Introduction:
In the recent decade, the LGBT Rights have achieved few of its significant milestones, such as striking down of draconian laws that criminalized the bodily autonomy of people, recognition of their Right to Privacy.
These Anti-sodomy laws, including Section 377 of IPC and anti-sodomy laws of UK, South-Africa and other countries primarily focuses on declaring the ‘unnatural’ sexual acts a threat to the society and the set order of nature. What is problematic in these laws is the perception that ‘Your sex is what is between your legs, and your gender is what is between your ears.’ Thus, the State is marking your body and compelling you to identify from the given boxes. This is the mobility axiom of trans-rights movement in India and elsewhere.
The term – LGBT – is an umbrella term to refer to the community as a whole. Transgenders are one of the members of the community. The article however uses both the terms interchangeably. The term ‘Transgender’ used in the following sections, is based on the definition of Transgender Person (Protection of Rights) Act, 2019, which defines transgender as “A person whose gender does not match the gender assigned at the time of the birth.”
History of Marginalization of Transgender Community in India
If we trace the history of deprivation of Rights of transgender Community, it starts from the arrival of British as colonizers in India.
The British considered them as a separate caste and tribe, thus limiting their civil rights. Further, to criminalize their conduct, the Criminal Tribes Act of 1871 was brought, specifically to bring penal action against hijras dancing in public dressed as women.
Author Alok Gupta in his paper ‘Section 377 and the Dignity of Homosexuals’ highlights the link between sodomy as crime and dignity of transgenders. More than the community, it was the act – the ‘unnatural’ sexual act – that abhorred the Biblical mind of the British. This is validated by Lord Macaulay’s refusal to bring any debate on discussion on Section 361, the predecessor of Section 377 of IPC. Section 361 was a clause in the first draft of Indian Penal Code which defined a severe punishment for touching another with unnatural lust. The unwillingness of McCaulay to follow a due of process of law indicates his personal discretion and colored judgements.
Is Transgender concept alien to India?
A popular criticism to transgender rights, similar to abortion rights and marital rape criminalization, is that it is a western concept. As the Court expressed doubts, in Kaushal case, about the expediency of transplanting Western experience in our Country. This makes it important to acknowledge the presence of transgenders as integral (not separate) part of our Indian Community from early days.
Earliest Hindu religious texts, the Vedas, describe individuals belonging to three separate categories according to one’s nature or prakriti. The concept of ‘Napumsaka’ had been an integral part of Hindu Mythology, Puranic literature, epics. Skanda Purana (compiled in 700-1150 ca), mentions of same-sex relationship in the story of Sumedha and Somavan of sons of two Brahmins. The Jain texts also mention the concept of ‘psychological sex.’
Under the Islamic rule, the status of transgender community was among the gatekeepers, trusted confidante and even counselors. In the royal courts, particular in the Ottoman empires and under Mughal rule, they rose to positions as political advisors, generals and guardians of harems.
With advent of British, the position of transgender community fell drastically in the society and they were exposed to exploitation, persecution owing to their vulnerable status.
POST-INDEPENDENCE PHASE:
A brief mention of five landmark judgements is important to understand the growth of LGBT+ movement in India:
Naz Foundation vs Government of NCT Delhi, 2009: On the PIL filed by a Delhi based NGO, Naz, the Delhi High Court declared Section 377 unconstitutional as it violates Article 14,15,16 of the Indian Constitution. However, in Suresh Kumar Kaushal vs Union of India, 2013, this judgment was put aside by the Apex Court.
NALSA Judgement, 2014: The step-back in Suresh Kaushal case was rectified in this judgment in which for the first time in legal history, transgender were recognized as citizens of the country. At length, the issue of marginalization, violation of Fundamental Rights were discussed and guidelines were set for the State’s to bring the neglected community in mainstream.
Justice (Retd) Puttaswamy vs Union of India: The step forward by NALSA judgment was consolidated in this judgment by recognizing Right to Privacy as integral part of Article 21 of the Indian Constitution. The scope was extended to every individual irrespective of their gender and sex, and hence a significant Right for the LGBT+ community to exercise their choice of partner and sexual orientation.
Navtej Singh Johar vs Union of India, 2018: The historic judgement de-criminalizing sex between two adults under Section 377 of the IPC. The judgment is discussed in detail in below.
Arun Kumar vs Inspector General of Registration, TN, 2019: Extending the scope of NALSA judgment, in this case, the Madras High Court expanded category of women as bride under Hindu Marriage Act, 1955 to include transwomen as well. This broadened the Right to Marry of the community.
Navtej Singh Case judgement –
Section 377 is based on two main ingredients – carnal intercourse, and against the order of nature. Thus, all the arguments for and against the issue in number of cases revolved around these them only. What made worse was the incoherency in the statute which was open to discretion of the executors and judiciary. In Khanu vs Emperor[1], the scope of Section 377 was widened to include any sexual act that met these two essentials: a) Existence of penetrative intercourse with an orifice, b) Impossibility of conception, thus against the order of nature.
The problem with these makers was that it included and not included a large variety of acts that may be penal under the Section but not an offence under the Common law. Thus, it was the discretion of the Court that decided the matter at hand.
All these issues were addresses to a great extent in the judgment of the case at hand. Some significant points addressed were:
Constitutional Morality vs Public Morality:
The two-Judge Bench decision in Suresh Kumar Koushal was guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. Dismissing the transgender community as a ‘miniscule minority,’ the allegations of misuse of the Section were left unaddressed. In Navtej case, the five judge Bench recognized the doctrine of progressive realisation of rights. The idea of Constitutional morality uses Constitution as a tool to transform the society and not otherwise.
Order of Nature:
This expression is vague and overboard and violative of Article 14. It overrides element of consent between two adults. There is no intelligible differentia between natural and unnatural carnal intercourse. There is a shift from reproductive/procreative desire to erotic desire. The purpose of coitus is not only for reproductive factors but also emotional companionship. In the contemporary world, even marriage is choice of two consenting adults to engage in sex either for reproduction or otherwise. None of the choice is unnatural. Therefore, sex if performed differently, by two consenting adults, does not make it against order of nature.
Test of Constitutional Validity of Section 377:
The Court tested Section 377 against the Fundamental Rights under Articles 14, 19 and 21. In Suresh Kumar Kaushal vs Union of India, the constitutional validity of the Section 377 was upheld. The contention that it violates article 14 and 21 was rejected on the ground that it punishes unnatural sex, but make no distinction between procreative and non-procreative sex. However, the same view in Navtej case, was sidelined by highlighting the manifestly arbitrary nature of the given Section. As, it provides for criminalizing ‘certain acts’ of heterosexual community but all acts of homosexuals. This puts a lot of discretionary power in the hands of police, as displayed in narratives in a number of cases, one such is Queen Empress vs Khairati. [2]Further, the objective of the Section causes more damage then achieving good as it falsely persecutes the transgender community. For protection of women and children, there are other sections as well such as Section 375 and POCSO.
Homosexuality a normal variant of sexuality:
Referring to Puttaswamy case, the Court said, homosexuality is found to be existing in many species. There is shift from reproductive to erotic desire. It is medically proven that consensual same sex conduct is not against the order of the nature and homosexuality is a normal variant of sexuality.
Scope of Sexual Autonomy beyond transgender issues:
Another important observation made was the recognition that the battle of LGBT community for their Rights is a battle for all. The order of intimacy that is discussed in section 377 is not just about non-procreative but a sex that society finds disturbing, thus an attempt to control the body autonomy of an individual. The Bench equated this repulsion of the society with inter-caste sex and any other activity that goes against the social order.
Analysis of the Arguments:
The whole arguments, from morality to the carnal desire are based on the (sexual) action and not the individual herself. De-criminalization of sex between consenting adults is a major leap forward, but at the same time it confines the Rights of the LGBT+ community within their sexual behavior. Notably, the element of consent is given no value in the controversial section, while it is a litmus test in establishing Rape in Section 365. This further shows the ‘alien’ treatment given to the homosexuals by dismissing their capability to give consent and putting them in bracket of mentally unsound and a minor. Thus, the State claiming ownership over their sexual orientation.
As eloquently put by J.Chandrachud the struggle of LGBT community is not limited to their cause but a Battle for all. He linked the community to the couples across the country who love across the community or caste barrier at enormous personal risk.
To that extent, de-criminalizing the sexual orientation of transgenders has de-criminalized their life, but battle for the LGBT Rights as equal citizens of the country still remains.
Transgender Person (Protection of Rights) Act, 2019:
On the direction of NALSA vs Union of India case, this Act came into force with the objective to bring the marginalised section of the transgender community into the mainstream. It employs working at three levels:
Access to all the state-run schemes etc,
ensuring no discrimination,
punishing the offenders
The chief significance of the Act is recognizing the Identity of the Transgenders. The Act defines the Transgender as: “A person whose gender does not match the gender assigned at the time of the birth.” This definition has the scope of expansion to include transwoman, transman, persons with inter-sex variation, person with socio-cultural identities, etc. A transgender can take a certificate of identity through the prescribed process by application to the District Magistrate. There is a provision of revised identity too, in case the person undergoes any surgery to change the identity.
The Act also provides for National Council for Transgender with the purpose to monitor, advise and redress the grievance related to the transgender community.
However, the Act falls short on many things. It is silent on civil rights, such as marriage, adoption, social security benefits. It provides for equal opportunity in public education and jobs, but the rule of equality before law is not applied here by giving them remedy of reservation like other weaker classes. The punishment for crime against transgender are less compared to the same provision for other sections. No extensive punishment for rape.
The Act does not give right to identify one’s gender. It only provides for gender identity after sex reassignment surgery. The international standards in UN agencies, etc self-declared identity form the basis for all access to social security measures and benefits, etc. In absence of clear guidelines on ‘certificate of identity,’ there is possibility of discretion of the District Judge being used arbitrarily. The act is also silent whether a transgender person who identifies as a woman or man can avail the welfare schemes and programs meant for transgender. In this the Act lacks the prudence that there is a lot of social stigma attached to this issue, which may stop some from coming out in open.
Roadblocks in addressing the drawbacks of the Act:
Marriage:
The marriage laws in India, except Special Marriage Act, are governed by personal laws of major religions. Whether or not a marriage is valid, has a direct consequence on inheritance, succession, rights of children and also other rights such as insurance, loan etc.
The right to marry falls within the scope of Article 21; however, not expressly mentioned anywhere in the Constitution. There are several same-sex marriage petitions pending in the Indian Courts. Marriage of Beena and Savita in 2011[3] was one of the same-sex marriages that got legal recognition from Haryana Court. There is need to address this issue and give a conclusive solution. One suggested measure is to interpret or modify the existing laws as gender neutral. But this will amount to the Court’s interference with the personal laws and has the risk of backfire as witnessed in Shah Bano Begum vs Mohd Khan. The biggest issue in redefining the terms that it will upset the whole scheme of laws.
For example, the terms ‘husband and wife’ are considered male and female. To accommodate LGBT+ community, what parameters will be used to identify a male or female. This identification is important as on this other Sections are based, such as divorce, maintenance. There are certain grounds that are exclusively available to wife for divorce. The interpretation will face the same ambiguity in ascertaining the elements of cruelty, desertion and adultery, as they are differentially applied to male and female.
The reason behind this confusion is the protective approach taken by the law towards female, the weaker sex, and to keep an element of social justice while interpreting laws. Thus, the modification of laws to accommodate LGBT+ community necessitates the long pending reformation of laws by making them gender neutral.
A more practical alternative is to draft an exclusive marriage law focusing on LGBT+ community or give them a legal status of civil union. The Civil Partnership Act, 2004 of UK is a significant mention here which allow same-sex couple to have a flexible marriage with option to file tax-returns, avail pension, loan, etc.
Adoption, guardianship and Surrogacy:
Adoption in India is governed by both religious and secular laws, mainly - Hindu Adoption and Maintenance Act, 2005[4] (HAMA), CARA, JJ Act, and also the regulations under Adoption Regulations Act.
Under HAMA, both married and non-married man or woman can adopt. However, there are certain safeguards, like a single man cannot adopt a girl child. Terms husband and wife are used to define couple. The ‘best interest of child’ is used as a litmus test to accept or reject adoption.
This poses lots of confusion if the adoptee parent does not identify either as male or female. Also, if they identify as woman initially and later changes the identity to man, then there are other complications. Other than this, the social mindset that a male-female family is superior and others are inferior runs dominates the Authority’s discretion while applying the litmus test. A counter argument to this notion can be that it is better that a child is co-parented by a homosexual couple or individual compared to not adopted at all.
The guardianship rights, under the Hindu Minority Guardianship Act also work on these heteronormative presumptions. Here again, the best interest of the child is construed on the lines of sexual orientation of the guardian.
Under the Surrogacy (Regulation) Act, 2021[5], single people, LGBT+ couples are prohibited to have their own children through surrogacy.
Apart from these, the LGBT+ couple or families are non-existent in a number of schemes and special acts, such as Maternity benefits, POSHA, Workmen’s compensation Act, Factory Act, etc. This non-recognition of the community both as victim and as beneficiary exposes them to a grave risk of discrimination, exploitation.
Constructive Solution:
Uniform Civil Code: To address the issues arising from re-interpretation of existing statutes to include LGBT+, the application of Uniform Civil Code to bring gender neutrality in laws can be a possible solution. It is important to understand that many of the ambiguities arise because the laws are woven around the gender roles, and thus fall flat when that identify is not confirmed.
Sensitization and Public Opinion: Though Constitutional Morality works on a different pedestal than the social morality, but public opinion shapes the success or failure of a particular law. Thus, mere de-criminalization of Section 377 would not stop the ostracization of LGBT community, unless the public opinion is made more conducive. One of the main apprehensions against the community is the ‘ignorance’ that leads to gender dysphoria. There is a serious need to demystify the whole concept and understand the various terms associated with it. A welcome step would be to include Sex education and adolescence education program from school level, to sensitize children from the formative level. Movies, stories are another medium to normalize the presence of LGBT community as ‘regular’ members of the society.
Involving LGBT+ in major policy decisions through the way of giving them reservation in employment, education and also representation at governance level.
Stringent application of non-bullying and anti-discriminatory laws: A recent suicide of young student who identified himself as a trans, exposes how ill-equipped are educational institutions in dealing with these issues, mainly because the management itself is ignorant and often prejudiced.
BIBLIOGRAPY:
Cases:
1. Naz Foundation vs Govt of NCT Delhi
2. NALSA judgment, 2014
3. Justice (retd) Puttaswamy vs Union of India, 2017
4. NavtejJohar vs Union of India, 2018
5. Arun Kumar vs Inspector General of Registration, TN. 2019
6. Khanu vs Emperor, AIR 1925 Sind 286
7. Queen Empress vs Khairaati (1884) ILR 6 All 204
Articles:
8. ALOK GUPTA, Article 377 and dignity of Indian homosexuals, Eco & Political Weekly
9. VIMAL SUBRAMANIUM, Gay Rights in India, Eco & Political Weekly
10. M.MICHELRAJ, Historical Evolution of Transgender Community in India, pp17-19, Vol.1 No.4 Asian Review of Social Sciences, 2015
Acts/Authorities
11. Indian Penal Code, 1860
12. Indian Constitution
13. Hindu Adoption & Maintenance Act, 1956, § 6, No. 78, Acts of Parliament, 1956 (India)
14. Hindu Minority and Guardianship Act, 1956
15. Central Adoption Resource Authorities
16. Transgender Person (Protection of Rights) Act, 2019
17. Surrogacy Regulation Act, 2021
[1]Khanu vs Emperor, AIR 1925 Sind 286 [2]Queen Empress vs Khairaati (1884) ILR 6 All 204 [3]https://timesofindia.indiatimes.com/city/gurgaon/In-a-first-Gurgaon-court-recognizes-lesbian-marriage/articleshow/9401421.cms [4]Hindu Adoption & Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India) [5]Surrogacy (Regulation) Act, 2021
Written By,
Vartika Sharma,
Intern, Chanchlani Law World.
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