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|
|Gender identity/expression||Legal gender change allowed on SRS. Right to change legal gender to Male/Female/Other without SRS proposed April 15, 2014 and under discussion|
|Discrimination protections||None (see below)|
|Adoption||Trans* adoptions allowed|
Lesbian, gay, bisexual and transgender (LGBT) people in India face the danger of up to lifelong imprisonment 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 the 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.
On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral. The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court 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. 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 this did not stop a Gurgaon court in 2011 from effectively recognising a marriage between two women. After marrying, the couple began to receive 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 eventually won family approval.
The Tamil Nadu state in India was the first state to introduce a transgender (hijra/ aravani) welfare policy. According to the transgender welfare policy transgender people can access free Sex Reassignment Surgery (SRS) in the Government Hospital (only for MTF); free housing program; various citizenship documents; admission in government colleges with full scholarship for higher studies; alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a Transgender Welfare Board with representatives from the transgender community.
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.
Transgenders in Indian politics
The All India Hijra Kalyan Sabha fought for over a decade to get voting rights, which they finally got in 1994. In 1996 Kali stood for elections in Patna under the then Judicial Reform Party and gave the Janata Dal and the BJP a bit of a fight. Munni ran for the elections as well from South Bombay that year. They both lost, more than 13 years Hijras are participating in the politics in India.
After the defeat of Kali and Munni, three years later we saw Kamla Jaan run and win the position of the mayor of Katni in MP. Then there was Shabnam Mausi, who was elected to the Legislative Assembly in 2002 as well. In the huge political machinery, Heera won a seat at the city council of Jabalpur, Meera won a similar position in Sehora, and so did Gulshan in Bina. In December 2000, Asha Devi became the mayor of Gorakhpur, and Kallu Kinnar was elected to the city council in Varanasi. I am sure there are many more low level, inconspicuous bureaucratic positions that were held by the hijras but did not whip up any excitement for the media — not to mention the cases where they were probably threatened, bullied and killed to prevent them from running for seats. This brings us to the current elections, which has Mangesh Bharat Khandye running for the Thane Lok Sabha seat. 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.
Third Gender Literature and Studies
"Vaadamalli" by novelist Su.Samuthiram is the first Tamil novel about Aravaani community in Tamil Nadu published in the year 1994. Later Transgender activist A. Revathi is the first Hijra to write about Transgender issues and Gender politics in Tamil, her works have been translated in more than 8 languages and acting as a primary resources on Gender Studies in Asia. Her book is part of research project for more than 100 universities. She is the author of Unarvum Uruvamum (Feelings of the Entire Body); is the first of its kind in English from a member of the hijra community. She also acted and directed several stage plays on Gender and Sexuality issues in Tamil and Kannada."The Truth about Me: A Hijra Life Story" by Transgender A. Revathi is part of the syllabus for Final Year students of The American College in Madurai.The American College is the first college in India to introduce Third Gender literature and studies with research oriented seminar and the Tamil terms for Genderqueer people was coined in this college by gender activist Gopi Shankar. Later Naan Saravanan Alla” (2007) and Vidya's “I am Vidya” (2008) became first transwoman autobiography.
Gay Literature studies
LGBT Right Activists
|Swapna Madurai||1st Transwoman to take civil services exams in India|
|A.Revathi||Actor, Artist, Writer, Theater Activist|
|Anjali Gopalan||Human Rights Activist|
|Leena Manimekalai||Poet, Writer, Film maker|
|Rituparno Ghosh||Popular Film maker, Winner of 11 Indian National Film Awards|
|Manvendra Singh Gohil||Prince of Royal Clan|
|Andrew Harvey||Author, religious scholar and teacher of mystic traditions|
|Harish Iyer||Human Rights Activist|
|Celina Jaitley||Miss India 2001|
|Firdaus Kanga||Writer and Actor|
|Karpaga||the first trans person ever in India to perform a leading role in a mainstream movie.|
|Ashok Row Kavi||Founder of Humsafur Trust|
|Agniva Lahiri||Social activist (PLUS Kolkata)|
|Nolan Lewis||Mr India Gay 2013|
|Shabnam Mausi||1st Trans to contest in the Indian election|
|Sushant Divgikar||Mr India Gay 2014|
|Hoshang Merchant||Teacher, Poet and Critic|
|Ismail Merchant||Film producer and director|
|Freddie Mercury||Popular Pop singer|
|Onir||Award winning Film Director|
|Kalki Subramaniam||Founder of Sahodari Foundation|
|Gopi Shankar Madurai||Genderqueer activist, Writer and Founder of Srishti Madurai|
|Nakshatra Bagwe||Actor, Film maker and First ever openly Indian LGBT person to be signed up as a brand ambassador. (for Moovz)|
|Bobby Darling||Transsexual actress|
|Tista Das||Transsexual Activist|
|Pablo Ganguli||Cultural entrepreneur, artist, director and impresario|
|Raul Patil||Mr India Gay 2011|
|Zoltan Parag||Mr India Gay 2008|
|Sridhar Rangayan||Originator of Kasish, Film Maker|
|R. Raj Rao||Writer, Professor of Literature|
|Wendell Rodricks||Fashion Designer and Choreographer|
|Nishit Saran||Filmmaker, gay rights activist|
|Parvez Sharma||Indian writer and documentary filmmaker|
|Ramchandra Siras||Indian linguist and author.|
|Manil Suri||Indian-American mathematician and writer|
|Laxmi Narayan Tripathi||Trans activist|
|Ruth Vanita||Writer and Academician|
|Rose Venkatesan||1st Trans TV host in India|
|Riyad Vinci Wadia||Independent filmmaker|
- "Supreme Court makes homosexuality a crime again - The Times of India". The Times Of India.
- "No separate proposal to repeal or amend section 377 : govt". The Hindustan Times.
- "No separate proposal to repeal or amend section 377 : govt". Economic Times.
- "Lacking support, male rape victims stay silent - The Times of India". The Times Of India.
- Burke, Jason (28 January 2014). "Indian supreme court refuses to review ban on gay sex". The Guardian (Delhi). Archived from the original on 11 February 2014.
- "India top court reinstates gay sex ban". BBC News. 11 December 2013. Archived from the original on 11 February 2014.
- 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.
- Mahapatra, Dhananjay (23 February 2012). "Centre opposes decriminalisation of homosexuality in SC". Economic Times (Times Internet). Retrieved 9 September 2014.
- "Supreme Court pulls up Centre for flip-flop on homosexuality". The Indian Express. 28 February 2012. Retrieved 9 September 2014.
- "Supreme Court sets aside Delhi High Court judgment in Naz Foundation; Declares S.377 to be constitutional".
- Nelson, Dean (11 December 2013). "India's top court upholds law criminalising gay sex". London: The Telegraph. Retrieved 11 December 2013.
- "Supreme Court makes gay sex punishable offence, again; Twitter war breaks out between those for and against the verdict". DNA India. Retrieved 11 December 2013.
- "Homosexuality is criminal offence: Supreme Court". Economic Times. 11 December 2013. Retrieved 11 December 2013.
- "Supreme Court refuses overruling its Verdict on Section 377 and Homosexuality". IANS. Biharprabha News. Retrieved 28 January 2014.
- J Venkatesan (11 December 2013). "Supreme Court sets aside Delhi HC verdict decriminalising gay sex". The Hindu (Chennai, India). Retrieved 2013-12-12.
- Harmit Shah Singh (11 December 2013). "India's Supreme Court declares homosexual sex illegal". CNN.
- "Naz Foundation to file review petition against SC order on section 377".
- "In a first, Gurgaon court recognizes lesbian marriage", Times of India
- "India's first married lesbian couple given 24-hour protection", The Telegraph
- "Lesbian couple's parents accept their relationship - The Times of India". The Times Of India.
- Shackle, Samira. "Politicians of the third gender: the "shemale" candidates of Pakistan". New Statesman. Retrieved 11/05/2013. Check date values in:
- "Crystallising Queer Politics-The Naz Foundation Case and Its Implications For India's Transgender Communities". NUJS Law Review. 2009.
- "Supreme Court’s Third Gender Status to Transgenders is a landmark". IANS. news.biharprabha.com. Retrieved 15 April 2014.
- "Eunuch MP takes seat". BBC News. 6 March 2000.
- Jaisankar, C.; Raghunathan, A. V. "Transgender Kalki in poll race". The Hindu (Chennai, India).
- "Transgenders stage protest at collectorate - The Times of India". The Times Of India.
- Winter, Gopi Shankar (2014). Maraikkappatta Pakkangal: மறைக்கப்பட்ட பக்கங்கள். Srishti Madurai. ISBN 9781500380939. OCLC 703235508.