LGBT rights in India
|LGBT rights in India|
Area controlled by India shown in dark green;
claimed but uncontrolled regions shown in light green.
|Same-sex sexual activity legal?||Illegal under section 377 of the Indian penal code. Penalty: Up to life imprisonment |
|Discrimination protections||None (see below)|
Lesbian, gay, bisexual and transgender (LGBT) people in India face danger of being imprisoned up to a life time because of their sexual orientation. Homosexual intercourse is a criminal offence under section 377 of the Indian Penal Code since 1860. Mental, physical, emotional and economic violence against LGBT community in India prevails. Lacking support from family, society or police many gay rape victims stay silent.
In Naz Foundation v. Govt. of NCT of Delhi in 2009, the Delhi High Court ruled Section 377 and other legal prohibitions against private, adult, consensual and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. However, the Supreme Court of India overturned the decision of the lower court on 11 December 2013 and upheld the primacy of section 377.
Law regarding same-sex sexual activity
Homosexual intercourse was made a criminal offence 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." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
According to a ruling by the Indian Supreme Court, 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.[clarification needed] However, even there have been incidents of harassment of homosexual groups.
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 homosexual activity. "This is highly immoral and against the social order." It said that India's moral and social values were different from other countries, and therefore, the state should not be guided by them. The Central Government reversed its stand on 28 February 2012, asserting that there was no error in decriminalising homosexual activity. This resulted in the SC reprimanding the central government 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.
On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction. The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.
In its judgment the Supreme court stated
"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15 and 21 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors... Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality."
The full decision can be found here.
On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC. In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."
Human rights groups[which?] expressed worries that this would render homosexual couples vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination" The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.
Recognition of same-sex relationships
Same-sex marriages are not legal in India.
But that did not stop a Gurgaon court in 2011 from effectively recognising a marriage between two women. 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.
In India one group of transgender people are called Hijras. They were legally granted voting rights as a third sex in 1994. Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS. On 15 April 2014, Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them.
Transgender in Indian Politics
Shabnam Mausi is the first transgender Indian or hijra to be elected to public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003.In 2000 Shabnam Mausi became India's first eunuch MP.(Hijras were granted voting rights in 1994 in India.) In 2003, Hijras in Madhya Pradesh have announced establishing their own political party called "Jeeti Jitayi Politics" (JJP), which literally means 'politics that has already been won'. The party has also released an eight-page election manifesto which it claims outlines why it is different from mainstream political parties.
Kalki Subramaniam, a transgender rights activist, writer and an actor,In the 2011 assembly elections, Kalki tried in vain to get a DMK ticket. Again on March 2014 Kalki announced in Puducherry that she would contest in this election from Villupuram constituency in neighbouring Tamil Nadu. She is likely to be among the very few contestants fighting in the national elections from the transgender community that faces discrimination and ridicule.
Transgender Swapna and gender activist Gopi Shankar from Srishti Madurai staged the protest in Madurai collectorate on 7th October 2013 demanding reservation and to permit alternate genders to appear for examinations conducted by TNPSC, UPSC, SSC and Bank Exams.Swapna, incidentally, had successfully moved the Madras High Court in 2013 seeking permission to write the TNPSC Group II exam as a ‘woman’ candidate. Swapna is the first trans person to clear TNPSC Group IV exams.
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- 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."
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