LGBT rights in India
LGBT rights in India  |
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![Location of India (dark green)in Asia (dark grey) — [Legend]](/wiki/File:India_(orthographic_projection).svg) |
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| Same-sex sexual activity legal? | Legal since 2009; Age of consent higher for homosexuals |
| Gender identity/expression | – |
| Military service | N.A |
| Family rights | |
| Recognition of relationships |
No recognition |
| Adoption | None |
Contents |
[edit] Overview
Homosexual intercourse was a criminal offence until 2009 under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." This law was struck down by the 2009 Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi, which found Section 377 and other legal prohibitions against same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
Whilst convictions under Section 377 were rare,[citation needed] with no convictions at all for homosexual intercourse in the twenty years to 2009,[citation needed] Human Rights Watch have said that the law was used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups.[1] The group documents arrests in Lucknow of four men in 2006 and another four[clarification needed] in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities[2] and, in particular, transsexuals (hijras and kothis) in India.[3]
Decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[4] However, even after the pronouncement of verdict, there have been (rare) incidents of harassment of homosexual groups.[5]
On 16 February 2012, the Supreme Court, during a hearing of a bunch of appeals filed against decriminalisation of gay sex, observed that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time.
The two-judge bench, composed of of Justices G S Singhvi and S J Mukhopadhaya, opined that homosexuality should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilisation have become normal. They had also pointed out that many things, which were considered immoral 20 years ago, have become acceptable to society now. The bench said that gay sex was not an offence prior to 1860 and referred to paintings and sculptures of Khajuraho. Senior Advocate Amrendra Sharan, who opposed the Delhi High Court order of decriminalising gay sex on behalf of the Delhi Commission for Protection of Child Rights, had then submitted that social issues cannot be decided on the basis of sculptures. The apex court bench, however, observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse. Earlier, the Supreme Court bench had asked the anti-gay rights groups, challenging legalisation of gay sex to explain how such acts are against the order of nature as submitted by them.
The apex court was hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations which have opposed the Delhi High Court verdict decriminalising homosexual behaviour.
However, on 23 February 2012, the Union Home Ministry of the UPA government replying to a Supreme Court observation, told the Supreme Court that it was opposed to the decriminalisation of gay sex. "This is highly immoral and against the social order," the Home Ministry told the apex court. It said that India's moral and social values were different from other countries, and therefore, the nation should not be guided by them.[6] The Central Government reversed its stand on 28 February 2012, asserting that there was no error in decriminalising gay sex. This resulted in the SC pulling up the Centre for frequently changing its stand on the issue. Don't make a mockery of the system and don't waste the court's time, an apex court judge told the government.[7]
[edit] Law regarding same-sex sexual activity
Section 377 of the Indian Penal Code was struck down in 2009 for consensual adults. The law continues to apply in the cases involving minors and coercive sex.
The age of consent for both male and female homosexual sex is 18.
[edit] Recognition of same-sex relationships
Same-sex marriages are not legal in India. But that did not stop a Gurgaon court from effectively recognising a marriage between two lesbians.[8]
Since marrying, the couple started receiving threats from friends and relatives in their village.
Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences". Haryana has been the centre of widespread protests by villagers who believe their village councils, or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship."
The couple did win family approval eventually. [3]
[edit] Adoption and family planning
No legal prohibitions or allowances for adoption or family planning by same-sex couples.
[edit] Military service
No known prohibition on military service by LGBT Indians.
[edit] Discrimination protections
No known anti-discrimination protections exist for sexual orientation or gender identity. The court opinion that struck down the criminal laws against homosexuality, when it involved consenting adults in private, was the first time that government discrimination against LGBT Indians was found to be unconstitutional.
No political party or individual Member of Parliament has proposed adding sexual orientation or gender identity to anti-discrimination laws in such areas as employment, education, housing, health care, banking and establishments that serve the general public.
[edit] Living conditions
[edit] Summary
| Same-sex sexual activity legal |  (since 2009) |
| Equal age of consent |  |
| Anti-discrimination laws in employment | |
| Anti-discrimination laws in the provision of goods and services | |
| Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) | |
| Same-sex marriage | (one single case in 2011) |
| Recognition of same-sex couples | |
| Both joint and step adoption by same-sex couples | ? |
| Gays allowed to serve in the military | ? |
| Right to change legal gender | ? |
| Access to IVF for lesbians | |
| MSMs allowed to donate blood | |
[edit] References
- ^ India: Repeal Colonial-Era Sodomy Law, report from Human Rights Watch, 11 January 2006.
- ^ [1][dead link]
- ^ [2][dead link]
- ^ Kusum Ingots v. Union of India, (2004) 6 SCC 254: "An order passed on a 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."
- ^ Pervez Iqbal Siddiqui (28 December 2010). "Crackdown on gay party in Saharanpur, 13 held". The Times of India. http://timesofindia.indiatimes.com/india/Crackdown-on-gay-party-in-Saharanpur-13-held/articleshow/7175530.cms. Retrieved 20 January 2011.
- ^ http://www.mumbaimirror.com/article/3/2012022320120223141327934d025428/Homosexuality-Govt-opposes-HC-verdict-in-apex-court.html
- ^ http://www.indianexpress.com/news/supreme-court-pulls-up-centre-for-flipflop-on-homosexuality/917743/?google_editors_picks=true
- ^ In a first, Gurgaon court recognizes lesbian marriage
- ^ India's first married lesbian couple given 24-hour protection
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