Page 34 - 50 DOI: https://doij.org/10.10000/IJLMH.
112415
INTERNATIONAL JOURNAL OF LAW
MANAGEMENT & HUMANITIES
[ISSN 2581-5369]
Volume 6 | Issue 1
2022
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34 International Journal of Law Management & Humanities [Vol. 6 Iss 1; 34]
A Critical Analysis on LGBT Community
Rights in India
VIRAJ PRATAP KHATTER1
ABSTRACT
The Constitution of India guarantees the most basic inherent rights which are
protected under Part III. All the citizens of the country, India enjoy the fundamental
rights like Right to Equality, Right to Life, etc. But the persons who belong to the
LGBT Community are still topic of a dispute. They are also living as a citizen in this
country and should be treated similarly as other citizens. The country, India has been
lost its citizenship between the individuals of this country. It is the scenario when
there is lack of work, education and discrimination of their caste, creed, etc, amongst
LGBT individuals in the society. The manner in which it has developed and been
treated. It is implanted into the mind of people who still think it to be a mental
disorder or a criminal by the olden civilization, which is a form of mind control.
Bringing the idea of how India was working on it, as well as how the public are
dealing only with openness of it, to the forefront. People all throughout the world are
subjected to violence and inequity because of their appearance or the person they
love. This creates social and economic hurdles, undesired stigmas be gone, and so
this place be transformed into a safe sanctuary for people of all backgrounds, with
rights being treated equally distributed between everyone present. The constant
strain and scrutiny placed on the actions and the concept of LGBT causes some
minor problems. Hence, Human beings are just that: human beings should be treated
in the same way and in the same way.
The research will be doctrinal research. The present research divided into the
following chapterizations. They are: Firstly the overview of LGBT community.
Secondly, the constitutional rights guaranteed to the community. Thirdly, issues and
challenges faced by the LGBT Community and lastly conclusion and
recommendations. This study is an attempt to evaluate the role of LGBTQ individuals
as well as their rights which are violating in the present society. And by this,
researcher would like to get a new conclusion.
Keywords: LGBT, Fundamental Rights, Citizenship, Constitution, Discrimination.
1 Author is a student, India.
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I. INTRODUCTION
Despite the fact that most marriage regulations contain gender-neutral wording, the concept
of marriage in society is widely seen as applying only to relationships between men and
women in most circles. Many examples of approval of homosexual marriages, on the other
hand, have only recently come to light as society has begun to become more permissive of
such unions.
This shift is mirrored in the growing number of jurisdictions that have decriminalized certain
types of criminal behavior. The legal prohibition on homosexual marriages, on the other
hand, has been upheld in many jurisdictions, despite widespread opposition from individuals
and groups who consider that the sodomy legislation is outdated and should be repealed.
Thus, in most countries, same-sex relationships, based on how long they have been going on,
are not legally recognized, and as a consequence, homosexual partners are deprived many of
the economic and legal benefits that come with being married. These include job benefits, the
opportunity to file combined tax returns, and, perhaps most critically since the onset of AIDS,
health benefits as well as rights arising upon the death of a spouse, such as interstate
inheritance and other rights, among other things. Many of these privileges are accessible for
heterosexual de facto partners in general society, but they continue to be inaccessible to
homosexual de facto couples in particular.
II. DEFINITIONS
The term “homosexuals” literally translates as "of the same sex," and “is a combination of the
Greek prefix homo”, which means "same," and the Latin root, which means "sex." “As a
sexual orientation, homosexuality is defined as the attraction between persons who are of the
same sex and who are not attracted to each other sexually”. People who are homosexual,
especially males, are referred to as 'gays,' while gay females are referred to as 'lesbians.' That
is, homosexual marriages, also known as gay marriages, are marriages between two people
who are of the same sexual orientation.
III. HISTORY OF LGBT COMMUNITY IN INDIA
A record from Ancient Greece, where same-sex relationships were considered the norm in
society, is the earliest known “western document addressing homosexual relationships.
Indeed, homosexual marriages have occurred with some regularity in the past, both inside
Christian and non-Christian civilizations alike. In accordance with research, the Catholic
Church, which has been highly vocal in its hostility to homosexuality in general, appears to
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have approved of same-sexual marriages for more than 1500 years, with only a cessation of
such ceremonies occurring during the nineteenth century”.
Gender-neutral marriages, equal marriages, and gay marriages are all terms used to describe
homosexual marriages. “The presence of same-sex love in various forms is also evidenced by
the literature drawn from Hindu, Buddhist, Muslim, and modern fiction, among other
sources. Homosexuality is mentioned in ancient works such as the Manu Smriti, the
Arthashastra, the Kamasutra, the Upanishads, and the Puranas”. There have also been reports
that “sannyasins, who are unable to marry, engage in same-sex interactions on a regular
basis”. As a result, there are examples of homosexuality in historical and mythological texts
all throughout the world, and India is no exception to this. Even today, “in the small Gujarati
town of Angaar, where a ritualistic transgender marriage is performed among the Kutchi
people during the time of the Holi festival, the cultural remnants of homosexuality can be
observed”.
On the other hand, in the last ten years, we have seen a shift in the legal initiatives for lesbian
and gay rights, from the right to be privately sexual, that is, the “right to have any same-sex
relationships at all, to the privilege to be individual civic subjects, protected from
discrimination at work and in the provision of services, and finally toward the right to have
relationships that are recognized by the law”. “Prior to the nineteenth century, these issues
were confined to the society, but the rights of LGBT minorities began to raise concerns about
the violation of their human rights in the nineteenth century. These severe challenges are
brought to the attention of the public by a number of civil society organizations in India.
Lesbian, gay, and bisexual issues were first expressed in a public forum in India in the late
1980s”. It was not until the final decade of the twentieth century that the gay, lesbian,
bisexual, and transgender movements brought the rights of persons who were discriminated
against because of their sexual orientation to the forefront of public discussion.
(A) Statement of Problem
The main issue of the LGBT Community is that in India they are facing lot of discrimination
from the people in the society. And due to these discrimination they are unable to access their
fundamental rights and inaccessible to the services which other citizens can avail. Hence, this
paper will analyze the the legal status of the people belonging to the LGBT Community.
(B) Research Questions
1. Whether the LGBT has a socio-legal status in the society?
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2. Whether the LGBT Fundamental Rights provided by the Indian Constitution are vio-
lated by the people in the society?
3. Whether the Judiciary has approached to Homosexuality in availing all their rights the
society?
(C) Research Objectives
1. To explore and understand the LGBT Community.
2. To analyze Legal provisions related to LGBT Community.
3. To analyze their issues and challenges they face in the society.
(D) Research Methodology
The research is based upon doctrinal research. The author has collected the secondary sources
from books, articles, judgments, news reports, etc. The researcher has reviewed both the
primary as well as secondary sources to have a conclusion of the paper.
(E) Hypothesis
The researcher finds that the LGBT Community facing lot of discrimination in the country
and due to that there are violations of their fundamental rights. The Judiciary plays into an
important role to move the society into social society so that these discrimination against
LGBT can be reduced they can live their life with dignity in the society.
IV. OVERVIEW ON LGBT COMMUNITY
In questions of sexuality, the terminology in people are using and associate with can vary
greatly from different cultures. “The terms ‘lesbian’, ‘gay’, ‘bisexual’ and ‘transgender’
(LGBT) are utilized because these are the English terminology most widely used in the
international human rights discourse”. However, it's in no way intended to dismiss the
diversity of other names and identities, nor to deny the cultural meanings associated to these
terms.2
In the sake of readability and then in order to uphold the wealth of terminology, a variety of
forms are utilized in this report, largely interchangeably. “So, for example, the word lesbian
and gay human rights should be understood as for the human rights of lesbian, gay, bisexual
and transgender individuals”.
When a person’s emotional and sexual attraction to members of the same gender is called gay
orientation if desire toward opposite sex termed heterosexual orientation and if the desire
both towards gender is termed bisexual orientation people.
2 Rachel Sweeney, “Homosexuals and the Right to Privacy” 34 CUMB L REV 171 (2018)
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Gender identity describes a person experience of self-expression through relation to the social
constructions of masculinity or femininity. A person may have had a male or female gender
identity, with that the physiological traits of the opposite sex.
V. THE CONSTITUTIONAL RIGHTS IN INDIA
The Constitution of India guaranteed every person with the Fundamental Rights provided
under Part III. The Constitution never mentions that the basic rights are only available to the
men or women. It has always mentions that every person of this Country is available with the
Fundamental Rights. The every person doesn’t excludes the LGBT they are also comes under
every person. The situation is these people are facing lots of problems regarding employment,
education, and respect in a society. After the judgment passed in 2014 by the Supreme Court,
the situation is somewhere starting improving but then also there is minds of the people
which has been not changed yet. The constitution has provided the basic rights to each and
every citizen of this Country but shall not be judged on the basis of gender. However, no one
can take such rights from the LGBT as they are also the citizen and the part of this Country.
Their rights are guaranteed under Article 14, 15, 16, 19 & 21.
Article 14 – Equality before law
The foremost basic right is “Right to Equality under Article 143 of Indian Constitution” which
says that, the first expression “equality before the law”, says that every person will be treated
equally before the court of law. “This means that no person, whatever his rank or position is,
not be entitled to enjoy any special privilege before the law”. Whereas, the second expression
“equal protection of the laws”, which means that there will be equal protection shall be
secured to all persons within the territorial jurisdiction and the individuals enjoys their rights
and privileges without any discrimination.4
The life of LGBT people is a daily battle as there is no acceptance anywhere and are shunned,
ignored or excluded from the society. This community is in constant battle as they have to
fight in each and every step of their life and discrimination from every part of the society
whether it’s their own family and friends or society at large.
Article 15 – “Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth”5
“The Article 15 prohibits the State from discriminating against citizens on the grounds only
3 The Constitution of India, 1950, art. 14.
4 V.N. Shukla’s Constitution of India, 219 (EBC Publication, New Delhi, 16th edn, 2020).
5 The Constitution of India, 1950, art. 15
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on religion, race, caste, sex or place of birth”. Both the clauses focus on the word ‘only’
which implies the differentiation on one or two grounds only then the law is invalid. These
rights are guaranteed by the Constitution of India to every citizens. But the LGBT community
has been discriminated in the society to enjoy such rights. They have been discriminated on
the ground of their gender identity. In the Article 15 it has mention the word ‘sex’ which
doesn’t just limit to only males or females but also includes third gender.
In “National Legal Services Authority v. Union of India”, 6 the court said that “TGs have
been systematically denied the rights under Article 15(2) that is not to be subjected to any
disability, liability, restriction or condition in regard to access to public places. The court also
believed that TGs are extremely poor and shunned from the society and hence are legally
entitled and eligible to get the benefits of SEBCs”.
Article 21 – Protection of life and personal liberty
Right to life is one of the basic fundamental rights and not even State has the authority to
violate or take away that right. Article 21 clearly states that no person should be deprived of
his life or personal liberty.7 Here, the word ‘person’ has been mentioned. It includes not only
human beings but also the animals. However, they are gender neutral, i.e neither a male nor a
female but they come under as a human. Their life and personal liberty should not be
deprived just because of their gender identity. Our Constitution doesn’t provide this right,
subject to the gender identification.
In “Navtej Singh Johar v. Union of India”, 8 that court observed that in a “democractic
Constitution founded on the rule of law, their rights are sacred as those conferred on others
citizens to protect their freedoms and liberties. Discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and self-worth of the individuals.
Equality demands that the sexual orientation of each individual in society must be protected
on as even platform”.
VI. CHALLENGES FACED BY THE LGBT COMMUNITY IN THE SOCIETY
The scope of “Section 377 of the Indian Penal Code is unclear. The extent of unnatural
offences is defined under Section 377 of the Indian Penal Code. The lack of a clear
demarcation between voluntary and coerced sex, against the natural order, and so forth
Discrimination on the basis of sexual orientation Discrimination on the basis of sexual
6 AIR (2014) 5 SCC 438
7 The Constitution of India, 1950, art. 21.
8 AIR (2018) SC 468 (India)
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orientation is prohibited under the Indian Constitution as a basic right”. 9 Discrimination in the
workplace is prohibited. Individuals who identify as gay or transgender experience
socioeconomic inequities, which are exacerbated in part by discrimination in the job.
Discrimination has a direct impact on their career, stability, and well-being, ultimately
leading to poverty and unemployment. Human rights as well as fundamental rights are
universal, but the state has failed to enact special legislation to protect the rights of the LGBT
minority population and to offer true justice to those who are members of this community. 10
They are also human beings, and the state should give them with the same level of care as
everyone else. When it comes to abusive and discriminatory behavior, LGBT folks are
frequently not legally protected.
VII. LEGAL STATUS OF LGBT COMMUNITY IN INDIA
Unnatural offences are defined in “Section 377 of the Indian Penal Code (1860), which
encompasses sexual orientation discrimination as one among them”. This law dealing to
homosexuality in India was derived from the British penal code, which dates back to the
nineteenth century. 11
In a similar way, the “Section 292 of the IPC refers to obscenity, and there is to put
homosexuality in this category as well. Section 294 is also applicable”. According to the
Indian Penal Code, any form of "obscene behavior in public" is punishable by death.12
It is vital to highlight that in England, homosexuality between consenting partners has been
declared a criminal offence. In the United Kingdom, the Sexual Offenders Act 1967 was
repealed, whilst in India, the Indian Penal Code was repealed.
For the purposes of committing an offence as described in this section, permission is
essentially meaningless. As a result, in India, it is largely the Section 377 provides an
explanation and definition of unnatural offences. It is this area that gives rise to the concept
of homosexuality. The penalty for violating the law is life imprisonment or ten years
imprisonment with a fine.
VIII. CONCLUSION
The LGBT minorities, who are defined by having a different sexual orientation than the
majority of the population, are subjected to prejudice. However, on the surface, they appear
9 M.P. Jain, Indian Constitutional Law 1271 (Lexis Nexis, Haryana, 13th edn. 2020).
10 Supra note 2 at 8
11 The Indian Penal Code, 1860 , (Act 45 of 1860), sec 377.
12 The Indian Penal Code, 1860 , (Act 45 of 1860), sec 292.
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to be human beings, and as such, they are subject to all human rights. In India, there are both
civil and fundamental rights. The current Indian societal matrix strife in the country. The
concept of marriage that is the demand for the legalization of homosexual marriage is
strangely neglected and underappreciated. They would not only enable gay relationships, but
they will also decriminalize the lives of those who engage in such conduct.
LGBT people have long been involved in attempts to achieve racial and socioeconomic
equality and justice. Today, LGBT organizations and groups are increasingly focusing
emphasis on the intersection of the struggles for marriage equality and civil rights. The rights
of LGBT people, as well as the fight for economic, social, political, and racial justice. It is
necessary to preserve their rights as human beings in the society in which they live.
IX. RECOMMENDATIONS
1. Safegaurding the fundamental rights without any discrimination to race, religion, or
national origin towards the LGBT Community.
2. An implementation of the legislation should be enacted with stringent provisions.
3. Also, creating the chances for participation in social and economic activities..
4. The government also should take steps so that they assist employers in improving the
workplace environment and resulted that the LGBT people can also avail the job op-
portunities.
5. The health care facilities, including medical services, should be avail to them with
free of cost by the State Governments
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