Sexual orientation of an individual refers to an individual's emotional, physical or romantic attraction towards another person. The sexual orientation of an individual is determined on the basis of the gender of the individual towards he/she feels attracted to. If the individual gets attracted to the person of the same gender, he is referred to as homosexual and if the attraction is towards the person of opposite gender, he is referred to as a heterosexual. Modern scientific evidences provide, beyond an iota of doubt, that the sexual orientation of an individual cannot be changed or altered at the desire of that individual. However, ignorant of these evidences, the legislature in India continue to discriminate against the LGBT community by depriving them of their basic rights.
However, the judiciary in India has taken the charge and has been quite instrumental in recognising the rights of this community so as to end the discrimination to which the LGBT citizens are subjected. The present article provides information about the various rights which are made available to the members of this community by the various decisions of the judiciary. A comparison has also been made with the laws and the conditions of this community as is prevalent in the United Kingdom as well as the United States of America.
The Constitution of India is the supreme charter in the country which vests the citizens of India with certain fundamental rights which are essentially in the nature of basic human rights required for the growth and development of the personality of an individual[i]. These rights vested in the citizens are in the form of a guarantee which is available to them against the excesses and arbitrary action of any organ of the State[ii]. A positive duty is cast upon the State to provide these basic rights to the citizens without any discrimination[iii]. Any action/omission on the part of the state which abridges or deprives the citizens of the exercise of these fundamental rights bring that action under the judicial scrutiny. The Hon'ble Court in the exercise of its judicial power shall vest the citizens with their basic rights[iv].
However, seldom it is seen that all these fundamental rights are available to all the citizens of the country without any form of discrimination. A word of caution is added here to clarify that what is being referred to is unfair discrimination and not a reasonable classification as is permitted under Article 14 of the Constitution. One such community which has been a victim of such inadvertence on the part of the authority in India is the LGBTQIA+ community. Being lathered with decades of social harassment and mental humiliation, the LGBT community in India is one of the most ostracized communities which has no basic human rights vested in them. They have been a constant target of unfounded and medically irrelevant allegations on the part of the legislature of the country besides being adjudged a criminal by the penal law of the land. However, with the progress of time and the sensitization of the people towards their rights, the judiciary is coming forward to correct the lapses which have been created by the State.
The present article focuses on the rights which are available to the LGBTQIA+ community in with a comparison with their position in the United Kingdom as well as the United States of America.
RIGHT OF CONSENSUAL PENILE NON VAGINAL SEXUAL INTERCOURSE BETWEEN ADULTS
The biggest atrocity that was being committed against the members of the LGBTQIA+ community in the country was the criminalisation of their actions by Section 377 of the Indian Penal Code, 1860. Section 377 of the Code provided for the punishment for indulging in carnal intercourse, with any man, woman or animal, against the order of nature an offence punishable with imprisonment and fine. The constitutional vires of this section was a matter of deliberation in a number of cases[v] until the final judgment was delivered by the Hon'ble Court in the case of Navtej Singh Johar and ors vs. Union of India and ors[vi].
It was held by the Hon'ble Court that Section 377 of the Indian Penal Code, 1860 violates Article 14, Article 19 and Article 21 of the Constitution of India. The Supreme Court did not agree with the 'miniscule minority' test laid down in an earlier decision of the court on this subject and held that majority opinion does not constitute a valid basis to disregard the rights of the individual conferred by the constitution. The court opined that if framers of the constitution intended that the protection of the fundamental rights was only for the majority population, then all the fundamental rights would have contained qualifying words such as 'majority persons' or 'majority of citizens'.
It was further held by the court that Section 377 also violates Article 14 of the Constitution of India. Classification adopted under the said section does not have a reasonable nexus with the object which is sought to be achieved. The non consensual penile non vaginal sex being criminalised by the present provision of Section 375 and Protection of Children from Sexual Offences Act, 2012 makes the provision of Section 377 redundant so far it criminalised consensual carnal intercourse. The court further opined that Section 377 of the penal code also violated Article 19(1)(a) of the Constitution of India as it amounts to an unreasonable restriction on the freedom of speech and expression of the individual. Further, Article 21 of the Constitution also violated Article 21 as the right to life includes within its sphere the right to dignity and the right to make choices as would help in the full realisation of the human self of an individual. Thus, the Supreme Court in this case decriminalised Section 377 so far it criminalised voluntary carnal intercourse between adults in private.
In England as well, the Buggery Act of 1533 which was passed during the reign of King Henry VIII, penalised the act of Sodomy committed by men with other man, woman or animal. This act punished the accused person with a punishment of death. This harsh punishment of death sentence was abolished with the introduction of the Offences against the Person Act, 1861 wherein Section 61 of the Act (now repealed) provided for imprisonment for the act of sodomy committed by men. Finally, the need was realised to decriminalise homosexual activities between two consenting adults which were committed in the realm of their privacy. Therefore, the parliament in UK passed the Sexual Offences Act, 1967 which prescribed that if consensual homosexual act took place between two people above the age of 21 in private, it would not amount to an offence[vii]. Finally, a neutral legislation for both homosexual as well as heterosexual act was passed by the parliament known as the Sexual Offences Act, 2003 which provides for the same provisions of law for both heterosexual as well as homosexual acts. As a result, the age of consent for indulging into homosexual activities was also reduced from 21 years to 18 years so as to be at par with the heterosexual acts.
In the United States of America, all the 50 states had its own laws which criminalised homosexual activities committed by men with other men. However, in the 2003 decision by the Hon'ble US Supreme Court in the case of Lawrence vs. Texas[viii] ruled that the sodomy laws in the country which acted as a bar on the freedom of same sex couples are unconstitutional. The Court thus held that homosexual activity between two consenting adults shall not amount to an offence as it was a part of right to privacy of an individual. However, even after this ruling, fourteen states in the United States of America have still not repealed their sodomy laws thereby giving an arbitrary power to the police officials to harass the homosexual individuals[ix]
RIGHT AGAINST DISCRIMINATION ON THE GROUND OF SEX UNDER ARTICLE 15 OF THE CONSTITUTION OF INDIA
The Constitution of India is a living organism having a soul and conscience of its own[x]. The letters written in the Constitution if interpreted in a static way will lead the Constitution to become a dead letter of law. Therefore, it is the duty of the Constitutional courts to put life to the Constitution by interpreting the changing meaning of the words with changing times[xi]. The concept of sex can no longer be construed as per the pigeon hole concept of man and woman but has to be interpreted in light of the changing concept of 'Gender Identity'. In today's time, the concept of gender has no longer remained as an external manifestation of being human but is referred to as an internally felt and ingrained perception of a person about himself. Gender identity may differ from individual to individual. It is an internally felt perception of an individual about himself/herself and may not be confined to any socially set standards of gender. A person's physical gender may be in contrast with his internally felt idea of gender[xii]. Therefore, today the concept of gender is not limited to the culturally and socially defined male and female but includes within its ambit one's own perception of gender which may include transgenders, non-binary genders, etc.
Recognising the various perception of gender identity and giving a progressive interpretation to the Constitution of India, the Hon'ble Supreme Court of India in the case of National Legal Services Authority (NALSA) vs. Union of India[xiii] provided for the protection of rights of transgender persons in India, thus, recognising the transgenders as third gender in the country. The Hon'ble Supreme Court in the judgment of National Legal Service Authority (supra) interpreted the term 'sex' in Article 15 of the Constitution as not only including the biological sex of the person but includes one's own perceived gender identity.
Thus, the Hon'ble Supreme Court of India has widened the concept of the term 'sex' so as to include within its ambit not only the characteristics which define sex of the person externally but all the characteristics and innate features that a person perceives of himself. Therefore, Article 15 now prohibits discrimination on the ground of Gender Identity and not merely on the culturally and socially defined 'sex'.
Discrimination on the basis of sexual orientation is prohibited in United Kingdom under the Equality Act (Sexual Orientation) Regulations, 2007 which provides that no discrimination shall be meted out to any citizen in the provision of goods, services, education or public function on the ground of sexual orientation of an individual.
The Supreme Court of United States also recognises that sexual orientation based discrimination is a form of sex discrimination. In the case of Kimberly Hively vs. Ivy Tech Community College of Indiana[xiv] held that discrimination amongst employees based on their sexual orientation amounts to discrimination based on sex. The US Supreme Court justified it’s holding by giving three reasons:
a. Firstly, sexual orientation based discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
b. Secondly, it is associational discrimination on the basis of sex in which an employer discriminates against lesbian, gay or bisexual employees based on their decision as to who they marry.
c. Finally, it is a form of discrimination based on gender stereotypes in which employees are punished or harassed for failing to live up to societal norms about appropriate masculine and feminine behavior, mannerisms and appearances.
Thus, because of the above justifications, the US Supreme Court concluded sexual orientation based discrimination as a form of sex discrimination.
THE RIGHT TO PRIVACY
The right to privacy is not enumerated as a specific fundamental right under Part III of the Constitution of India. However, it has been regarded as an essential part of right to life and personal liberty under Article 21 of the Constitution of India. The right to privacy is referred to as a protection which is granted to an individual from unnecessary and arbitrary interference by the State into the personal realm of an individual[xv]. This realm of privacy includes protection against telephone tapping by the state[xvi], right to make reproductive choices[xvii], right against test of virginity[xviii], etc.
In the case of Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others[xix], a nine-judge bench of the Supreme Court unanimously declared that there is a fundamental right of privacy which was present in favour of all persons. The concomitant of right to privacy was to protect the right to make choices that were fundamental to the person's way of living from unnecessary interference by the state. The Supreme Court in this case declared that individual dignity forms a part of right to life enshrined under Article 21 and it includes right to carry such function and activities as would constitute a meaningful expression of human self. Therefore, the sexual orientation of an individual was also considered to be a part of his/her sexuality and was accorded protection by the Hon'ble Court. It was emphasised that the State cannot interfere and punish the individuals for anything which is done by them in the area of privacy without affecting the interest of public at large.
THE RIGHT TO MARRIAGE
One of the essential facets of the right to life enshrined under Article 21 of the Constitution of India is the right to marriage. Every individual has a right to choose his/her partner with whom he/she wants to marry. This exercise of choosing a partner is a part of right to dignity of an individual[xx]. An individual who is above the age of 18 years is considered to be mature enough to understand the implications of his or her decisions. In exercise of the choice by an individual, the interference of parents as well as society is not allowed and the individual can marry who so ever he/she likes[xxi]. However, this right of marriage is not available to members of the LGBT community of India in the present time.
Recently, a public interest litigation has been filed before the Hon'ble Delhi High Court seeking a declaration that same-sex marriages be recognised by the State under Section 7 of the Hindu Marriage Act, 1955[xxii]. The petition which has been filed by the members of the LGBT community avers that denying the homosexual couples the right to marriage amounts to a violation of their Right to life enshrined under Article 21 of the Constitution of India as well as is discriminatory under Article 14 as it deprives a certain section of the public a right which is available to other sections on the basis of their sexual orientation. In reply to the above public interest litigation filed before the Court, the Solicitor General of India Tushar Mehta submitted before the court that the concept of same sex marriages was neither recognised by the Indian culture nor by the Indian law[xxiii]. The learned Solicitor General contended before the Court that the judgment given by the Hon'ble Supreme Court in the case of Navtej Singh Johar and others vs. Union of India and others[xxiv] only tend to decriminalise consensual penile non vaginal sexual intercourse and nothing else.
This submission of the Learned Solicitor General is in total disregard of the judgment of the Hon'ble Supreme Court of India in Navtej Singh Johar case (supra). The Hon'ble Court in that case held that the Constitutional morality and constitutional rights of an individual shall always have precedence over the societal morality. The Court opined that the judiciarywhile adjudicating upon the Constitutional rights shall not incline towards the majoritarian view of what is right or wrong and shall provide to the aggrieved citizen the rights which have been guaranteed to him by the Constitution[xxv]. Moreover, it is a trite position of law that the statutes must be given such an interpretation by the Court which tends to advance the spirit and fundamentals of the Constitution[xxvi]. Since the right to marriage is a fundamental right and a part of the right to life of an individual, therefore, a wider meaning is required to be given to the word marriage under the relevant statutes. Therefore, the statement of the Learned Solicitor General is completely baseless and in derogation of the ruling of the Hon'ble Supreme Court.
The right to marriage is effectively provided to the same sex couples in the United Kingdom because of the enactment of the Marriage (Same Sex Couples) Act, 2013 which provides that marriage between the same sex couples is lawful[xxvii].
The Hon'ble US Supreme Court in the 2015 case of Obergefell vs. Hodges[xxviii] held that the right to marriage is a fundamental right and is available to same sex individuals as well. It was held that the fourteenth amendment to the US Constitution which provided for the due process clause and the equal protection clause extended to legalising marriages between same sex couples. The ruling of the court was accepted by all the fifty US States and therefore, same sex marriages were legalised in all the fifty states.
It is often exclaimed that the fight of the LGBT Community has just begin as there are many rights which are still not available to the members of this community such as that of adoption, surrogacy, labour rights or that of succession. However, for a country which still hasn’t evolved from the previous dogmas and taboos, the acceptance of the LGBT relationships is a big victory. However, it is high time that the civil rights which are available to all other members of the community must be available to the members of the LGBT community as well. Discrimination on the basis of sexual orientation which is an innate characteristic of an individual beyond the power of his control is not a reasonable discrimination. The Legislature, therefore, must take account of the modern scientific evidences before framing the laws of the land.
[i] Maneka Gandhi vs. Union of India., AIR 1978 SC 597. [ii] P.D. Shamdasani vs. Central Bank of India., AIR 1952 SC 59. [iii] Asha Ranjan vs. State of Bihar., AIR 2017 SC 1079. [iv] People's Union for Democratic Rights vs. Union of India., AIR 1982 SC 1473. [v] Naz Foundation vs. Government of NCT of Delhi and others., WP(C) No. 7455/2001; Suresh Kumar Koushal and ors. vs. Naz Foundation and ors., AIR 2014 SC 563. [vi] Navtej Singh Johar and ors. vs. Union of India and ors., AIR 2018 SC 4321. [vii] Sexual Offences Act, 1961. Section 1. [viii] Lawrence vs. Texas., 539 U.S. 558 (2003) [ix] http://www.glapn.org/sodomylaws/usa/usa.htm [x] Chief Justice of Andhra Pradesh & ors vs. L.V.A. Dixitulu and others., Appeal (Civil) 2826 of 1977 [xi] Video Electronics Pvt. Ltd. And another vs. State of Punjab and another., AIR 1990 SC 820 [xii] The Yogyakarta Principles. [xiii] National Legal Services Authority (NALSA) vs. Union of India., AIR 2014 SC 1863 [xiv] Kimberly Hively vs. Ivy Tech Community College of Indiana., 853 F.3d 339 (7th Cir. 2017) [xv] Distt. Registrar and Collector vs. Canara Bank., 2005 (1) SCC 496. [xvi] People's Union for Civil Liberties vs. Union of India., AIR 1997 SC 568. [xvii] Devika Biswas vs. Union of India., AIR 2016 SC 4405. [xviii] Surjit Singh Thind vs. Kanwaljit Kaur., AIR 2003 P&H 353. [xix] Justice KS Puttaswamy (Retd.) vs. Union of India., (2017) 10 SCC 1 [xx] Shakti Vahini vs. Union of India., (2018) 7 SCC 192. [xxi] Lata Singh vs. State of UP., AIR 2006 SC 2522. [xxii] https://www.livelaw.in/amp/top-stories/not-allowing-homosexual-marriage-a-violation-of-right-to-life-pil-in-delhi-hc-seeks-recognition-of-same-sex-marriage-162869 [xxiii] https://www.livelaw.in/top-stories/our-culture-law-does-not-recognize-the-concept-of-same-sex-marriages-centre-tells-delhi-hc-162902 [xxiv] Navtej Singh Johar and others vs. Union of India and others., AIR 2018 SC 4321. [xxv] Goodyear India Ltd. vs. State of Haryana., AIR 1990 SC 781. [xxvi] Saurabh Chandri vs. Union of India., AIR 2004 SC 361. [xxvii] Marriage (Same Sex Couples) Act, 2013, Section 1. [xxviii] Obergefell vs. Hodges., 576 US 644 (2015).