LGBT rights in India
|LGBT rights in India|
|Same-sex sexual activity legal?||Legal since 2009|
|Discrimination protections||None (see below)|
Lesbian, gay, bisexual and transgender (LGBT) people living in India may face discrimination not faced by non-LGBT persons. Homosexual intercourse was a criminal offence until 2009 under the Indian Penal Code, 1860. The Delhi High Court ruled in Naz Foundation v. Govt. of NCT of Delhi that 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.
Law regarding same-sex sexual activity
Homosexual intercourse was 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." This law was struck down by the 2009 Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi, which 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.
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. 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.
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 2009, an unidentified lawyer in the army said that same-sex sexual acts remain a criminal offense in the Indian military, with a maximum punishment of 7 years in prison.
Hijras face heavy employment discrimination due to their transgender status, and thus frequently earn their income through sex work, which means they are criminalized due to the illegality of kerb-crawling, soliciting in a public place, etc.
Because of the legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS.
According to a report by the United Nations Development Programme, India, hijras have a high prevalence of HIV, and most hijras have low socioeconomic status and literacy levels, posing barriers to seeking health care.
- 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. Retrieved 20 January 2011.
- "In a first, Gurgaon court recognizes lesbian marriage", Times of India
- "India's first married lesbian couple given 24-hour protection", The Telegraph
- "Being gay still a crime in the military", StratPost, 2 July 2009
- Shackle, Samira. "Politicians of the third gender: the "shemale" candidates of Pakistan". New Statesman. Retrieved 11/05/2013.
- "Crystallising Queer Politics-The Naz Foundation Case and Its Implications For India's Transgender Communities". NUJS Law Review. 2009.
- Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion, December 2010, page 4