14 & 15 of the Constitution. Further, they ruled that Section 377 violates the rights to
life, dignity and autonomy of personal choice under Article 21. Finally, they found that
it inhibits an LGBT individual’s ability to fully realize their identity, by violating the
right to freedom of expression under Article 19(1) (a).
 66

✓ National Legal Service Authority v. Union of India and others AIR 201468

Analysing the NALSA judgment, ‘The Supreme Court, in the National Legal Service
Authority (NALSA) judgment delivered on 15-04-2014 recognized the legal and
constitutional rights of transgender persons, particularly the rights of the hijra
community as a ‘third gender’. In judgment of immense breath and vision, Justices K.S.
Radhakrishnan and A. K. Sikri have brought hope and promise of citizenship to a
community that has largely been outside the legal framework’. 69 Transgender is seen
as an umbrella category that includes those who identify as male to female, female to
male, intersexed, and transsexual persons as well as those who identify as hijras, kothis,
kinnars, aravanis/thirunangis, jogappas/jogta, shivshakthis and eunuchs. Significantly,
the court says the term transgender includes ‘pre-operative, post-operative and non-
operative’ transsexuals who strongly identify with persons of the opposite sex’

‘From the point of view of Constitutional developments, the NALSA judgment is path
breaking. The court relies on Article 14 (right to equality), 15 and 16 (right to non-
discrimination), 19 (right to freedom of speech and expression), 21 (right to live with
dignity and right to autonomy), Article 51 (Directive Principle of State Policy)
(fostering respect for international law and treaty obligation) and the words justice,
social economic and political in the Preamble to the Constitution’. ‘One of the most
innovative parts of the judgment is the Court’s reading of Article 19(1) a, the right to
freedom of speech and expression to include the right to expression of one’s self
identified gender. No person can be told how to dress subject to restrictions in Article
19(2) (which include ‘public order, decency and morality). This is bold move and
identifies the link between gender identity and dress, words, action and behaviour. This
is especially important in the context of discrimination against transgender persons who
challenge binary dressing and behaviour’.70 The Bench said: “Social Justice does not mean
equality before law on paper but translating the spirit of the Constitution, enshrined in the
Preamble, the Fundamental Rights and the Directive Principles of State Policy, into action,
whose arms are long enough to bring within its reach and embrace this right of recognition to
the transgender which legitimately belongs to them”.

68
AIR 2014 SC 1863
69
available at http://kafila.org,
70
Prabha Sridevan, ‘The third gender’s right to dignity’, The Hindu, May 31, 2012.
 67

▪ The Court has directed Centre and State Governments to grant legal
recognition of gender identity whether it be male, female or third-gender:

✓ Legal Recognition for Third Gender: In recognizing the third gender

category, the Court recognized that fundamental rights are available to the
third gender in the same manner as they are to males and females. Further,
non-recognition of third gender in both criminal and civil statutes such as
those relating to marriage, adoption, divorce, etc. is discriminatory to
transgender individuals.

✓ Legal Recognition for Persons transitioning within male/female binary:

As for how the actual procedure of recognition will happen, the Court merely
states that they prefer to follow the psyche of the person and use the
"Psychological Test' as opposed to the 'Biological Test.' They also declare that
insisting on Sex Reassignment Surgery (SRS) as a condition for changing
one's gender is illegal.

✓ Public Health and Sanitation: Centre and State Governments have been
directed to take proper measures to provide medical care to transgenders in
hospitals and provide them separate public toilets and other facilities. Further,
they have been directed to operate separate HIV/Sero-surveillance measures
for transgender people.

✓ Socio-Economic Rights: Centre and State Governments have been asked to

provide the community various social welfare schemes and to treat the
community as socially and economically backward classes. They have also
been asked to extend reservation in educational institutions and for public
appointments.

✓ Stigma and Public Awareness: These are the broadest directions - Centre
and State Governments were asked to take steps to create public awareness to
better help incorporate transgender individuals into society and end treatment
as untouchables; take measures to regain their respect and place in society; and
seriously address the problems such as fear, shame, gender dysphoria, social
pressure, depression, suicidal tendencies and social stigma.
 68

“To not respect the human rights is against the humanity” -Nelson Mandela
▪ Some important case laws:
✓ DP Minwalla vs Emperor AIR 1935: convicted for performing consensual
homosexual act.
✓ Grace Jeyaramani vs EP Peter, AIR 1982: wife filed divorce on the principal
ground that her husband forced her to have “sexual intercourse in an unnatural way”
against her wish. First time ‘consent’ became relevant regarding sodomy. Judgment
criticized as “wife’s lack of consent serves to release her from a marriage but an
adult male’s consent lands him in prison”
✓ Fazal Rab Choudhary vs State of Bihar AIR 1983 SC 823: Convicted u/s S.377
✓ Anil Kumar Sheel vs The Principal, Madan Mohan Malvia Engg. College AIR
1991: convicted for homosexual act and ‘morality’ was discussed.
✓ Mihir vs State of Orissa 1992 Cr LJ 1352: It was held that ‘consent is immaterial’
✓ Pooran Ram vs State of Rajasthan 2001 Cri LJ 91 : homosexual was equated with
a rapist (Even when consensual)
✓ Kusum Ingots v. Union of India 2004 6 SCC 254: Court held that “An order passed
on writ petition questioning the constitutionality of a Parliamentary Act whether
interim or final keeping in view the provisions contained in Clause (2) of Article
226 of the Constitution of India, will have effect throughout the territory of India
subject of course to the applicability of the Act.”
✓ R. Coelho V. State of Tamil Nadu AIR 2007 SC 861: Right to choose one’s own
identity is one of the most essential right under this article to life with dignity.
✓ Jayalakshmi v. State of Tamil Nadu (2007) 4 MLJ 849: A transgender woman was
arrested by the police on charges of theft. She was sexually abused in the police
station which ultimately led her to immolate himself in the premises of the police
station. Court ruled that this was a case of custodial violence and there is no doubt
that the physical and sexual abuse of Pandian at the hands of the police officers was
responsible for her suicide.
✓ Padmanabhan v. Joint Commissioner of Labour 2008: act of ‘moral turpitude’
discussed.
✓ S. Khushboo v. Kanniammal AIR 2010: live-in relationship comes within the
ambit of the right to life under Article 21 of the Constitution of India.
 69

✓ K.S.Puttuswamy vs. Union of India (2017) 10 SCC 1: Supreme Court recognized

privacy as a fundamental right guaranteed by the Constitution
✓ Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397: It was held that
choice of woman in choosing her partner in life is a legitimate constitutional right.
✓ Shakti Vahini v. Union of India AIR (2018): an adult has the fundamental right to
marry a person of their choice. Court ruled that the consent of the family or the
community or the clan is not necessary once the two adult individuals agree to enter
into a wedlock.
✓ Sultana Mirza & Anr. v. State Of Uttar Pradesh & Ors. 202071: Supreme Court
ruled the sexual orientation is an intrinsic element of liberty, dignity, privacy,
individual autonomy and equality, and the intimacy between consenting adults of
the same sex is beyond the legitimate interests of the state.
✓ S Sushma v. Commissioner of Police AIR 2021: Conversion therapy is strictly
prohibited.
✓ Poonam Rani & Anr. v. State Of Uttar Pradesh & Ors. AIR 202172: The Court
noted that the Constitutional Court has a duty to monitor and observe the
Constitutional morality as well as the rights of the citizens which are under threat
only on account of the sexual orientation. The Court directed the appropriate Police
Personnel to provide necessary protection and ensure that no harassment is caused
to them.
▪ Pending petitions regarding same-sex marriage:
✓ Abhijit Iyer Mitra & Ors v. Union of India (2020-Delhi HC) Under HMA 1955
✓ Dr Kavita Arora & Anr v. Union of India (Oct. 2020- Delhi HC) Under SMA 1954
✓ Vaibhav Jain & Anr v. Union of India (2020-Delhi HC) Under FMA 1969
✓ Joydeep Sengupta v. Union of India & Ors (2020-Delhi HC)OCI Under FMA 1969
✓ Udit Sood and Ors. v. Union of India and Anr: three men and one woman from
the LGBT community asked the court to declare that the SMA applies to any two
persons who wish to marry regardless of sex.

On 6 July 2021, the division bench of Chief Justice Dhirubhai Naranbhai Patel and
Justice Jyoti Singh listed the petitions for hearing on 27 August.

71
WRIT - C No. - 17394 of 2020
72
WRIT - C No. - 1213 of 2021
 70

✓ 4.10 Rules of Interpretation and Sexual Minorities

When any ambiguity, inconsistency or repugnancy arises for understanding the proper
meaning of a term or express word in law then it is obvious in such case that the rules
of interpretation is applied. The understanding of ‘carnal intercourse against the order
of nature’, privacy, liberty and freedom, life, unnatural, etc. are interpreted by Indian
judiciary with interpretation rules specifically relating to Sec. 377 IPC definition. The
literal rule (grammatical rule), mischief rule, golden rule, harmonious constructions are
major rules of interpretation. Paper titled ‘Judicial Actions in Violation of Fundamental
Rights: A Case Study to Naresh Shridhar Mirajkar v. State of Maharashtra’73
discusses about the violation of fundamental rights by judicial actions. In finding the
conclusion the research question for the study comes as ‘whether the judicial actions in
violation of fundamental rights is subject to judicial scrutiny just as the legislature and
the executive’. The study concludes that ‘the approach adopted by the Hon’ble Supreme
Court of India was erroneous. Instead of relying upon the Universalist method of
comparative Constitutional interpretation, it had been better to adopt the Genealogical
approach and compare with the U.S. Constitution because India owes its great heritage
to America for the concept of fundamental rights included in part III of the Indian
Constitution. Therefore, for the reasons mentioned hereinabove, in case of any
ambiguity or on a question related to interpretation of part III a reference and
comparison to the U.S. Constitution and rulings of the Supreme Court of U.S. was
mandated. ‘The Municipal Courts of India must take note of these existing norms of
international human rights. This has been affirmed by the Supreme Court of India which
has also held that there is need to evolve and adopt “principles of interpretation which
will further and not hinder the goals set out in the Directive Principles of State Policy.”74
Beyond protection of individual rights, the courts also have a mandate to evolve the
science of jurisprudence as it was brought to our notice by Some Chief Justices that
‘The interpretation of law is not merely for the determination of a particular case but
also in the interest of law as a science. As such, interpretation of law must be in
accordance with justice, equality and good conscience, and more so, in furtherance of
justice.

73
. Naresh Shridhar Mirajkar, ‘Judicial Actions in Violation of Fundamental Rights: A Case Study to
Naresh Shridhar Mirajkar vs State of Maharashtra’, AIR 1967 SC
74
UPSE Board v. Hari Shankar, AIR 1979 SC
 71

▪ Chapter V: Battle Of LGBTQ Community Against

Indian Society

“Injustice anywhere is a threat to justice everywhere; whatever affects one directly,

affects all indirectly”-Martin Luther King, Jr.

▪ 5.1 Indian society and homosexuality:

In India, so far no such progressive changes have taken place as regards social and legal
recognition and homosexuals remain victims of violence in different forms supported
by the state and society. In India from a scattered group of a few hundred, LGBTQ
members are at present 2.5 million strong and growing community evolving its own
hip and happenings. They are weaving there way from metros into semi urban societies
both online as well as offline.75 This number is gradually increasing with more and
more such people coming out of the closet. While Delhi and Mumbai (with five lakh
gays each) and, to a lesser extent, Bangalore and Calcutta are the hub of the Indian gay
movement, people from smaller towns in Gujarat, Maharashtra and Bihar are also
coming out76. These Indian gays are talking live in chat rooms, looking for soul mates,
falling in love, having sex on the net and crossing cities to be with each other in real
world.77 This shows that homosexual relationships are not unheard of in India, but they
generally exist in the country's larger cities where people can be more open about their
sexuality.78 A number of cities and larger towns, such as Karnataka, Delhi, Mumbai,
Calcutta, Bangalore, Hyderabad, Pune, Chennai, Patna, Lucknow, Akola and Gulbarga
had a number of resources for gays, lesbians and transgender communities that include
- help-lines, publications/newsletters, health resources, social spaces and drop-in
centers.79 In recent past the homosexual community of Calcutta, Mumbai and
Bangalore also hosted the gay pride march. All the above instances show that the
homosexual community in India is visible and is gradually becoming vocal in their
demand.

75
www.haworthpress.com/store/E-Text/View_EText.asp?a=3&fn=J236v07n01_09&i=1%
76
According to Shaleen Rakesh, Coordinator, Milan project, Naz Foundation, New Delhi
77
http://www.ilga.info/index.html
78
BBC news article dated 29 May 2001
79
www.tribuneindia.com/2004/20040319/world.htm
 72

▪ 5.2 Legal discrimination against sexual minorities in India:

Legal discrimination against sexuality minorities operates through the criminal and
civil law systems. Law and society goes hand in hand. Law is not autonomous, standing
outside of the social world, but is deeply embedded within society. Law both reflects
and impacts culture, and how inequalities are reinforced through differential access to,
and competence with, legal procedures and institutions. Justice shouldn’t wait for
acceptance of society at large. The homophobic society is indirectly restricting courts
and legislatives from taking major steps for LGBTQ+ but on other hand, laws and
recognition by courts will make it easier for society to accept the sexual minority as
fellow human beings. The regime of discrimination can be analyzed under the following
heads.

5.2.1 Prevention of unnatural offences under IPC:

Legal Discrimination against the sexuality minorities takes many forms, the most
notorious being Section 377 of the Indian Penal Code (IPC), a British colonial
legislation criminalizing homosexual behavior, that continues to be in the Indian statute
book although it has long since been removed from the British statute book.
5.2.2 Scope Of Section 377 Of IPC Is Ambiguous:
Under section 377 of IPC scope of unnatural offences is ambiguous because there is no
clear distinction between consenting and coercive sex, against the order of nature etc.
5.2.3 Discrimination on the ground of sex:
The fundamental right under the Constitution of India prohibits discrimination on the
ground of sex. Therefore, it is violation of fundamental rights of LGBT Minority
people as under- Lack of educational facilities, Right to life and personal liberty,
Right to live with family, Right to livelihood, Right to speech and expression, Right
to profession and business, Equal pay for equal work, Freedom of Religion, Right to
live with human dignity, Right to equality and so on.

5.2.4 Injustice on LGBTQ minority:

Human rights and fundamental rights are available to all persons but state is failed to
create special legislation which protects rights of LGBT minority community and to
provide real justice to them. They are also human being and such treatment should be
provided by the state to these people. In many instances LGBT individuals are not
legally protected from abusive and discriminatory actions.
 73

▪ 5.3 Some major issues faced by LGBTQ minorities in India:

LGBTQ+ people face tremendous difficulties growing up in a society where
heterosexuality is often presented as the only acceptable orientation and homosexuality
is regarded as deviant. They continue to face discrimination and exclusion across the
world in all spheres of life. Homophobic violence and abuse targeting LGBTQ people
occur on a regular basis. . In most countries, same-sex couples do not enjoy the same
rights and protections as opposite sex couples, and consequently suffer from
discrimination and disadvantage in access to social protection schemes, such as health
care and pensions. In the labour market, a majority of LGBTQ people continue to hide
their sexual orientation or to endure harassment out of fear of losing their job.
Particularly vulnerable are young LGBT people who experience estrangement from
family and friendship networks, harassment at school and invisibility, which can lead
in some cases to underachievement at school, school drop-out, mental ill-health and
homelessness. This discrimination not only denies LGBTQ people equal access to key
social goods, such as employment, health care, education and housing, but it also
marginalizes them in society and makes them one of the vulnerable groups who are at
risk of becoming socially excluded. Here I am highlighting some major problems faced
by LGBTQ people across the world.

▪ 5.3.1 Homophobia:

LGBTQ+ people are more likely to experience intolerance, discrimination, harassment,

and the threat of violence due to their sexual orientation, than those that identify
themselves as heterosexual. This is due to homophobia. Some of the factors that may
reinforce homophobia on a larger scale are moral, religious, and political beliefs of a
dominant group. Living in a homophobic environment forces many LGBT people to
conceal their sexuality, for fear of the negative reactions and consequences of coming
out. There is no single definition for the term ‘homophobia’, as it covers a wide range
of different viewpoints and attitudes. Homophobia is generally defined as hostility
towards or fear of gay people, but can also refer to stigma arising from social ideologies
about homosexuality. Negative feelings or attitudes towards non-heterosexual
behaviour, identity, relationships and community, can lead to homophobic behavior and
this is the root of the discrimination experienced by many LGBTQ members.
Homophobia manifests itself in different forms, for example homophobic jokes,
 74

physical attacks, discrimination in the workplace and negative media representation.

For people who have been brought up to believe that homosexuality is wrong, the
realization that they might be gay can cause feelings of shame and self-loathing, leading
to low self-esteem. Suppressing homosexuality involves denying an important part of
a person's identity, and can have a serious impact upon their life and relationships.
Furthermore, the dilemma of whether to come out or not can cause a great deal of
personal distress. LGBT people who make the decision to declare their sexual
orientation can face prejudice and discrimination from their family, friends, and also
from wider society. Homophobia can cause extreme harm and disruption to people's
lives. For example, many LGBT people have become homeless as a result of being
rejected by their families after revealing their sexual orientation. Homophobic
individuals play an effective role in inferring with the lives of LGBT individuals. They
cannot suppress their feelings of hatred and the fact that they cannot accept LGBT
individuals. Thus, they harass LGBT individuals verbally or physically and expose
them to violence. Such attitudes direct LGBT individuals to stress, dissatisfaction of
the place they live in, exposure to physical disturbance, loneliness etc.

5.3.2 Verbal abuse by homophobic slurs:

From very young age, humans are made to differentiate between male and female
genders. Everything that seems in between is just plain wrong for many. Homosexuals
are being called ‘chhakka’ so frequently that at one point it becomes their nickname at
places like school. People go on to great lengths to invent new swear words like 0.6,
sine30, half-half etc. There is the incessant verbal assault that they have to deal on daily
basis. More often than not, the terms ‘gay’ and ‘faggot’ are used loosely with a blatantly
negative connotation and it is just not cool. Being a gay is not expletive.

▪ 5.3.3 Bullying/Physical violence:

There are so many people who would pin point and act the way they walk, mimic their
voice, try to pull their pants down, grope them etc. LGBTQ students face harassment
in schools. Being a teenager is tough enough without fearing harassment in a place
where you‘re supposed to feel safe. Some get even physically beaten and injured just
because of their sexual orientation or gender identity being different.
 75

▪ 5.3.4 Getting disowned by family:

Having a supportive family that accepts even a LGBTQ+ person is quite rare. Most of
the times family just kicks out the person and disowns them. Homophobic parents might
consider their LGBTQ+ kids as disgrace. The ones thrown out of their homes for being
queer, or ran away to escape an abusive situation ultimately become homeless as most
shelter owners do not accept gay men or transgender people or same-sex couples as
paying guests.

▪ 5.3.5 Denied to get jobs and education:

Most of LGBTQ’s or effeminate guys are denied from the jobs opportunities especially
in the private sector because homophobic people might not be ready to be around and
work with a person of sexual minority.

▪ 5.3.6 Family issues:

Lack of communication and misunderstanding between parents and their LGBT
children increases family conflict. These problems with communication and lack of
understanding about sexual orientation and gender identity can lead to fighting and
family disruption that can result in an LGBT adolescent being removed from or forced
out of the home. Many LGBTQ youth are placed in foster care or end up in juvenile
detention or on the streets, because of family conflict related to their LGBT identity.80

▪ 5.3.7 Discrimination at work place:

Discrimination of LGBTQ persons in the workplace is a significant factor in the

differences in socioeconomic status for LGBTQ persons. Gay and transgender
individuals suffer from socioeconomic inequalities in large part due to pervasive
discrimination in the workplace. Discrimination directly causes job instability resulting
in greater unemployment and poverty rates for people of sexual minority.

80
Wilbur, S., Ryan, C., & Marksamer, J. (2006). Best practices guidelines: Serving LGBT youth in out-
of-home care
 76

▪ 5.3.8 Victims of crime:

These LGBT minority people become victims of violence and crime. However, LGBT
individual’s experiences of violence and discrimination differ depending on a number
of factors including race, gender, income, immigration, status and language barriers.
LGBT immigrants are more likely to face violence based on race and ethnicity and/or
sexual identity and/or gender identity.

▪ 5.3.9 Psychological Distress:

LGBT people face considerable levels of stigmatization, discrimination and
harassment in their daily lives. Most of them learn to cope with the help of supportive
family and friends but if they lack support then the discrimination often leads to
psychological distress and suicidal thoughts. They are more likely to experience
depression and anxiety than are their heterosexual counterparts. These emotions might
include intense sadness, anxiety, loneliness, discomfort in social situations, and feeling
overwhelmed. Most likely due to violence, social rejection, and isolation, the LGBT
community experiences higher rates of anxiety, mood and substance use disorders, and
suicidal thoughts. Suicide is the leading cause of death among LGBTQ youth.81

▪ 5.3.10 Drug Addiction:

LGBT people are more likely to use alcohol, tobacco and other drugs than the general
population. Reliance on bars for socialization, stress caused by discrimination, and
targeted advertising by tobacco and alcohol businesses in gay and lesbian publications
are all believed to contribute to increased pressures on LGBT individuals to engage in
substance abuse.

▪ 5.3.11 Blackmail and extortion:

Black mail and extortion are prevailing widely among queer man in India. Sexual
blackmail can be defined as an act of blackmailing someone by threatening to disclose
some ‘discreditable’ information about their sexual orientation, gender identity or
sexual behavior. Laws against sodomy’ invented the crime of sexual blackmail.82

81
Patterson, Charlotte J... Lesbian, Gay, and Bisexual Identities over the Lifespan: Psychological Perspectives.
Ukraine, Oxford University Press, 1995.
82 McLaren, Professor of History Angus, and McLaren, Angus. Sexual Blackmail: A Modern History. Cambridge,

Harvard University Press, 2002.

 77

▪ 5.3.12 Harassment & torture by police and public authorities:

Various incidents are reported on how violence is carried out against LGBT people by
the state officials83. The violence of the police lay in the ridicule, the refusal to take the
complaint seriously, and the inaction in the face of aggressive theft and physical
violence. The police in India have been blamed to harass homosexuals, especially in
cruising areas like parks. It is only in recent years that the police have begun to actually
use this law as a threat and as a means to demand sexual favours and money.

▪ 5.3.13 Problems faced by lesbians:

In India, with regard to woman, the awareness of one’s body or of sexual pleasure and
even pain is often not allowed. Women are not attributed any knowledge of or freedom
to explore even their own bodies. Homosexuality in women is often seen as challenge
to patriarchal society. Lesbians shake the very basic of heteronormativity, which is the
need for a man in an intimate, interdependent or sometimes just compulsorily dependent
relationship. The structure of family is challenged significantly, as these women engage
in sexual activity which does not and cannot result in procreation. Lesbians engage in
activities that give them sexual pleasure, ‘sexual pleasure’ a luxury not allowed to
Indian woman.

▪ 5.3.14 Marrying the person they love and having a family with
them is still a dream:
Even if homosexuality is decriminalized that doesn’t solve the major problem of
not being able to marry the person they love and wish to spend their life with.
Legally unrecognized relationship further deters them from having rights and
privileges that heterosexual couples enjoy in the form of domestic partners rights
like insurance, family pension, joint bank accounts or loans, medical benefits etc.84
such couples are not even allowed to adopt a child a start a family. In fact the right
to marry is denied on the grounds that such relation is non procreative. Homophobic
society sees homosexuals as just some creeps acting on their sexual drive of lust but
tend to forget that it’s not just about physical pleasure for some time. It is about
promise of togetherness for lifetime with the person they love.

83
People’s Union for Civil Liberties (PUCL) Karnataka,2006
84
https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/
 78

▪ 5.3.15 Problems of Terminology:

Problems in language occur when terminology is unclear or when terminology has been
associated with negative stereotypes. Problems occur in language concerning lesbians,
gay men, and bisexual persons when the language is too vague or the concepts are
poorly defined. The problem usually occurs when one has to address a gender queer
person. It is extremely necessary that we use the pronouns person prefers. Using wrong
pronoun is often interpreted as disrespectful and transphobic. It makes them feel
invalidated or even abusive. In literature, sexual orientation word must be used instead
of sexual preference. Sexual preference is often seen by homophobes as a mental illness
that can and needs to be cured.

▪ 5.3.16 Impact Of Covid-19 On LGBTQ+ Community:

As we already know that the condition of LGBT community is vulnerable during
normal times, we cannot even imagine what they are going through these tough times
during the global pandemic COVID-19. Apart from the absence of healthcare,
employment, housing and other such domains, Bias and limited anti-discrimination
protection laws have amplified the situation making it worst. They experience
discrimination by healthcare providers, caregivers and every other layman in the society
which eventually put them at great risk.85 A Transgender person specifically those
belonging to the Hijra/ Kinnar communities have no access to daily income as their
traditional livelihoods are affected due to stringent lockdown and social distancing. In
case of transgender, due to a lack of proper identification documents like Aadhar card,
Ration card and PAN card etc., these people are not able to get access to social security
schemes and government relief care packages because of the requirement of a
government identification document or linking Aadhar, the biometric ID, to bank
accounts as a prerequisite to receiving financial aid. The Delhi High Court refused to
entertain a PIL seeking directions to take steps to protect and provide welfare measures
such as food, accommodation and medicines, to sex workers and the LGBT community
member in Delhi to ensure their survival during the lockdown.86

85
Vinay Arote, IDAHOTB 2020: Coronavirus Lockdown brings in a wave of Hostility, May 17, 2020,
https://mumbaimirror.indiatimes.com/others/health-lifestyle/idahotb-2020-coronavirus-lockdown-
brings-in-awave-of-hostility-for-the-lgbtqia-community
86
The Indian Express, May 11, 2020,
https://www.newindianexpress.com/cities/delhi/2020/may/11/delhi-hc declinesto-entertain-pil-on-
protection-of-sex-workers-lgbt-members-during-lockdown 2141984.html.
 79

▪ 5.4 Reasons for problems:

▪ 5.4.1 No end to the ugly labeling, homophobia & discrimination

Labeling often takes a very subtle form and may extend to micro-aggression. Negative
labelling and stigmatization, students of the LGBTQ+ community would invariably
find it difficult to come out. The labelling theory suggests that society views members
of the LGBTQ+ community as sick and sinful and disgusting.87 As major Indian
religions are against homophobia (or at least the society interpreted it that way),
LGBTQ+ members aren’t allowed to worship at holy places. They are either completely
banned from entering or given stares and taunts. Discrimination at educational
institutions and work places is more than common.

▪ 5.4.2 Being Homosexual Is Considered As Mental Illness

Even in the age of information, the lack of awareness that exists is daunting. And not
just amongst the older generation that refuses to come to terms of reality of alternate
sexualities, but even amongst the millennia’s. It’s awfully disheartening to come across
young, seemingly educated individuals doling out misinformed opinions.

▪ 5.4.3 Coming Out Is An Ordeal

Coming out to love ones with their sexuality is one of the most tumultuous, gut
wrenching experiences that anyone could go through in their lives. Other than frequent
loose judgments passed, there are also risks of being ostracized and assaulted for being
just who they are. And honestly why is even the need of coming out. There is a constant
fear of ‘what if the world doesn’t like?’ and honestly it doesn’t seem fair that only gay
(LGBTQ+) people have to come out, Everyone should have to declare one way or
another, and it shouldn't be this big awkward thing whether you're straight, gay, bi or
whatever. Why is straight the default!?88

87
Weinberg, Ruinton & Hammersmith, The Solutions of Social Problems: Five Perspective 2006:
88
Albertalli, Becky. Simon vs. the Homo sapiens Agenda. United Kingdom, Penguin Random House
Children's UK, 2015.
 80

▪ 5.4.4 Sexual assault on LGBTQ is a reality

Victims of same-sex sexual assault are invisible to professionals used to handling male-
on-female rape, and are shunned by a community that will accuse victims of destroying
their glorious vision with the idea of inconvenient victimhood. A lot of people still have
trouble believing that it’s even possible for a woman to rape someone. Clarifying the
reality invites comparisons to an evil, predatory lesbian, but ignoring it is doing nothing
to battle the epidemic of gay people being assaulted. Such crimes are gender neutral
and victim/perpetrator can be of any gender. Assuming former to only be female and
latter a male is the most homophobic act by society and Indian laws.

▪ 5.4.5 Constant exposure to uncomfortable questions

While one is more than welcome to ask questions and clarify doubts they might have
in their understanding of alternate sexualities, especially if they are willing to genuinely
learn and be accepting, wanting to delve into the details of one’s private sexual life is a
point to blank rude.

▪ 5.4.6 Health problems get ignored

Growing up heterosexual, the distinct dangers associated with sex are restricted to
accidental pregnancy and sexually transmitted diseases. But homosexuality leads to a
whole host of different health problems that don’t get talked about. There are a plethora
of STD’s at large, and because of lack of information available, people end up ignoring
health issues that they might potentially be threatened by.

▪ 5.4.7 No proper sex education

While the idea of sex is still a huge taboo in our society, sex education has a critical
role to play in our process of growing up. It is considered a taboo to talk about sex in
India, which results in nil sex education and nil awareness for other sexualities, which
makes us wonder how one even talks about sexuality does when we're not even
supposed to talk about sex & do the people even know that sexualities and gender other
than hetero exist? Most of the sex educational workshops or lectures speak as if the
only sexuality is being straight and only genders to exist are binary of male/female.
 81

▪ 5.5 Conversion therapy and torture

Conversion therapy is a risky and discredited practice that falsely claims to change a
person’s gender identity or sexual orientation or expression. Due to discrimination and
bias behaviour against LGBTQ people, people continue to put their children at
conversion therapy, despite its rejection by mental health organization. Recently,
LGBTQ activist, Anjana Harish of 21 from Kerala's Kannur district committed suicide
on 12th of May in North Goa, under the enigmatic circumstance. She was forced into
conversion therapy by her parents.89 Conversion therapy enhances the stigma on
homosexuality and it is also against the principle of justice. Even after decriminalization
of homosexuality, instances like these are continuing, highlighting that just the
decriminalization of homosexuality is not sufficient, there is a need for criminalizing
conversion therapy and other such practices. Conversion therapy – also known as sexual
orientation change effort, reorientation therapy, ex-gay therapy, and gay cure –
proclaims to change, ‘repair’ or ‘cure’ an individual’s sexual orientation or gender
identity. Most major medical and mental health associations have condemned it due to
evidence that it’s harmful and its lack of scientific basis. There is an International
Rehabilitation Council for Torture Victims (IRCT), organization providing
rehabilitation to victims, preventing torture, increasing access to justice and fighting
impunity to achieve “A World without Torture.” It is a network of 158 torture
rehabilitation centers across 75 countries, membership supports more than 60,000
torture victims each year to rebuild their lives. They provide medical, psychological,
socio-economic and legal rehabilitation to victims and persistently improve our
techniques and share our knowledge on the best methods to support victims. And the
worst part is that India is not a member of this organization although there are plenty
of conversion therapy/torture cases in India.90 In fact, ironically, parents who are
supposed to be guardians and protectors from any harm are actually the ones taking
their children to such torturous treatments.91 Even today, the illegal method of
‘conversion therapy’ is used against LGBTQ+ people in India.92

89
https://theconversation.com/lgbtq-conversion-therapy-in-india-how-it-began-and-why-it-persists-
today
90
https://www.thehindu.com/news/national/kerala/inhuman-straightening-tales-abound-in-a-state-with-
transgender-policy/article28159861.ece
91
https://timesofindia.indiatimes.com/life-style/relationships/parenting/parents-use-corrective-rape-to-
straighten-gays/articleshow/47489949.cms?from=mdr
92
https://www.livemint.com/mint-lounge/features/the-pain-and-cruelty-of-conversion-therapy-
11591975439448.html
 82

• Therapy/corrective practices include:93

✓ Talk therapy or psychotherapy, including group therapy (e.g., exploring life

events to identify the cause and later use drugs to alter the memories)
✓ Medication (including anti-psychotics, anti-depressants, anti-anxiety,
psychoactive drugs, and hormone injections)
✓ Eye Movement Desensitization and Reprocessing (where an individual focuses
on a traumatic memory while simultaneously experiencing bilateral
stimulation)
✓ Electroshock or electroconvulsive therapy (ECT) (where electrodes are
attached to the head and electric current is passed between them to induce
seizure)
✓ Aversive treatments (including electric shock to the hands and/or genitals or
nausea-inducing medication administered with presentation of homoerotic
stimuli)
✓ Exorcism (e.g., beating the individual with a broomstick while reading holy
verses or burning the individual’s head, back, and palms)
✓ Force-feeding or food deprivation
✓ Forcing an individual to be nude or undressed usually in the presence of others
✓ Behavioral conditioning (e.g., being forced to dress or walk in a particular way)
✓ Isolation (sometimes for long periods of time, which may include solitary
confinement or being kept from interacting with the outside world)
✓ Verbal abuse and humiliation
✓ Hypnosis
✓ Hospital confinement
✓ Beatings and other ‘corrective’ violence
✓ Lobotomy (nerve pathways in lobe of brain are severed from other areas)
✓ ‘Corrective’ rape by a person of opposite gender to turn the person
heterosexual or to enforce conformity with gender stereotypes)

93
https://irct.org/media-and-resources/latest-news/article/1027
 83

▪ 5.6 Gender and Homosexual stereotype

A stereotype is a generalized view or preconception about attributes or characteristics,

or the roles that are or ought to be possessed by, or performed. Sometimes the
stereotypes are attached with sexual orientation and other times with gender. The
representation of homosexuality in Bollywood almost underlines an inherent
homophobia, and is at best a dandyish caricature attempting bad comedy, at
worst, an offending innuendo; very rarely a woman, and no matter from which
part of the world he is in the film, has a strange ‘gay’ accent. Some of the most
common homosexual stereotypes are wearing kajal or make-up, never go plain
when it comes to outfit, like floral shirts and neon pants are must, constantly
hanging hand from the wrist, biting lips and making advances on every good
looking guy. The portrayal of homosexuality in a satirical and comedic way, and
instead of showing a more sensitive, and empathic representation of the struggles that
the community has to face is the harsh reality. Almost all the homosexual characters
ever to appear are for adding a comic touch. In Hollywood it is shown that gay men
love playing and watching sports like basketball and football and as having no interest
in playing sports themselves because they want to dance, sing, or participate in theater
arts. They are often portrayed as being too emotional all the time. These stereotypes are
the main reason of forming bad impression on the minds of the society which further
results in their homophobic attitude.
A gender stereotype is harmful when it limits women’s and men’s capacity to develop
their personal abilities, pursue their professional careers and/or make choices about
their lives. Whether overtly hostile (such as “women are irrational”) or seemingly
benign (“women are nurturing”), harmful stereotypes perpetuate inequalities. For
example, the traditional view of women as care givers means that child care
responsibilities often fall exclusively on women. Men are expected to be the bread
earners and not home-makers. But where do the people with gender non-binary stand
among this!
 84

5.7 Gender neutrality as a solution to problems faced by the

community
Gender neutrality is one in all the foremost mentioned and misunderstood topic that we
have a tendency to confront currently a days. It’s been a hot topic within the news,
inflicting an outsized quantity of disputation and criticism. Gender neutrality suggests
that treating all genders as equal with none discrimination. It conjointly means policies,
language, associated alternative social establishments ought to avoid characteristic
roles per an individual’s gender, to stop discrimination arising from that there are social
roles that one gender is additional suited than another. Generally, once we verbalize
genders, male and feminine are the genders that come back to our mind. However in
the current state of affairs, we've to incorporate the LGBTQ minorities too when we
verbalize gender neutrality. When we talk of gender neutrality, we have a tendency to
concentrate on girls and ladies first. Females represent the half of the world’s
population and so the half its potential. Most of the law books in India on gender justice
focuses exclusively about female gender and their pitiful condition.94 The authors
speaking about gender justice while completely ignoring non-binary genders are
epitome of hypocrites. How do you expect gender justice in society when you don’t
even acknowledge the basic fact that genders aren’t just limited to male and female?
Gender neutrality, besides being a basic right, is important to realize peaceful societies,
with full human potential and property development. This movement is already
expanding and also the same is seen with the introduction of gender-neutral languages
or gender comprehensive languages. This type of language is to avoid bias towards a
specific sex or gender. Being comprehensive from a gender language perspective
suggests that speaking and writing in a very approach that doesn’t discriminate against
a specific sex, social gender or individuality and doesn’t preserve gender stereotypes.
In English, pronouns like he and she or he or him or his are to be avoided to create a
language gender neutral. As an example, For example, the policeman and stewardess
are gender-specific job titles; the corresponding gender-neutral terms are police officer
and flight attendant. The Tata Institute of Social Sciences, Bombay has introduced
India’s 1st gender-neutral hostel area.95 Available for transgender, non-binary, and
gender non-conforming students.

94
Dr.G.B Tripathi, Law and social transformation. Central Law Publications; First Edition (1 January
2012)
95
https://indianexpress.com/article/education/in-a-first-tiss-introduces-gender-neutral-hostel-
 85

▪ 5.8 Activists’ movements

Gay rights activists have been battling against Section 377 for a decade. In 1994, lesbian
and gay groups filed a petition challenging the law in the Delhi High Court. The case
has dragged on for five years and has evoked strong reactions96. In 1996 even members
of the Indian lesbian collective Stree Sangam made a presentation on domestic-
partnership laws to a government conference on marriage and family law. It was
"perhaps the first time that a lesbian/gay group [attempted] to create public opinion on
the issues in such a forum," the group said in a letter to the gay magazine Trikone. 97"
In Feb 99 there was second national LGBTQ conference Indian National Gay
Conference YAARIAN -99. Similarly other gay and lesbian groups like Hamsafar of
Mumbai, Sahayathrika of kerela, etc. are also raising gay issues in the mainstream.
Social media has proved to be a boon for such activists. There are plenty of accounts
made solely with the aim of creating awareness and providing the people of sexual
minority with an opportunity to be themselves without any judgement. The most
successful though has been Naz Foundation which ultimately reached the goal of
decriminalizing consenting homosexuality.

▪ 5.9 Pride parades…….Out of the closet, on to the street

Gay pride was not born out of need to celebrate being gay, but our right to exist without
persecution. So instead of wondering why there isn’t a straight pride, be thankful you
don’t need one – LBGTQ+ Community

Pride parades are an outdoor event celebrating lesbian, gay, bisexual, transgender, non-
binary and queer (LGBTQ) social and self-acceptance, achievements, legal rights, and
pride. The events also at times serve as demonstrations for legal rights such as same-
sex marriage. Most pride events occur annually or in June to commemorate the 1969
Stonewall riots in New York City, a pivotal moment in modern movements. Hence June
is called Pride month. In 1999, Kolkata held India’s first ever Gay Pride Parade. The
parade, with only 15 attendees, was called Calcutta Rainbow Pride and sent an overdue
message to the whole country i.e. being queer and being proud.

96
Urvashi Vaid ‘Building bridges: thoughts on Identity and South Asian G/L/B/T Organizing’
https://news.ucsc.edu/2002/04/103.htm
97
www.trikone.org
 86

▪ 5.10 Arguments in favour of LGBTQ

This is true that the conflict between homosexuals and heterosexuals can be witnessed
in the institution of marriage not only in India but across the world where sodomy law
is applicable. This conflict is arising on account of the reason given in support as well
as against the two different types of marriages which involves very delicate issues for
social and legal recognition of sexual minority that is whether the social and legal
recognition should be given or not and the same has been tabulated below:

Homosexual Marriages Should Not Be Homosexual Marriages Should Be

Legalized Legalized
1. The institution of marriage is 1. There is no moral ground on which to
traditionally the union between man and support the tradition of marriage as a
women. heterosexual institution. For e.g. slavery
once existed but now abolished on
humanitarian ground.
2. Institution of marriage involves 2. If it was so than there would have been
procreation and rearing of children. attempt to prohibit unions between a
sterile women and a fertile man or vice
versa. Nor does legislation exist which
requires a married couple to have
children. It is true that homosexuals
cannot procreate within their union but
there are many options available which
enable them to have children, including
adoption and artificial insemination,
surrogacy etc.
3. The traditional nuclear family 3. The traditional view of family as
comprises of eight primary relations consisting of a mother, father and
(Husband, wife, Father, Mother, Son, children is no longer representative of
daughter, Brother, Son) today’s society
4. The absence of sexual 4. Scientific studies and psychologists
complementarity in these union creates are of the opinion that the love and
 87

obstacles in the normal development of commitment of the parents make

children who are placed in the care of difference not the gender. The children
such parents. They would be deprived of raised by homosexual partners are just as
the experience of either fatherhood or good as those of straight couples.
motherhood. Also this is gravely
immoral and in open contradiction to the
principle, recognised by the United
Nation Convention on the rights of
children, that the best interest of the
children as the weaker and more
vulnerable party are to be of paramount
consideration in every case.
5. Marriage is a sacred institution. The 5. Religion is not an obstacle. Instances
homosexual inclination is however of homosexuality are available in all
‘objectively disordered ‘and homosexual major religious mythology.
partners are ‘sins gravely contrary to
chastity’.
6. Same sex marriages is an untried 6. Homosexual marriages is not an
experiment. untried experiment. In Denmark since
1989 homosexuality is legally permitted.
The result of the experiment suggests that
homosexual marriages has actually been
civilizing and strengthening, not just the
institution of marriage but the society as
a whole. So perhaps we should accept the
fact that someone else has already done
the experiment and accept the result as
positive.
7. Same sex marriages would start us 7. If the argument were true than it would
down a slippery slope towards legalized have already happened in countries
incest, bestial marriages, polygamy and where legalized gay marriages already
all kinds of other horrible consequences. exists.
 88

8. Gay marriages would mean forcing 8. There is no contradiction to the

businesses to provide benefits to argument as all are equal and have equal
homosexual on the same basis as fundamental rights
Heterosexual sex couples.
9. Homosexual marriages are unnatural. 9. Homosexuality is natural. There is
Hence Sodomy law needs to be stricter substantial agreement amongst
and recriminalized researchers that sexual orientation is due
to scientific factor and is determined by
age five or six.
10.Homosexual marriages are the 10. Instances of homosexuality can be
outcome of today complex seen even in ancient, medieval and
individualized postmodern industrial modern India. It’s not the development of
utilitarian society postmodern society.
11. No rights exists that can compel a 11. Denial of legal recognition infringes
state to recognize any relationship the rights of citizens
contrary to the definition of traditional
marriages.
12. Decriminalized homosexual 12. Sexual orientation is due to genetic
marriages will lead to an increase in factor and it is unlikely that an increase
homosexuality and this in turn will in the incidence of homosexuality will
undermine the whole institution of occur as a consequence of
marriage and family decriminalization.
13. Societal attitude is that people oppose 13. Homosexual marriages have the
it, hate it, and even fear it. That is people potential to reject hierarchical concept of
aren’t comfortable with the idea of gender. They challenge patriarchy and
homosexual marriages. the male supremacy derived from it and
are consequently punished for not
participating fully in daily maintenance
of women oppression.
14. Heterosexuality has the advantage of 14. Laws regulating and/or penalizing
slowing the speed of sexually transmitted homosexual activity impede public
disease. health programs as it drive underground
many people at risk.
 89

15. The human species will be in danger 15. In fact gays are giving big favor by
of getting extinct if homosexuality is not bringing more hungry mouth into this
legalized due to lack of reproductive excessive overpopulated world. At the
power in homosexuals. same time the continuity of species can
never be in danger due to sexual minority
which represent not even 10% of the total
world population.
16. Sodomy was illegal and was until 16. In countries where homosexuality is
very recently. legalized sodomy law is repelled and has
been considered obsolete taking into
account the social dynamics.
17. Homosexuality is a disease. The 17. The American Psychiatric
Indian Psychiatric Society also Association has removed homosexuality
acknowledges that homosexuality is a from its list of mental illnesses in 1973
kind of mental illness. and the World Health Organization did
the same in 1981
18. Decriminalization may be a step 18. Criminalization reinforces negative
towards removing some of the stigma societal attitude regarding homosexuality
associated with homosexuality and may which in turn results in greater
have positive repercussions on discrimination and thus impact adversely
relationship between homosexual and on the self-esteem of many homosexuals
their families. which often leads to deception and
friction within families
 90

▪ 5.10.1 Anticipated Positive Effects of Legalizing Homosexuality

in India:
➢ Less exploitation and discrimination:
The legalization of private homosexual acts between consenting adults will check
exploitation, violence and discrimination against LGBT community to a much extent.
LGBT people have been a target of violence mostly by police and public authorities
under section 377 of Indian Penal Code. Even when they are cruising in public parks,
meeting and gathering whereby they do not purport to commit an act defined under
section 377 IPC, they are booked under it. It is one of the most exploited laws which
are used to blackmail and extort homosexuals in India. Legalization will cut short all
exploitation, discrimination, blackmail and extortion.
➢ The LGBT people will get motivation & confidence to come out of closet:
The first positive effect of legalizing homosexuality in India will be on LGBT
community itself. Such people will feel more confident and motivated to come out of
closet. ‘Coming out of closet’ is extremely important as closet is dark and encompasses
a person with abundant fears and inhibitions.
➢ The families of LGBT people will no longer face shame & stigma due to
sexual orientation of their ward:
The families of LGBT People will feel streamlined with other members of the society.
The inclusiveness of this minority community into mainstream will slowly shed away
stigma and humiliation faced by their family members. Mockery of LGBT People does
exist in the society because we have permitted it to prevail so. Funny representation,
non-serious and loose portrait of homosexuals in TV and Media has not only lowered
down the image of LGBT but has also crushed the confidence of their families to face
the society and relatives. Collectively, if the law and the society give respect to LGBT,
protect and safeguard their rights then the morale of the family will also go up and they
will no more face shame and stigma associated with their ward’s sexual orientation.
➢ Better job opportunities:
Once homosexuality is legalized the employers will also adopt policy of inclusiveness
towards LGBT People in their Human resource policies. Because of discomfiture in
society towards this minority community, even the companies/ organizations/
institutions are reluctant to hire LGBT among their workforce. The legalization will
help in ensuring equality of opportunity in jobs for this community.
 91

➢ The LGBT people will come in mainstream sharing equal rights

&opportunities in every sphere of life:
The legalization will foster LGBT people with equal rights and opportunities in every
sphere of life. The law is not sufficient to change the mindset of the people, but
undoubtedly it is instrumental in putting the ball in motion. Criminality of one’s identity
makes him/ her criminal in the eyes of the society, which as a result carries a lot of
hatred, prejudices and exploitation beneath for the members of the LGBT Community.
They are not offered jobs, discriminated at school, home and workplace which crush
their confidence. They are devoid of equal rights and opportunities; all because the
constitutional law which is a custodian, protector of fundamental rights of all has
chosen to disapprove their rights. If homosexuality is legalized the society has to
approve it sooner or later, the community members will feel confident and will be more
accepted in society. They will no more be treated with prejudices and will join the main
stream sharing equal rights and opportunities in life.

➢ Population control can be assured without any measures, as homosexual

acts are void of procreation:
As the homosexual acts are devoid of procreation, it will help benefit Indian society in
two ways:
• The unintended birth of children due to unprotected sex can be controlled, as
homosexual acts are devoid of procreation.
• Inability to have a child by natural ways will push couples to adopt orphans.
According to a survey98 about 20 million children, about 4% of their population
in India and higher than people living in Delhi, are orphans; who are living a
poor, miserable life and constitute a vulnerable class in themselves. These
destitute children are more prone to crimes, as victims well as a criminal. Even
the government is also not able to adequately provide better education and life
to all due to scarcity and non-access of resources.

98
http://www.hindustantimes.com/newdelhi/about-20m-kids-in-india-orphans-study/article1-
725905.aspx).
 92

▪ 5.10.2 Same-sex marriage to be an asset:

If anybody can find someone to love them and to help them through this difficult thing
that we call life, I support that in any shape or form – Will Smith

The major argument of the homosexual couples yearning for legal recognition for their
relationship is that love is love. The love and marriage between two heterosexuals is
celebrated with great fervor, then why not the same right to homosexuals. Homosexuals
in India are many times forced to suppress their orientation and act in a hetero normative
way of getting married with the person of opposite gender and live a normal married
life. Parents need to understand that by making this act for the society, they are actually
destroying two lives. The one whose wishes and orientation is suppressed, having
constant inner struggle with their self-consciousness and the one to whom they are
married. The innocent person deserves someone who can truly love them and make
their life happy and blissful but that happiness gets snatched and they are stuck in a
forced relationship. And for the sake of families, if they start a family and have a child,
the kid would be third in line to get their life destroyed as they are born in a disoriented
family.

Someone told me being gay is wrong because we can’t reproduce. I said “well then, let
the gays adopt all the kids that the straights abandoned after reproducing”- anonymous

People arguing against same-sex marriage are stuck on the point that homosexuals can’t
reproduce or that the child needs a mother and a father. But the fact remains that a
family is formed by love and not by blood.99 There are plenty of ways they can have
kids, either their own by surrogacy/IVF or adopting someone else’s. Bottom line
remains that every child of a homosexual couple would be wanted. They would be
loved. Unlike many children in India who are abandoned because they are born out of
wedlock. Female feticide or infanticide is another major issue in India that can be solved
as homosexuals don’t believe in pathetic thinking of bloodline being carried by a male
child. Most of the couples are more than happy to have a daughter. Be a son or daughter,
they would have parents that will love them with all their hearts and make them feel

99
Ball, Carlos A., and Ball M., Carlos A... The Right to Be Parents: LGBT Families and the
Transformation of Parenthood. United States, NYU Press, 2012.
 93

loved and wanted. There won’t be gender stereotype of which parent will cook and
which will earn, there can be stable nature in a family where couples handle every
responsibility together and this will further be a lesson to that child that no work is made
exclusively for one gender and excused for another. Same-sex parents rely on their
strengths as to who can perform household chores and who can earn rather than
following the social constructs of who is more “motherly” or “fatherly.” Same-sex
parenting offers the children a clear understanding of love, familial responsibility and
equitable relationships. But since our Indian laws neither allow same-sex couples to
adopt a child together nor a male can adopt alone, seems like society would rather have
these unwanted kids struggling in orphanages rather than with a family yearning for
them. There are kids who even if not abandoned are not exactly loved and welcomed
because they were unplanned, the parents weren’t ready for the responsibility, the in-
laws were constantly bugging the daughter-in-law to have a kid or both parents are
working people and got no time for child who is left at the mercy of nanny, baby sitter
or relatives. Or a child whose parents have lost love and affection and are continuing
marriage just for the sake of kid and now witnesses how unhappy his/her parents are
and how they constantly argue and bicker probably to the point of domestic violence.
If it’s a broken home, imagine kid seeing his/her parents fight over custody and later
juggling between mother and father on weekdays and weekends who share joint
custody. But our orthodox law would rather have child going through depression and
stress, ending up in juvie than having two moms or two dads who are very much in love
and do their best in every aspect to give them the best life possible. The parents who
could afford their education, who are ready to balance time and work so that they could
be there to be with their child and strive to be the best version of themselves for their
child. The child if raised by same-sex parents learns from a young age about not
believing in societal norms of hetero parents or gender defined roles or homophobia.
All they would know is that it takes love, trust, care, understanding and warmth to form
a family. This is just one of many benefits of same-sex parenting. Same-sex parenting
is never an accident. About 50% of the pregnancies that occur between members of
opposite-sex encounters or relationships are accidental. When a gay individual or
couple decides to become parents, it is a motivated, well thought, conscious decision.100
Waiting for the time when this well thought decision gets approval by law in India.

100
https://www.creatingfamilies.com/benefits-of-same-sex-parenting/
 94

▪ 5.11 Successful people of the community

It has never been easy for a person belonging to the LGBTQ community in our country.
Though things have begun to look up a little with more awareness and inclusive
attitudes amidst the people, it wasn’t always the case. Amidst the structured societal
norms and taboos, some people took to the stage to be themselves, irrespective of what
got thrown in their way. Here are some of the well-known figures from the LGBTQ+
community in India who have chosen to break the barriers and stand for themselves:

✓ Joyita Mondal is the 1st transgender woman judge from West Bengal.
✓ Vidya Kamble is 2nd transgender woman judge from Nagpur, Maharashtra.
✓ Swati Baruah is 3rd transgender woman judge from Assam
✓ Prithika Yashani is a transgender woman Police Inspector from Tamil Nadu.
✓ Shabnam Mausi is a transgender woman MLA from Madhya Pradesh
✓ Shabi is a transgender woman naval base soldier from Vishakhapatnam
✓ Dutee Chand is a lesbian national level athlete, won silver medal in Asian games
✓ Jiya Das is a transgender woman medical officer from Kolkata
✓ Rituparno Ghosh, a queer is a well-known writer who won international awards.
✓ Bindumadhav Khire is gay activist/writer from Pune
✓ Bhupen Khakhar is gay artist/painter and a Padma Shri awardee
✓ Vikram Seth is gay writer and Padma Shri awardee
✓ Gauri Sawant,a transgender is a well-known social activist.
✓ Aishwarya Tar is a transgender working for Indian Financial service.
✓ Rohit Bal is gay fashion designer.
✓ Anjali Ameer is the first transgender woman to play a lead in a movie
✓ Gazal Dhaliwal is transgender woman, screenplay and dialogue writer.
✓ Atri Kar is 1st transgender woman to take civil service exam as a transgender after
a legal battle regarding having ‘transgender’ as third gender in the form.
 95

▪ Chapter VI: Analysis of Survey Data

The survey conducted through google forms was answered by 50 members of LGBTQ
Community. The results of multiple choice questions have been illustrated by the pie
diagrams below.

1. What do you identify yourself as?

Identify as
15% Lesbian
35% Gay
10%
Bisexual

25% Trangender
15%
Queer

2. Have you ever been abused for being who you are?

Abused Verbally
3% 5%
Physically
24%
Uncomfortable
jokes
Never
48% 20%
closeted

3. Who did you come out to first?

come out to
5%
5% 9%
parents
10% 12% siblings
best friend
virtual friend
stranger
59% closeted
 96

4. Are you ashamed of your sexuality?

Ashamed of sexuality/gender

10%
Yes
28.70%
No
Sometimes
61.30%

5. Have you experienced any kind of social injustice due to your sexuality?

Discrimination
Yes
9.70%
9.70% No

54.80% sometimes
25.80%
Don’t
wanna say

6. Are there people in your life from whom you kept your sexuality hidden because you
are afraid of their response?

Hidden sexuality/gender
13%

Yes

No
87%

7. Has the way that you have been treated in society because of your sexuality, at any
point in your life caused you to have suicidal thoughts/attempts?

Suicidal thought/attempts
10% YES

16%
NO

74% Don’t
wanna
share
 97

8. Have you ever suffered psychologically (like depression, anxiety, panic attacks)
because of how society treats you?

Psychological stress
Yes
23%

52% NO

25%
Sometimes

9. Are your family members supportive of who you are?

Supportive family completely

5%
20%
No. I'm disowned

18% Aren't Supportive

57% but are trying

closeted

10. How do you categories the representation of LGBTQ community in the media (TV
Shows/movies, magazines)?

5% Media representation

Stereotypical
12%

Realistic

83% other

11. Do you think it is important to have celebrity LGBTQ role model?

Is LGBTQ role model important

Yes
12%

No

88%
 98

12. Are there any certain places you avoid going because you are treated differently
there on the basis of your sexuality?

Avoid homophobic place

Yes
40%

60%

No

13. Do you believe your life would have been easier to handle if you were straight?

Easier life if not LGBTQ

33%
Yes No

57%
10%
May be

14. Do you think you would have come out sooner if society was more accepting?

come out sooner

18%
Yes

12%
No
70%

May be

15. If you had a choice, would you want to be cis/straight?

7%
change orientation
18%
Yes

No

75%
May be
 99

16. Do you think sexual orientation/gender identity is a choice or something you’re

born with?

3%
orientation/identity
9% Born with it

Choice

88% I don’t really

know

17. Do you think there are enough laws in favour of LGBTQ community?

3% 3%
Laws for LGBTQ
yes

No

May
be
94%

18. Do you believe your human/fundamental rights are being violated because of your
sexuality?

violation of rights Yes

20%

10% No

70%
Probably

19. Do you think laws needs to be made and/or amended in favour of LGBTQ
community?

Need of New Laws for LGBTQ

9% Yes
7%

No

84%
May
be
 100

▪ Answers for descriptive questions:

✓ What is your favourite part of being a member of LGBTQ Community?

Around 10% people skipped the question as they either were not ready to take
about it or are still closeted and hence not eligible to answer it. 3% are of the
view that there isn’t any likable part because they feel discriminated and
harassed at every sphere of life. Remaining 87% are of common view that
LGBTQ people together form a community either by virtual platforms or in real
life and those people have together formed a strong bond and close knit family
like relationship. They believe that their favourite part is to be with the people
who don’t judge you for who you’re. They are happy to be surrounded by person
who are open to change and acceptance and shower genuine love and care for
each other. They are of the opinion that since most people have gone through
similar experience of being judged or discriminated, they are more accepting
towards each other. There is a sense of comfort and affection. But most
importantly, they feel it to a place they can feel secure, safe. All the people are
supportive of each other. Some of them have contacted with other members
only through social media and are out to them. Such people feel scared about
how the family might react but at the same time they are happy to have someone
with whom they can share their secret. It makes easier to be able to form bond
and communicate with someone who has similar experiences. These members
even act like guidance or moral counsellor and help the ones who are going
through psychological distress or having suicidal thoughts. They constantly
remind each other that they don’t need validation from society and that they
must be confident of who they are and it is completely natural to have sexual
orientation or gender identity that isn’t similar to societal and being different
doesn’t mean they are wrong norms They make each other realize that none of
them are alone and if the outer world is homophobic and judgmental, they still
got each other.
 101

✓ Your views on steps to be taken to make society better for LGBTQ

community.

Most of the respondents believe that society needs to accept homosexuality and
varying gender identities as normal. Complete abolishment of homophobia,
biphobia, transphobia is really essential for development of society. There needs to
be end to the discrimination and harassment and this goal can be achieved by
educating the society. Introducing sex-education that includes different sexual
orientation and gender identities. Sex education shouldn’t be limited to male and
female or heterosexuality. Unless people start considering it normal, they are going
to feel fear, disgust or hatred towards LGBTQ+ people. We need to stop making it
a taboo and normalize that sexuality and gender are social construct that doesn’t
reflect the society we live in now. People need to understand that everyone is a
human and someone’s sexuality or gender do not define them or their position in
the society. Need for more acceptance from society and make it as normal as
heterosexuality. There shouldn’t be need of specifically coming out or declaring the
world what you’re. Need for laws to be amended as all genders and orientation
inclusive. Equality before law should be implemented in real life and laws to be
made that are equal for all and not privileges for cis-het people. Especially
legalizing same-sex marriage and allowing adoption. One respondent smartly
pointed that there shouldn’t even be need of a different community like why is cis-
het the default and those not belonging to it are others as different. One of the best
response came for the question as “I think one way is through the media - more LGBTQ
people in spaces like behind the scenes roles in film and TV, authors (+ add modern
LGBTQ literature in school curriculums), actors, etc., so that LGBTQ people receive more
accurate/authentic representation in mainstream media, instead of the largely
stereotypical/harmful depictions of the LGBTQ community that are still often seen in
media. And since the media has an influence on people’s views on things, hopefully this
would have a positive effect, and would teach other people that being LGBTQ is normal,
and it’s something that they should be accepting of, therefore making society better for
LGBTQ people.”
 102

✓ Anything you want to share regarding the subject.

As this question gave the chance for the respondents to speak their mind (without
disclosing their personal details), some of them took it as an opportunity to thank
the researcher for taking up such bold topic in a society where even talking about is
looked upon with disgust. Some expressed the happiness of having a supportive
family and shared the experience of the time when they had come out. These are
the lucky ones who have their parents and family standing by their side against
homophobic reactions and taunts they have to face in day to day life. Some
expressed how acknowledging their sexuality or gender identity makes them feel
confident and they wish society didn’t make up an issue as to who they are who
they make love to. These things are supposed to be personal and not to share to the
world to gain validation. Some shared the experience about how they are virtually
harassed through private messages. The social media accounts with whom the
researcher interacted for survey purpose are open for private message with the aim
of helping LGBTQ persons and creating awareness but they get harassed by
constant obscene questions or even receive obscene photos of private body parts.
Some homophobic people even contact them just to curse them about how sinful
they are and how they don’t deserve to live in this society. Some even go to the
point of death threats.
 103

▪ 6.2 Analysis of survey data:

From the findings of the survey it is quite evident that sexual orientation and gender
neutrality are factors people are born with and no matter if they wish to change it or
not, they can’t. (Though some wish to change so that they get freed from harassment)
Almost all unanimously agreed that people of sexual minorities face discrimination
ranging from verbal violence, physical violence, constant taunting and bickering to
even bullying & death threats. This is the reason why they remain closeted for years
and some still are in the closet (they only agreed to take up this survey because it doesn’t
require any personal data like name, address or phone no.) the closeted people require
great courage to come out. Most of them feel safe and comfortable to come out first to
their best friend or even friend circle. Sometimes the best friend is actually a virtual
friend whom they met through social media. Sometimes they feel comfortable to come
out even to the stranger if they get to know that the stranger isn’t homophobic and they
won’t be judged. It’s very rare that parents are supportive at first and so life after coming
out is tough but many are caring enough not to disown their kids and are learning to
live the change. Almost all have relative or some people in their lives to whom their
sexuality or gender is hidden because they know those people won’t accept or they have
places they avoid because they know they would be treated harshly there. Many have
been harassed to the point where they get psychological stress, panic/anxiety attack and
or have even had suicidal thoughts.
Most of the respondents believe that their life would have been much easier if they were
straight or of binary gender. They expect same acceptance from society as a cis-het
gets. And the first step they suggest is creating awareness. Homosexuality or non-binary
gender aren’t diseases or mental illness. These are natural factors and nothing to be
ashamed about. To make is less taboo, sex education with regards to it is a must. Also
LGBTQ role model or celebs are good to have as they would represent community in a
proper way. And most importantly inclusive laws are to be made. Laws that might deter
the people from enjoying fundamental rights should be erased and lack of laws that isn’t
allowing them to access basic rights need to be created.
 104

▪ 6.3 Testing Of Hypothesis:

At the beginning of study certain hypothesis were framed.

1. Does the human rights provisions under the national and international instruments
have ensured required protection to the LGBTQ+ community?
✓ After the research study completed and on the basis of participant observation,
data analysis and interpretation, the answer to the above question is negative as
most of the respondents have agreed to face injustice and acts of violence upon
them the facts scream ‘lack of protection’ to the sexual minority.

2. Do the judgements of Supreme Court of India and High courts (with reference to
IPC Sec.377 and recognizing transgender identity) helped the community in real
sense?
✓ From the survey conducted it is safe to say that the answer to above question is no
because even though S.77 is declared unconstitutional, it is still not amended or
repealed and the respondents are still waiting for further legislative action.
Moreover NALSA judgement gave plenty of guidelines to the govt. bodies but still
many of them (e.g. Reservation as economically and socially backward class,
establishment of special health care and sanitation facilities etc.) are not
implemented.

3. Do People of LGBTQ community face various socio-legal issues?

✓ Answer for this question is yes. As per the data collected, LGBTQ+ members face
severe homophobia, discrimination at workplace/educational institution, violence
etc. to the extent of depression, suicidal thoughts and even suicide attempts.

4. Is more support of the legislature and judiciary needed to improve the conditions of
the LGBTQ?
✓ Yes. As per the respondents, mere declaring IPC S.377 as unconstitutional is not
enough and proper amendment/repeal is essential. Also the respondents have
explicitly spoken about need for more laws with regards to same-sex or inter gender
marriage, prohibition of discrimination on the grounds of sexual orientation/gender
identity and permission of adoption to same-sex couples.
 105

5. Is Sexual orientation/gender identity directly related to violation and denial of

fundamental rights of LGBTQ community?
✓ Yes. The respondents have agreed to the fact that they face social as well as legal
injustice because of their SOGI. Bullying by homophobic, termination from job
because ‘you’re gay’, recent declaration of Central government that The
fundamental right under Article 21 cannot be expanded to include the fundamental
right for a same sex marriage to be recognized under the laws of the country 101 and
The center’s denial of rights with statements like - marriage between same-sex
couples was "not permissible" as it was not recognized by "our laws, legal system,
society and our values". It also said that Same sex individuals living together as
partners and having a sexual relationship (which is decriminalized now) is not
comparable with the Indian family unit concept of a husband, a wife and children,
which necessarily presuppose a biological man as a ‘husband’, woman as a ‘wife’
and the children born out of the union between the two” clearly shows that the basic
fundamental rights of equality, prohibition of discrimination and right to life and
personal liberty are violated.
6. Can the problems faced by LGBTQ Community can be solved by creating special
laws for them?
✓ Yes. The respondents have strongly demanded anti-discriminatory laws, legal
recognition of marriage between same-sex couples and permission for adoption to
them.

101
https://economictimes.indiatimes.com/news/politics-and-nation/same-sex-partners-not-comparable-
with-indian-concept-
government/articleshow/81209328.cms?utm_source=contentofinterest&utm_medium=text&utm_camp
aign=cppst
 106

▪ 6.4 Conclusion:
“Law should not sit limply, while those who defy it go free and those who seek
its protection lose hope”- -Malimath Committee Report

After completing this whole research study, it is concluded that primarily this subject
is not much explored because it is considered as a taboo subject and a number of
complicated issues are attached with this. The study concludes that being a person, the
violence against sexual minorities is violation of human rights and in case of asking
and demanding the protection against such violence and discrimination is vehemently
an issue of human rights protection

India, which is termed to be as the world largest democratic country is a developing

country that incorporates a minority of homosexuals. Indian constitution provides
fundamental rights to its voters that embodies right to life, equality, equity etc. However
the rights of LGBTQ particularly the Human Rights are violated in India because of the
criminalizing of the same-sex relationships. Criminalizing of same sex activities isn't
honest towards human rights of Republic of India on the idea as- Homosexuality in
several countries has been legalized and also, several countries have amended their
constitution to incorporate rights for them. In Republic of India, such relationships had
been criminalized as in our country it has been termed as unnatural. In Republic of India
the problem of homosexuals has been a controversial topic that has been heatedly
debated and has attracted the eye of general public likewise as our judiciary. Although
Republic of India is a lively member of UNHR and has signed most of the resolutions,
however homosexuality topic is yet not within the books. According our judiciary, the
criminalizing provisions are unconstitutional and violates fundamentals rights,
parliament has yet to take steps on its repulsion. However seeing that the current
parliament/ central government stand strictly against homosexuality,102 it seems
unlikely to get those provisions repelled or new laws allowing same-sex marriages to
be legal would be happening in near future.

The question of love or intimacy, desire or longing, was always reduced in the judicial
and legislative register to ‘carnal intercourse against the order of nature’.

102
https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/
 107

Law is for the society and the beauty of laws is that it isn’t static. It can and needs to be
changed as per need to of the society. Now the question arises is India ready for the
change to accept homosexuality or differing gender identity? The point is why it would
matter! In 1829, India was not ready to eradicate the inhumane Sati-burning. In 1856,
India was not ready to let widows get remarried. In both cases, majority of the Indians
were vehemently against the proposed changes. But, those changes happened
nevertheless, for better. Sometimes, it does not matter whether the majority of a country
is ready or not; especially in cases, where a minority community is legally harassed,
legally punished, and denied almost all of the basic social rights for decades or even
centuries. It is nothing less than human rights violation- of the highest order, and it
needs to stop. Will it stop overnight, now that loving someone of the same gender is
not a crime anymore? Will LGBT issues get absolutely normalized in a year’s time?
The answer is NO. But the first step towards normalization is legalization. Illegal
practices can never be perceived as normal by the citizens of a nation. A very relevant
example comes to my mind. In 2015, USA legalized (nationwide) gay marriage in 2015.
From the plot, it can be seen that right after 2015, the public acceptance for LGBT
marriage started increasing on a steep curve. Why? Simply because people started to
see more and more married LGBT couples, and they started perceiving them as normal,
nothing obscene, nothing extraordinary, just NORMAL

At the end it can be said that , protecting LGBTQ people from violence and
discrimination does not require the creation of a new set of LGBTQ -specific rights,
nor does it require the establishment of new international human rights standards. The
legal obligations of States to safeguard the human rights of LGBTQ people are well
established in international human rights law on the basis of the Universal Declaration
of Human Rights, subsequently agreed international human rights treaties and the
Constitution of India. All people, irrespective of sex, sexual orientation or gender
identity, are entitled to enjoy the protections provided for by Constitution of India,
including in respect of rights to life, security of person and privacy, the right to be free
from torture, arbitrary arrest and detention, the right to be free from discrimination and
the right to freedom of expression, association and peaceful assembly.
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▪ Future Scope for Further Research

The points included in chapter II, empirical observations Chapter IV and major findings
VI, conclusion and suggestions (chapter VII) have the relationship with further scope
of future research, there is also scope in terms of looking into the changing in the
conventional/traditional laws if homosexuality, same-sex marriage is allowed in India.
This can be seen as consequences of changing in law (Sec. 377 of IPC) and includes
the parenting, adoption, property, marriage, surrogacy, citizenships, workplace
atmosphere, etc. With reference to Indian Constitution especially Article-21. The
conclusion of this research study indicates towards many areas and provides a big scope
of further research. Within the said areas, many qualitative and quantitative issues may
also be included in scope of further research.
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▪ Chapter VII Suggestions:

Keeping in view whole research study, it is suggested that the subject of homosexuality,
sexual minority studies is an open subject and needs more and more research to be done.
Academic institutions should include the study of homosexuality in course curriculum.
Socio-Cultural studies with a relation to sexual minorities are needed to be researched.
The study of homosexuality needs to be done more in various disciplines such as
biological, psychological, historical, medical, anthropological, political, economic,
cultural, law, human rights, etc. It means the contribution from all the disciplines need
to be researched. Sexuality and gender sensitivity program should be imparted in all the
institutions like police, prosecution, judiciary, jails, academic and research institutions.
Much need to research and documentation in context of sexual minority study
specifically. Simply incorporating homosexuality as a special topic positions it as
‘other’ and serves to reinforce a homosexual-heterosexual dichotomy. By focusing
instead on sexuality, it is possible to discuss various forms of sexuality on a par with
one another and thus challenge heteronormativity, heterosexism and homophobia. A
change in education is important, but that education about gender equality is also
necessary for changing attitudes about homosexuality. The principles of Rule of Law,
democracy (social, economic, political and other), natural justice and human rights
should be taken into consideration in case of understanding sexual minority persons. It
is also important that social exchange theories should be based on love, peace, equity.
Understand and treat each and every individual including sexual minorities as equal
person without differentiating on sexuality and gender role basis.
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▪ 7.1 Legal Measures Suggested

✓ Repeal or amend vaguely worded laws such as Section 268, Indian Penal Code,
1860 , state anti-beggary laws, the state variants of the Criminal Tribes Act, 1871
and other laws that are routinely used to target LGBTQ persons and carry adverse
impacts on “rights and freedoms” based on Indian Constitution and UDHR, in line
with international human rights law.
✓ A fresh call for discussion and reconsideration must be initiated by the law ministry.
✓ Comprehensive civil rights legislation must be enacted to offer sexual minorities
the same protection and rights now guaranteed to others on the basis of sex, caste,
creed, and color. The constitution should be amended to include sexual orientation
and gender identity as a ground of non- discrimination.
✓ Either same-sex couples be allowed to marry under Hindu Marriage Act,1955 or a
Special Marriage Act be either enacted for such couples or their right to marry
should be accommodated in the Special Marriage Act, 1954.
✓ Section 375 of the IPC should again be amended to punish all kinds of sexual
violence, including sexual abuse of children. A comprehensive sexual assault law
should be enacted applying to all men, women & others irrespective of their sexual
orientation & marital status.
✓ All ‘conversion therapy’ centers must be shut down immediately and people
involved with torturing in the name of conversion should be strictly punished.
✓ Police reforms must be introduced & implemented. Police at all levels should
undergo sensitization workshops to break down their social prejudices and to train
them to accord sexual minorities, the same courteous & humane treatment, as they
give towards general public. Also, transparency should be adopted in dealing with
sexual minorities.
✓ Delete the provision in the “Guidelines relating to Issue of Passport in
India/Abroad” issued by the Consular Passport and Visa Division of the Ministry
of External Affairs that require applicants to produce proof of sex re-assignment
surgery when seeking a change in the gender designation on a passport.
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▪ A new act as ‘The Protection of Sexual Minorities Act’ must be enacted.

1. It should comprise of all the definitions of the terms of sexual minorities so that no
sexual orientation or gender identity is left out.
2. It should clearly specify and define with meaning of abuse or harassment ranging
from bullying, verbal, physical, cyber bullying, blackmail and extortion, cruelty,
torture, degrading treatment, hate crime, homophobia.
3. It should lay out provisions of duties for appropriate government, local authorities
that they should conduct, sponsor, encourage, support or promote on a regular and
continuous basis information campaigns and sensitization programs to ensure that
the rights recognized in this legislation are respected, protected and promoted.
Provide orientation and sensitization at the school, college, university and
professional training level on the human condition of sexual minorities and the
rights of sexual minority persons.
4. National And State Commissions for Sexual Minorities should be established
comprising of chairperson, members (at least 50% should belong to sexual
minorities) who have a distinguished record of service in the fields of rehabilitation,
advocacy, human rights, law, relating to sexual minorities. They should take all
necessary steps to ensure that sexual minority persons enjoy the right of equality
guaranteed by Article 14, Article-15, Article-19 and Article-21 of the Constitution
of India.
5. They should take all appropriate administrative and other measures to protect
persons from being subjected to torture, or cruel, inhuman or degrading treatment
or punishment.
6. They should take all appropriate administrative, social, educational and other
measures to protect sexual minority persons, both within and outside the home,
from all forms of abuse, bullying, hate crime, violence and exploitation.
7. If they get information of any sexual minority person getting abused, kidnapped,
ill-treated, exploited, they should take all necessary actions to rescue them and
provide safe custody and rehabilitation.
8. Counsellors, medical board and specific courts must be set up.
9. Offences and penalties must be listed clearly.
10. Consenting acts between adults must not be penalized.
11. Powers and duties of members of commission, board, and judges must be specified.
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▪ 7.2 Suggestion for Government Bodies

✓ Govt. should make an Endeavour to end violence against the LGBT community;
both from the police & anti-social elements, and also from within the family.
✓ Regular Census should be conducted with reference to LGBTQ+ persons to know
the target population with reference to enactment of laws and framing rules.
✓ Since majority people accepted that SOGI are in-born and not a choice, any means
to compel the person to change them should be strictly prohibited.
✓ Govt. should enact an anti-discrimination law that addresses sexual orientation and
gender identity issues and protect LGBT persons by ending discrimination at
educational institutions, workplaces, hospitals, clubs, other public & privately run
institutions etc.
✓ Govt. should forbid surgical & psychiatric medical interventions to alter sex, gender
or sexual orientation; unless the person’s complete & free legal consent is obtained.
✓ Setting up of transgender boards on the lines of the Tamil Nadu government &
Karnataka government’s initiatives. Separate public toilets for third gender,
sensitization work conducted by social workers etc. must also be adopted by other
states.
✓ Providing gender sensitization and counseling facilities in various educational
institutions so that LGBTQ youth & parents of such people can have access when
required.
✓ The govt. must also ensure that S.377 is not used as a weapon against innocent
homosexuals. A deep insight into reality of offence & careful investigation must be
done in cases of section 377.
✓ Until & unless the legislative provision of Sec. 377 is neither amended nor deleted,
judiciary must act as Guardian and custodian of this minority community in India.
Judiciary must carefully do the justice by ensuring that homosexuals do not suffer
harassment only because of their sexual orientation, otherwise it would amount to
infringement of Article, 14, 15 & 21 of the constitution.
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▪ 7.3 Suggestions for LGBT Community

✓ The LGBT people have to continue their struggle & fight for gender justice
against all odds.
✓ The LGBT community has to spread awareness about their identity & rights
from grass-root level by organizing more seminars, workshops & awareness
drives in schools, colleges & Universities in collaborations with various
Government & NGOs.
✓ The LGBT people must also educate themselves more that will help them
to influence mindset of general public, and ultimately lead to extinction of
homophobia.
✓ On the whole, they have to boost up their self-esteem, earn respect so that
their issues can be seriously considered & supported by society at large.
They need to bring political awareness & send representatives in parliament,
only then the favorable legislature can be expected for them. Because the
crux remains that until & unless they are not supported by society, neither
legislature, nor judiciary will stand beside them.
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▪ 7.4 Suggestions for Society

✓ The society must have rationale, open, thoughtful, judicial & unbiased approach
towards minority’s community in general & homosexuality in particular.
✓ The people must understand that homosexuality is neither an adopted behavior
nor a way of life but an inherent characteristic of their personality, something
they are born with and not a ‘chosen way of lifestyle’. It is a deviant behavior
in the sense that it does not conform to what the majority do, and such cases
ought to be treated with compassion and understanding. It is essential to realize
here that such orientation is also given to them by the nature itself, and cannot
be changed just by being a friend or relative of a gay man or lesbian woman.
✓ A homosexual goes through a lot of emotional turmoil unless accepted by
family and people of concern. During research it was observed that even if they
declare their sexuality to the world, their pain and sufferings continue until and
unless they manage to live their life to the fullest, either because they continue
to be homosexual or go for a sex change surgery. This surgery itself is too
complicated, costly and time consuming. Thus, we must try to accept them
respecting their sexuality.
✓ LGBTQ+ people need to be counseled & motivated so that they can also live a
life of dignity. It is the responsibility of the Psychologist to counsel the members
of LGBTQ+ community going through depression, anxiety etc. and stop the
people from going on the path of having suicidal thoughts or attempts.
✓ It is also their utmost duty to counsel the parents as well; who desperately
approach them to have their ‘gay’ child cure of his such orientation.
✓ It is the moral and professional responsibility of the sexologist to guide and
encourage homosexuals on safe- sex practices.
✓ It is the professional and moral responsibility of teachers, teaching at various
levels to educate children in such a way that the values of compassion, love for
humanity, rationality in decision making, courage and confidence to face the
world against all odds can be developed.
✓ It is the moral and professional responsibility of our police that they do not
misuse and abuse innocent homosexuals by screening them the weapon of
section 377 IPC.
 115

✓ It is the responsibility of the stakeholders of society to bring such people in

mainstream.
✓ The various employers, including organizations, MNCs, various institutions etc.
must also have empathetic attitude towards LGBT employees & must adopt
anti- discriminatory & zero tolerance of harassment in HR policies towards
homosexuals. It is the responsibility of the employer to ensure that LGBT
people are treated at par with the other employees. They must also receive same
level of dignity and respect, job opportunities at workplace, benefits and
incentives along with encouragement to work.

At last, the society must get rid of homophobia, which is not only prevailing against
homosexuals but also against people who discusses homosexuality.
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▪ Chapter VIII: Bibliography

▪ BOOKS:
➢ Law relating to sexual offences and homosexuality in India by I.K. Magoo
➢ Always My Child by Kevin Jennings
➢ The Right to be parents by Carlos Ball
➢ The Protection of Human Rights: National & International Perspectives by Khwaja
A. Muntaqim,
➢ From the closet to the courtroom by Carlos Balls
➢ Beyond Bullying by Jonathan Fast
➢ Simon vs The Homo sapiens Agenda by Becky Albertalli.
➢ Law and social transformation in India by Malik & Raval
➢ Invisible Minority: the unknown world of the Indian homosexual by Arvind Kala

▪ News Paper Articles:

➢ The Hindu
➢ The Indian Express
➢ Times of India
➢ India Today
➢ Hindustan Times
➢ Frontline Cover Story
➢ Mumbai Mirror
➢ The Telegraph
➢ The Asian Age
➢ New York Times

▪ Reports/Journals
➢ Law Commission Reports
➢ National Crime Record Bureau Data
➢ Criminal Law Journal
➢ Report on Human Rights Violation against the Transgender Community
➢ Wolfenden Committee, Report on Homosexuality and Prostitution
 117

▪ Websites:
➢ http://Business_standard.com
➢ http://thebestschools.org
➢ http://www.barandbench.com
➢ http://www.ijser.org
➢ http://www.ilga.info/index.html
➢ http://www.indiankanoon.org
➢ http://www.legalserviceindia.com
➢ http://www.livelaw.in
➢ http://www.manupatrafast.in
➢ http://www.nationalhomeless.org/
➢ http://www.umiacs.umd.edu/users/sawweb/sawnet/news/news337.txg
➢ http://www.umiacs.umd.edu/users/sawweb/sawnet/news/news337.txt
➢ https://www.latestlaws.com
➢ https://www.scconline.com

▪ STATUTES
➢ Constitution of India, 1949
➢ Foreign Marriage Act 1969
➢ Immoral Traffic Prevention Act (ITPA), 1956 (amended in 1986),
➢ Indian Penal Code, 1860
➢ Special Marriage Act, 1954
➢ The citizenship Act, 1955
➢ The Employees Provident Fund Act, 1952
➢ The Employees State Insurance Act, 1948
➢ The Hindu Marriage Act, 1955
➢ The Indian Christian Marriage Act, 1872
➢ The Insurance Act, 1938
➢ The Payment of Gratuity Act, 1972
➢ The Protection of Human Rights, 1993
➢ The Public Liability Insurance Act, 1991
➢ The Transgender persons (protection of rights) Act, 2019
➢ The Workmen’s Compensation Act, 1923
 118

▪ Appendix (Questionnaire)

(With the aim of respecting the privacy of respondents, since the respondents were
skeptical to answer the survey if details asked, no personal data except their email id
was collected.)

1. What do you identify yourself as?

A. Lesbian
B. Gay
C. Bisexual
D. Transgender M/F
E. Queer

2. Have you ever been abused for being who you are?
A. Verbally abused (using slurs)
B. Physically abused
C. Friends/family joke and tease that makes uncomfortable
D. Never
E. Closeted

3. Who did you come out to first?

A. Parents
B. Sibling
C. Best friend
D. Virtual/internet friend
E. Stranger
F. closeted

4. Are you ashamed of your sexuality?

A. Yes
B. No
C. Sometimes
 119

5. Have you experienced any kind of social injustice due to your sexuality?
A. Yes
B. No
C. Sometimes
D. I don’t want to Share

6. Are there people in your life from whom you kept your sexuality hidden because
you are afraid of their response?
A. Yes
B. No

7. Has the way that you have been treated in society because of your sexuality, at
any point in your life caused you to have suicidal thoughts/attempts?
A. Yes
B. No
C. I don’t want to share

8. Have you ever suffered psychologically (like depression, anxiety, panic attacks)
because of how society treats you?
A. Yes
B. No
C. Sometimes

9. Are your family members supportive of who you are?

A. Yes. Completely
B. No. I’m disowned
C. Aren’t completely supportive but are trying.
D. Closeted

10. How do you categories the representation of LGBTQ community in the media
(TV Shows/movies, magazines)?
A. Stereotypical
B. Realistic
C. Other
 120

11. Do you think it is important to have celebrity LGBTQ role model?

A. Yes
B. No

12. Are there any certain places you avoid going because you are treated differently
there on the basis of your sexuality?
A. Yes
B. No

13. Do you believe your life would have been easier to handle if you were straight?
A. Yes
B. No
C. Maybe

14. Do you think you would have come out sooner if society was more accepting?
A. Yes
B. No
C. May be

15. If you had a choice, would you want to be cis/straight?

A. Yes
B. No
C. May be

16. Do you think sexual orientation/gender identity is a choice or something you’re

born with?
A. It’s a choice
B. Born with it
C. I don’t really know
 121

17. Do you think there are enough laws in favour of LGBTQ community?
A. Yes
B. No
C. Maybe

18. Do you believe your human/fundamental rights are being violated because of
your sexuality?
A. Yes
B. No
C. Probably

19. Do you think laws needs to be made and/or amended in favour of LGBTQ
community?
A. Yes
B. No
C. May be

20. What is your favourite part of being a member of LGBTQ Community?

21. Your views on steps to be taken to make society better for LGBTQ community.

22. Anything you want to share regarding the subject.