Issues Related to Third Gender & LGBTQIA in India | UPSC Notes

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Issues Related to Third Gender & LGBTQIA in India

LGBTQ+ and Gender Issues

  • Health 
  • Human rights 
  • Privacy 
  • Society 
  • Social security 
  • Pink economy 

Section 377 | IPC | Homosexuality

Recent Development 

  1. “State, parents can’t influence an adults choice of parter.” — SC (July 2018)
  2. Choice of a partner is a person’s FR, and it can be a same-sex partner. (Hadia Case Verdict also support this)
  3. “Accept gay relationships — this will help to meet the health concerns and control the spread of STDs” — SC
    • Same sex couple living in denial with no access to medical care are more prone to contracting and spreading STDs 

Text of Section 377 of Indian Penal Code, 1861

SC decriminalises homosexuality with ‘partially’ striking down Section 377 IPC 🙂 —     Navtej Singh Johar v/s UoI Judgement 

  • Unanimous decision (5-0) — “criminalisation of private, consensual sexual contact between adults of same sex under the Section 377 of IPC is clearly UNCONSTITUTIONAL. However the Section would apply to ‘unnatural’ sexual acts like bestiality (sex with animal | cruelty) and it continues to be a crime under Section 377” 
  • Government should have taken a stand — Justice Chandrachud
    • Government maintained ‘neutrality’ over this issue. Left on the “wisdom of the courts” 

Larger implications of this verdict — 

  1. Health and medicinal support especially for preventing HIV/AIDS which is quite a possibility 
  2. Social stigma attached to this | society has to now accept and respect them 
  3. Global league of nations for upholding the progressive view on LGBTQ rights 
  4. Need to draft in proper legislature to provide more Social Security to this community and to penalise the discriminatory behaviour. Legislature has to step up and take a call. 
  5. Public administration, officials and most importantly Police Officers have to be regularly sensitised over this issue to change their 150+ years attitude towards this community. They should be supportive of them. 
  6. Will eliminate homophobia 
  7. Government need to step up its efforts towards spreading more and more awareness to bring about a behavioural change and make the people more informed about this community 
  8. Doctors and medicinal industry should also come forwards and spread awareness and make people understand that such an inclination towards homosexuality is surely not a mental illness or a disease that needs to be cared. It’s just natural. The person is perfectly fine and fit to carry out a normal life. 
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PINK ECONOMY 

  1. With this verdict — the multi-billion dollar market for the products and services, especially designed for LGBTQ community is opened up — this is called as ‘Pink Economy’ 
  2. It include — LGBT bars, ‘gay’ nightclubs, cafes | customised holidays | hotels | customised products for this community 
  3. Tremendous financial opportunity and to capture a multi-billion dollar market! 

Timeline —

  • 1862 — Section 377 of IPC come into force | Maculay’s legacy 
  • 2009 — Delhi HC in Naz Foundation judgement — decriminalised the consensual sex among same sex — Progressive Judgement | “Suresh Kumar v/s Naz Foundation” case 
  • 2013 — SC quashed the Delhi HC’s order — Regressive Judgement — Suresh Kaushal Case 
  • 2014 — SC Review Bench upheld the earlier SC’s decision of quashing of Delhi HC’s verdict
  • 2017 — Right to Privacy as Fundamental Right | Justice Puttaswamy Verdict 
  • 2018 — relook over the SC’s earlier decisions | Section 377 struck down partially.

Constitutional Check — 

  • Section 377 is the violation of Article — 14, 15, 19, 21(Privacy and dignified life)
  • Section 377 as of now after the verdict — 
    • Any kind of sex (anal etc) between two consenting adults (apart from male-female) — NOT APPLICABLE 
    • Sex with an animal — APPLICABLE 
    • Sex with minor — APPLICABLE 
    • Sex with non-consenting adult — RAPE | APPLICABLE 
  • This verdict also reinstated and refurbished the India’s commitment towards maintaining a Secular nation to its true sense. 
  • All the major reservations over the legality of homosexuality made by various religious leaders — Christians, Islamic, Hindu — were duly heard by the Constitutional Bench and were categorically held irrelevant and uncalled-for. 
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Statements in verdict — 

  1. Homosexuality is NOT unique to humans only. More than 1500 documented species shows such behaviour and hence it is definitely natural and of course its not a mental illness. 
  2. Justice Indu Malhotra — “History owes an apology to this community” 
  3. “I am what I am, so take me as I am.” — CJI while reading out the order

Larger Question — 

Why does the Supreme Court wait for the public consensus and public opinion to build up for testing the constitutionality of a law? It should have the guts to test the legality of the law and protect from the violation of fundamental rights of people SOLELY on the touchstone of the Constitution in an utterly objective manner. 

Supreme Court should have the guts to go AGAINST the popular opinion and populism and should only decide on the legal and constitutional basis, while doing so it may upset certain section (which can be a majority also) of the society, but so what! What is wrong legally should be categorically called illegal, do not wait for the public opinion to change. The verdict on 377 is a 

case-in-point where Supreme Court, very regressively struck down the Delhi HC’s verdict of 2009 in 2013 and then after 5 years when the societal pressure and international movement for the LGBTQ+ rights was on a high, SC corrected the past mistake and overturned the 2013 verdict in 2018. What is wrong now legally and violative of FR, was also violative of FR in 2013 also, but fearing to go against the popular opinion, SC behaved ‘cowardly’ or in an ‘orthodox’ manner back then. 

This should STOP now and in future, SC should only deal the matter on its legality.

  1. Getting the status of FR — time has come to reverse the Section 377 of IPC
  2. Discrimination based on the sexual orientation and gender identity must end.
  3. National Legal Service Authority (NLSA) vs. UoI — declared transgender people as the ‘third gender’, affirmed that all the FR will be equally applicable to the transgender people — Gave them the right to self-determination as male or female or transgender
  4. Suresh Kumar vs. Naz Foundation — Delhi HC decriminalised the consensual sex among adults irrespective of gender — SC quashed the Delhi HC’s judgement and stated Section 377 can’t be repealed.
  5. Larger bench to decide on Sec. 377
  6. “Societal morality changes with time and law should change pace with life.”
  7. What may be natural for one, may not be natural for other.
  8. However small may be a community be in terms of number, it’s rights cannot be taken away. In democracy and under Constitution each and every individual has certain rights (A.21 ofc).
  9. What happens between 2 consenting adults in the four walls, which may be not moral, but as far as it does not disturb the public order and does not cause any nuisance, such an act should not be a matter of concern for the state. 
    1. There is a threshold for every immoral act which has to be crossed for it to become illegal. Not every immoral act is illegal too. In case of homosexuality, which to some can be immoral, but it surely cannot be illegal. 
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CASE-STUDY

  • A club in Delhi — Kitty Su — has organised a successful fashion show of members of LGBTQ+ community. 
  • This is a drive for inclusiveness, acceptance and granting a social status to them. Wash away the ‘vulnerable’ and ‘ostracised’ status in the society.