Love and Law: History of LGBTQ+ Rights and Freedom in India

At its core, the argument "love is love" was actually just a profound realisation that love stands above all kinds of boundaries, be it identity or societal norms. It is just saying that no matter this gender, love is love and nothing less. That basic declaration was pressed against the prejudices that had historically marginalised LGBTQ+ relationships, calling out for acceptance and recognition of all forms of love. Indian literature from 400 BCE, describes many aspects of sexual diversity. Kama Sutra celebrates homosexuality, bisexuality, and transgender identities, in the description of many sexual behaviours, for men and women. It refers to women who loved other women as "Swarinis" and claims they got married and raised their kids too. "Vikriti Evam Prakriti" literally means "what seems unnatural is also natural," meaning there is an early acceptance of the spectrum of sexuality. Even in Tamil Sangam literature (3 BCE to 4 CE), there are references to male-male relationships.

Section 377 of the Indian Penal Code, which defined "carnal intercourse against the order of nature," was a Victorian construct located within the 1860 Indian Penal Code. It criminalised sexual activity between homosexuals but could, through its vagueness, help define other abnormal sexual behaviour legalistically. This law had been in effect for almost a hundred years, which merely deepened the social stigma and hatred towards the LGBTQ+ community. This law made homosexuality punishable by up to ten years’ imprisonment or even life imprisonment. But that was not all; this was just the beginning of legal persecution of the LGBTQ+ in India. Naz Foundation filed the first legal litigation in India on LGBTQ+ rights way back in 2001; a landmark development in the pursuit of sexual equality as well as human rights. This was an issue of very deep concern that had emerged within pervasive discrimination and criminalization of homosexual acts. The acts defined in Section 377 of the IPC, which prohibits ‘carnal intercourse against the order of nature.’ The Naz Foundation, an NGO focused on HIV/AIDS awareness, took the initiative to challenge the legal and social adversities faced by LGBTQ+ individuals, particularly when there had been enhanced police intimidation and social stigma. The immediate trigger for the Naz Foundation's writ petition was a police raid in Lucknow, where many men were taken into custody allegedly for being homosexuals. It also arrested members of Bharosa Trust, an NGO promoting safe sexual practices, for allegedly running a sex racket. In this case as well, it was clear how Section 377 was being grossly misused to victimise the LGBTQ+ community and organisations working towards their cause. The Naz Foundation, assisted by the Lawyers Collective, filed a Public Interest Litigation before the Delhi High Court challenging the constitutional validity of Section 377. Such was the preliminary hearing, which faced serious woes. In 2003, the Delhi High Court dismissed the petition on procedural grounds holding that the Naz Foundation had no standing as no prosecutions under Section 377 had, at that time, actually taken place. However this repulse did not deter the activists; instead they continued on raising the issue. The Supreme Court also stepped into the issue in 2006 after declaring that the Naz Foundation has the locus to challenge the law and ordered for the case to be sent back to the Delhi High Court for further consideration. In July 2009, following years of legal battles and advocacy, the Delhi High Court delivered a landmark judgement in the case Naz Foundation vs. NCT of Delhi. This court declared Section 377 unconstitutional because it resulted in violation of the fundamental rights enshrined in Articles 14 (equality), 15 (prohibition of discrimination), and 21 (right to life and liberty) of the Indian Constitution. This effectively decriminalised same-sex relations between consenting adults of the same sex because the bench regarded such sections of the law as unconstitutional. The judiciary emphasised that penalising consensual same-sex activities violates personal privacy and individual autonomy. It recognized the fact that sexual orientation is a basic aspect of human identity, and it should not be penalised through criminal law. This judgement offered new hope and positive direction to countless individuals who have long endured oppression. Despite this success, backlash from reactionaries led to a significant counter-effect. In December 2013, the Supreme Court overturned the ruling by the Delhi High Court in Suresh Kumar Koushal vs. Naz Foundation, thus effectively restoring Section 377. The court argued that any change or repeal of such laws was the Exclusive Preserved Right of Parliament, not the courts, and argued that sexual minorities constituted a "minuscule minority" and had no right to constitutional protection. Widespread denunciation and protests by LGBTQ+activists along with their supporters erupted across India upon reversal. The December 2013 decision of the Supreme Court in the case of Suresh Kumar Koushal vs. Naz Foundation reinstated Section 377, which rendered consensual same-sex relationships illegal. This verdict elicited significant backlash from activists, human rights organisations, and the LGBTQ+ community. A considerable number of individuals regarded it as a controversial decision that jeopardised years of advancements. In reaction to this, activists organised to contest the ruling by means of public demonstrations, advocacy initiatives, and revitalised legal strategies. It was in January 2016 that the Supreme Court agreed to look into curative petitions challenging the validity and constitutionality of Section 377. This was a big step because it indicated that the court was willing to reconsider its stand. The landmark ruling in August 2017 on privacy rights in Puttaswamy v. Union of India marked the beginning of rights for the LGBTQ+ community; sexual orientation is, after all, an intrinsic part of personal identity protected by the right to privacy. It was seen as an even earlier indication than many had reckoned that a series of courtroom battles against Section 377 might lie ahead. Activists continued to mobilise for change; they garnered support from different sections of society. High-profile personalities like hotelier Keshav Suri and dancer Navtej Singh Johar challenged Section 377 in public and filed petitions with the Supreme Court. For LGBTQ+ people, this was not only a law change but also recognition by society On September 6, 2018, the Supreme Court gave a landmark judgement in Navtej Singh Johar v. Union of India. In this judgement, the court determined unanimity in stating that section 377 is unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex." Such a bench of five judges deemed that sexual orientation forms a basic aspect of personal identity, and their criminalization violates the constitutional tenets of equality and dignity The court's decision was hailed as a notable ruling for LGBTQ+ rights within India. It not only abolished the criminalization of consensual same-sex relationships but also established a basis for contesting discrimination predicated on sexual orientation. The ruling emphasised the necessity for laws to adapt in accordance with societal values and affirmed that LGBTQ+ individuals are entitled to protection under constitutional rights. Following the judgement given in 2018, legislative reform towards the protection of LGBTQ+ rights regained full momentum. Activists had started demanding anti-discrimination legislation that would recognize same-sex marriages, grant gay/lesbian couples adoption rights, and offer entitlements regarding inheritance. There has been no formal recognition of same-sex marriage nor full protection against discrimination as enacted through legislative means. In November 2019, the Indian Parliament passed the Transgender Persons (Protection of Rights) Act, which aimed at protecting transgender persons' rights. The new law granted recognition to transgender persons as the third gender and made discrimination based on the conditions of gender identity illegal. This stood as a significant step for the rights of transgender persons in India; however, the activists raise many issues with the Act, especially the requirement that transgender people be required to undergo treatments for them to be recognized legally Notwithstanding these progressions, obstacles persist for LGBTQ+ individuals in India. The enduring social stigma continues to impact their everyday experiences, resulting in discrimination across multiple domains, including employment, healthcare, and education. Advocates underscore the necessity of public awareness initiatives to address bias and foster acceptance. The struggle for LGBTQ+ rights in India is far from over; it requires continuous advocacy and engagement in all dimensions, legal, political, and social. Continuous conversation on same-sex marriage and the like is necessary because activists strive to obtain full legal equality. The decision rendered by the Supreme Court in Navtej Singh Johar v. Union of India was hailed as a significant triumph for LGBTQ+ rights, recognizing that sexual orientation constitutes an intrinsic component of personal identity warranting constitutional safeguarding. This ruling not only decriminalised same sex relationships but also laid the groundwork for future legal challenges regarding discrimination based on sexual orientation. This decision mobilized advocates and groups to advocate for additional reforms, such as the acknowledgment of same-sex marriage, the rights to adopt, and extensive anti-discrimination legislation. Despite such developments, much remains to be done towards the legal protection of the LGBTQ+. Same-sex marriage is, for instance, legally forbidden in India, meaning many people cannot inherit from each other, claim tax benefits, or enjoy spousal support. Societal activists argue that legal recognition is a sine qua non for dignity and equality for all, regardless of their sexual orientation. More importantly, though the Transgender Persons (Protection of Rights) Act was implemented in 2019, much criticism has been laid at its doorstep, sadly. Many activists argue that this law is, in fact, not adequately suited for healthcare, employment, and social welfare provisions for transgender people. Then there's an issue with the fact that a person has to go through medical procedures to gain legal recognition, which becomes a question of bodily autonomy and self-identification Activism has been transformative for the advancement of LGBTQ+ rights within India. After the verdict in 2018, several groups and grassroots operations increased their activities to raise awareness and advocate for legislative change regarding LGBTQ+ issues. Pride marches in major cities have become stages for visibility and expressions of solidarity and the plight that continues to afflict LGBTQ+ people. Social media has increasingly become an essential tool of advocacy. Personal stories and experiences promoted by campaigns have humanised issues with the LGBTQ+ rights domain, making it more relatable to a larger audience and garnering greater understanding. Digital activism is one of the prime activities that has mobilised public leaders, politicians, and business executives who otherwise would not have voiced their support for LGBTQ+ rights. The global environment about LGBTQ+ rights has also influenced India's trajectory. As international countries move towards increased acceptance and legal protection of LGBTQ+ people, Indian activists gain inspiration from these developments. International nongovernmental organisations have provided support by way of financial, material, and capacity-building programs intended to enhance grassroots activism efforts However, this global influence faces resistance by elements of conservatism in India who seek to uphold traditional morals and ethics. These forces often portray LGBTQ+ rights as a foreign invasion which threatens Indian cultural identity. The challenge lies in finding a balance between such views and the overarching human rights initiative that is based on rights to dignity and equality. In progressing further, it is imperative to capitalise on the momentum established by recent judicial successes while simultaneously rectifying the existing deficiencies within the legislative framework. Robust anti-discrimination statutes are necessary to safeguard LGBTQ+ individuals against harassment and violence across multiple domains, including employment, healthcare, education, and housing. Furthermore, the recognition of marriage between same-sex individuals should also be considered as part of legal equality. Legalizing same-sex marriage would not only ensure the incorporation of basic rights for the couples concerned but would also say much about society's acceptance. Indian freedom through the struggle for LGBTQ+ rights is complex and diversified, bearing significant legal landmarks, shifts in the social scenario, and challenges that are still being met. From the first legal challenge launched by Naz Foundation in 2001 to the landmark Supreme Court ruling in 2018 decriminalising consensual same-sex relationships, it has been a journey marked with triumphs and setbacks. While these legal victories are monumental in progress achieved, including transgender rights recognition and increased representations in LGBTQ+ issues, huge gaps remain in legislative protections. Without legal recognition of same-sex marriage or comprehensive anti-discrimination laws, some remain very open to discrimination and exclusion. Activism was instrumental in maintaining this movement-always spreading the word and arousing solidarity and change. Grassroots organisations, pride marches, and digital activism all contributed to the dramatic popular cultural shift that occurred toward better acceptance of LGBTQ+ identities. Resistance from conservative factions still exists, suggesting continued dialogue and education to fight stigma. Looking forward, a sustained push is required on all fronts-from the legal to legalise same-sex marriages, full protection against discrimination, support structures for the LGBTQ+ in place, public awareness campaigns to bring about more social acceptance and understanding. The fight for LGBTQ+ rights in India is not just a legal battle; it is a battle for dignity, recognition, and love. As society continues the process toward inclusivity and acceptance, it is vital for laws to reflect these changing currents—and to ensure that all people can live their lives authentically without fear or discrimination. The pursuit of justice and equality is a collective responsibility born of our shared humanity: a testament to the belief that love knows no bounds and should always be celebrated in all its forms. 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