Homosexuality refers to a sexual contract between two person of same sex as man and man or female and female. The word homosexual is etymologically Greek and Latin. The word ‘homo’ derives “same”. Homosexuality can be understood as a‘Sexual interest in and attraction to members of one’s own sex’. It is a sexual orientation, as opposed to a gender identity such as male, female, and non-binary. People who are homosexual could refer to themselves as gay, lesbian, LGBTQ, queer, or a number of other terms.
Along with bisexuality and heterosexuality, homosexuality is one of the three main categories of sexual orientation. Public opinion on the acceptance of homosexuality in society remains sharply divided by country, region and economic development. Different societies respond differently to homosexuality. In most of Africa, Asia, and Latin America, it is considered as taboo. In Judeo-Christian as well as Muslim cultures generally perceive homosexual behavior as sinful. Those in Western Europe and the America are generally more accepting of homosexuality than are those in Eastern Europe, Russia, Ukraine, the Middle East and sub-Saharan Africa and public in the Asia-Pacific region generally are split. Change is law of nature and accordingly human society should change as well. Homosexuality is the one of the major social aspect that needs special attention in the present times. It is something which is considered as a stigma and any kind of discussion is ignored or tried to be evaded by the lawmakers.
The LGBT communities all around the world have been in a constant battle against the discrimination they face on a daily basis. Even though in the academic field sexuality was shown to be embedded in various discourses it wasn’t accepted or understood by the state. Also no debate about sexual desire has ever come up with sexual agency as the base. LGBTQ community is fighting for its recognition. Their demands are very simple and reasonable - they wants to be considered at par with the man or woman in relation to rights, representation, employment, benefits, last rights, etc. Because of their special character, they are being denied the basic rights which is guaranteed to every citizen. All of this discrimination has led to a movement by them to fight for their rights and get what is supposed to be never denied to them i.e.Freedom.
II. FORMS OF HOMOSEXUALITY
1. Lesbian - A woman whose primary sexual and affectional orientation is toward people of the same gender
2. Gay - A man whose sexual and affectional orientation is toward people of the same gender
3. Bisexual - A person whose primary sexual and affectional orientation is toward people of the same and other genders or towards people regardless of their gender
4. Transgender – Transgendermeans that one’s internal knowledge of gender is different from conventional or cultural expectations based on the sex that person was assigned at birth.
5. Queer - One definition of queer is abnormal or strange. Historically, queer has been used as an epithet/slur against people whose gender, gender expression and/or sexuality do not conform to dominant expectations
6. Intersex - An umbrella term to describe a wide range of natural body variations that do not fit neatly into conventional definitions of male or female. Intersex variations may include, but are not limited to, variations in chromosome compositions, hormone concentrations, and external and internal characteristics. Many visibly intersex people are mutilated in infancy and early childhood by doctors to make the individual’s sex characteristics conform to society’s idea of what normal bodies should look like.
7. Asexual - Asexuality is distinct from celibacy which is the deliberate abstention from sexual activity despite sexual desire. There are many diverse ways of being asexual. A person who does not experience sexual attraction can experience other forms of attraction such as romantic attraction, as physical attraction and emotional attraction are separate aspects of a person’s identity.
III. ORIGIN OF MOVEMENT RELATED TO HOMOSEXUALITY
India has been facing continuous changes in the pattern of society and its structure of social economical, political and cultural fields. We have witnessed many legal changes which led to controversial as well as pleasing reactions of citizens. As India always focused on its customs and morals of its culture, hence homosexuality or homosexuals always found to be in corner and at unacceptable position in our society. Homosexuality is one of those issues which has been seen as diplomatic towards Indian cultural but always encountered neutral attentions from media as well as people.
Homosexuality, being one of the biggest issue in our country witnessed many evolution within. From getting discrimination and left in corner of society to getting recognition in national representation in various field. LGBTQ community faced loads of problems and gained acceptance beautifully in the society, yet there are various problems which haven't solved, they are still discriminated or not accepted in various aspect but their journey to get their recognition and voice themselves as citizen of India has been very high.
Section 377 of IPC which criminalised all kinds of non-procreative sexual intercourse was enacted in the pre-independence era by the British colonial Government. The despotic law was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. So this law was nothing but a residue of the orthodox Victorian morality which had no place in a democratic country like India.
However, it took more than 70 years and almost 2 decades of the long legal battle to scrape down this old age law that had become a weapon to harass and exploit all those who didn’t conform with the traditional binary of sexuality and gender.
Though the beginning of the LGBT rights movement can be traced back to the early 1990s but all the major developments that happened since then can be discussed in the reference of the following key judgments and their aftermath.
AIDS Bhedbhav Virodhi Andolan v. Union of India
It was the first landmark case related to Section 377 which took place in May, 1994.The petition against Section 377 was filed in the Delhi High Court by an NGO called AIDS Bhedbhav Virodhi Andolan. The petition was the result of the incident that occured in Tihar jail when Kiran Bedi, the then Superintendent of Tihar Jail, refused to provide condoms for inmates on grounds that it would encourage homosexuality and that was against Section 377. ABVA filed a writ petition in Delhi HC in response asking to declare Section 377 as unconstitutional and to provide free condoms in jails. However, this fight came to an end in 2001 when ABVA could not follow through with the petition in court and the petition was eventually dismissed.
CLASSICAL CASES RELATED TO SECTION 377, IPC
Naz Foundation v. Govt. of NCT of Delhi andOthers 2001
Next case to repeal Section 377 was led by the Naz Foundation (India) Trust, an NGO, which was filed in the Delhi High Court in 2001 seeking legalization of homosexual intercourse between consenting adults. The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 insofar as it applied to the consensual sexual conduct of adults of the same sex in private.
Brief facts: In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a park and detained a few men on the suspicion of them being homosexuals. The police also arrested nine more men associated with “Bharosa Trust”, an NGO which was working to create awareness amongst people about safe sexual practices and STD’s. These people were then accused of running a sex racket and were denied bail. It was then that The Lawyers Collective, a legal aid organization, came forward and established that the charges pressed against these people were false and finally they were released.
After the Lucknow incident, an NGO Naz Foundation along with Lawyers Collective went ahead and filed a petition before the Delhi High Court in 2001 challenging the constitutional validity of Section 377 of IPC.
Arguments: The petitioner argued that Section 377 of IPC violated the fundamental right to life and liberty, right to privacy and dignity, right to health, right to equality and freedom of expression. It was also submitted that the law undermined the public health efforts that aimed at reducing the risk of transmission of HIV/AIDS, as the fear of prosecution under the Section prevented people from talking openly about sexuality and lifestyle.
In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law saying that the petitioners had no locus standi in the matter as there was no prosecution pending against the Naz Foundation. The Court also said that the matter of constitutionality of Section 377 was purely academic as the petitioners had not shown any evidence of actual prosecution under the law or cases where the law had been misused.
Upon dismissal, the Naz Foundation did not give up and filed a review petition stating that Section 377 of the IPC renders the homosexual community in India, a disadvantaged group, since they cannot approach the court of law due to the stigma attached to homosexuality in law as well as the society. They are not able to report cases due to the constant harassment faced at the hands of the police. However, the High Court dismissed this review petition as well.
The Naz Foundation then filed a Special Leave Petition (SPL) in February 2006 before the Supreme Court on the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The Supreme Court upheld that the petition dealt with the issue that was being debated all over the world and hence, it is in public interest and does not deal with an academic question. Thus, the Supreme Court dismissed the High Court’s reasoning and reinstated the case at the High Court
In 2006, the National AIDS Control Organization filed an affidavit stating that the enforcement of Section 377 violates LGBT rights. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called ‘Voices against 377’ which supported the demand to read down Section 377 to exclude adult consensual sex from within its purview.
DECISION:On July 2nd, 2009 the Delhi High Court finally gave a verdict on the petition filed in 2001 by the Naz Foundation. The Court declared that Section 377 criminalized consensual sexual acts of adults in private and thus, it is violative of Articles 14, 15 and 21 of the Indian Constitution. The rationale of the decision revolved around dignity, equality and privacy of a person. Along with this, the Court also brought in the concept of ‘Constitutional Morality’ which is above religious morality for India is a secular State. Section 377, though it technically criminalises conduct only, violates Article 14 on the basis that it unfairly targets homosexuals as a class. The court held that that the discrimination caused to MSM (Men having Sex with Men) and gay community is unfair and unreasonable and therefore, in breach of Article 14 of the Constitution of India.
Suresh Kumar Koushal and Another v NAZ Foundation and Others 2014
In pursuance of the Naz Foundation case, a Special Leave Petition was filed in the Supreme Court in 2009 by Suresh Kumar Koushal, a Delhi-based astrologer and a large number of interveners challenged the Delhi High Court’s decision on Section 377. Interveners supporting the Appellants included organizations and individuals who stated that they had an interest in protecting the moral, cultural and religious values of Indian society.
• The Appellants’ argued that Section 377 was not unconstitutional because Section 377 is entirely gender neutral and covers voluntary acts of carnal intercourse irrespective of the gender of persons committing the act. As no specific class is targeted by the law, no classification has been made, therefore rendering the finding of the High Court that it offended Article 14 to be without basis.
• Also, Section 377 does not violate the right to privacy and dignity under Article 21 and the right to privacy does not include the right to commit any offence as defined under Section 377 or any other section.
• Further that if the declaration were approved, India’s social structure and the institution of marriage would be detrimentally affected and it would cause young people to become tempted towards homosexual activities.
• Further, courts by their very nature should not undertake the task of legislating which should be left to Parliament. The High Court was unsure whether it was severing the law or reading it down and as long as the law is on the statute book, there is a constitutional presumption in its favour. Whether a law is moral or immoral is a matter that should be left to Parliament to decide.
Respondents submitted that Section 377 targets the LGBT community by criminalising a closely held personal characteristic such as sexual orientation. By covering within its ambit consensual acts between persons within the privacy of their homes, it is repugnant to the right to equality. Sexual rights and sexuality are human rights guaranteed under Article 21. Section 377 therefore, deprives LGBT of their full moral citizenship. Also, as Section 377 outlaws sexual activity between men which is by its very nature penile and non vaginal, it impacts homosexual men at a deep level and restricts their right to dignity, personhood and identity, equality and right to health by criminalizing all forms of sexual intercourse that homosexual men can indulge in. Further, sexual intimacy is a core aspect of human experience and is important to mental health, psychological well being and social adjustment. By criminalizing sexual acts engaged in by homosexual men, they are denied this human experience while the same is allowed to heterosexuals. It was also argued that the court should take account of changing values and the temporal reasonableness of Section 377. The Constitution is a living document and it should remain flexible to meet newly emerging problems and challenges. The attitude of Indian society is fast changing and the acts which were treated as an offence should no longer be made punitive. Section 377 is impermissibly vague, delegates policy making powers to the police and results in the harassment and abuse of the rights of LGBT persons. Appellants provided evidence of widespread abuse and harassment (citing judicial evidence and NGO reports).
DECISION: In a shocking turn of events for LGBTQ+ community and its supporters, the Supreme Court reversed the judgment of the Delhi High Court and held that Section 377 does not violate the Constitution and is therefore valid. The Supreme Court said that there was not enough evidence to suggest that Section 377 violated the Constitution. The court said that the section does not discriminate against or target homosexual community as a class, as it also punishes heterosexual acts which fall under the scope of this section. The court went on to conclude that the responsibility to change laws lies with the Parliament and it should be left to the Parliament to consider deleting or changing the law.
The Court also regarded the discriminatory treatment complained of by the Naz Foundation as a result of Section 377 as being neither mandated nor condoned by the provision itself and the fact that the police authorities and others misuse Section 377 was not a reflection of the vires of the provision but instead may simply be a relevant factor for Parliament to consider whilst judging whether to amend Section 377. The Judges noted that whilst the Court found that Section 377 was not unconstitutional, the legislature was still free to consider the desirability and propriety of deleting or amending the provision.
This decision shocked the people across LGBTQ+ spectrum and they felt betrayed by the Apex Court which followed a series of protests against the judgement. This led to Navtej Singh Johar, a well renowned award-winning Bharatnatyam dancer, filing a writ petition in the Supreme Court challenging Section 377 in 2016.
Navtej Singh Johar& Others v Union of India 2016
The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional in so far as it pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-Judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision. When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.
Contentions: The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a writ petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Article 21 of the Constitution of India. Furthermore, he sought a declaration that Section 377 was unconstitutional. The Petitioner argued that Section 377 was violative of Article 14 of the Constitution because it was vague in the sense that it did not define carnal intercourse against the order of nature. There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. Among other things, the Petitioner further argued that Section 377 was violative of Article 15 of the Constitution since it discriminated on the basis of the sex of a person’s sexual partner. Also, Section 377 had a chilling effect on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner and Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of a certain choice or manner of living.
DECISION: September 6th, 2018 was a euphoric and historic moment for the LGBTQ+ community in India and across the world. The five-judge Supreme Court bench reached the conclusion that Section 377 of the IPC violates Articles 14,19, and 21 of the Indian Constitution. “The judgment in Suresh Kumar Koushal & Anr. and Naz Foundation & Ors. is hereby overruled” were the concluding words of Justice Indu Malhotra, reinstating that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. However, bestiality, non-consensual sexual activity and sex with minors will continue to be under the ambit of Section 377. The judgment was unanimous yet plural in the sense that the judges reached the same conclusion via different reasons.
While delivering the judgment, the Supreme Court relied upon some major judgments which are as follows:
‘Right to Privacy’ Judgment
The Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. 2017 declared right to privacy as a fundamental right under Article 21 of the Indian Constitution. The Supreme Court also commented on sexual orientation being an essential attribute of privacy. The court said “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.” This argument of the court strengthened the case against Section 377 and in 2018 a five-judge bench led by Justice Deepak Misra started hearing the petition filed by Navtej Singh Johar and others against Section 377.
Recognition as third gender
The Court relied upon its decision in National Legal Services Authority v. Union of India, 2014 to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity. The Court also decided that Hijras, Eunuchs are to be treated as “third gender”. It made various declarations and directions to the Centre and State Governments such as to operate separate HIV Zero-Surveillance Centres, Provision for separate public toilets and appropriate medical care in hospitals for transgender, frame various social welfare awareness schemes for the improvement of conditions of the TG community, to make the public aware about the atrocities against the TG community and to regain the respect and trust the TG community once enjoyed.
This was the landmark judgment of the Supreme Court of India, which declared transgender people the 'third gender', affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.
Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm that an adult’s right to choose a life partner of his/her choice is a facet of individual liberty.
Vide the landmark judgment of Naz Foundation, the Supreme Court also directed the government to create public awareness regarding LGBT rights and to eliminate the stigma surrounding the LGBT people. The judges further elaborated upon the issues surrounding mental health, dignity, privacy, right to self-determination and transgenders.
OPINIONS OF VARIOUS HON’BLE JUDGES OF THE BENCH
Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated that constitutional morality would prevail over social morality to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.
J. Nariman in his opinion analyzed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, has long gone there was no reason for the continuance of the law. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them.
J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its effect was to efface identities of the LGBT community. He stated that, if Section 377 continues to prevail, the LGBT community will be marginalized from health services and the prevalence of HIV will exacerbate. He stated that not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community equal citizenship in all its manifestations.
J. Malhotra affirmed that homosexuality is not an aberration but a variation of sexuality. She stated that the right to privacy does not only include the right to be left alone but also extends to spatial and decisional privacy. She concluded her opinion by stating that history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.
IV. SECTION 377 OF THE CODE AS IT STANDS CURRENTLY
Many people are of the considered opinion that Section 377 of the Code has been decriminalised in its entirety. However, such an opinion is blatantly false. As is evident from the decision of the apex court in Navtej Singh Johar & Ors, only the private consensual sexual acts between the adults (including people belonging to LGBTQ community) have been decriminalised. The remaining parts of Section 377 are still intact. Therefore, Section 377 criminalises only the following:
1. Non-consensual sexual acts between all adults (including people belonging to LGBT community),
2. Acts of bestiality (whether they are committed by a man or a woman).
V. TIMELINE OF CRIMINALISATION AND DECRIMINALISATION OF SECTION 377
Section 377 of the IPC came into effect.
The 172nd Report of Law Commission (2000) recommended deletion of Section 377 of the IPC, owing to the changes made in preceding sections.
A Public Interest Litigation was filed in the Hon’ble High Court of Delhi by Naz Foundation, an NGO, seeking decriminalisation of homosexuality.
The said PIL was dismissed by the Hon’ble High Court of Delhi on the ground of want of cause of action and on the ground that the said PIL cannot be entertained to examine the academic challenge to the constitutionality of Section 377.
The Hon’ble Supreme Court in Naz Foundation v. Government of NCT Delhi (Civil Appeal No. 952 of 2006), while holding that the matter required reconsideration, remitted the matter to the Hon’ble High Court of Delhi.
The Hon’ble High Court of Delhi, in Naz Foundation v. Government of NCT of Delhi (Civil Writ Petition No. 7455/2001), decriminalized only the private consensual sexual acts between adults (including people belonging to LGBT community).
The said decision was challenged in the Hon’ble Supreme Court by Suresh Kumar Koushal, a Delhi based astrologer.
In Suresh Kumar Koushal and Anr. versus. Naz Foundation and Ors. [(2014) 1 SCC 1], the Division Bench of the apex court overruled the decision of the Hon’ble High Court of Delhi in Naz Foundation, thereby criminalising both the consensual and non-consensualsexual acts between adults (including people belonging to LGBT community).
Mr. Shashi Tharoor, a member of Lok Sabha, moved a private member’s bill to decriminalise sexual act between consenting homosexuals. However, the said bill was rejected in the Lok Sabha.
In K.S. Puttaswamy and another v. Union of India and others[(2017) 10 SCC 1], the apex court opined that sexual orientation is a component of rights which are guaranteed under the Constitution of India
In Navtej Singh Johar&Orsversus Union of India Through Secretary Ministry of Law and Justice [Writ Petition (Criminal) No. 76 of 2016], the constitution bench of the apex court decriminalised only the private consensual sexual acts between adults (including people belonging to LGBT community).
VIII. RECENT JUDICIAL PRONOUNCEMENT REGARDING HOMOSEXUALITY
S. Sushama and another versus Commissioner of Police and others, 2021 The Petitioners in this case are a lesbian couple. Both their parents opposed the relationship. The Petitioners fled to Chennai from their respective homes in Madurai because of the fear of getting separated.
The parents of the Petitioners filed missing complaints for their respective daughters with the police. The police started interrogating the Petitioners at their residence. Facing such interrogation, and apprehending a threat from their parents, the Petitioners filed a writ petition at the Madras High Court to ask the police to stop harassing them, and to seek protection from their parents.
Issue concerned: The primary issue before the Court was whether the police should be ordered to stop harassing the Petitioners and provide police protection. However, after this issue was decided, the counsel for the Petitioners urged the Court to issue further guidelines for other cases of similar nature.
The Government Advocate for the police agreed to the primary plea and assured that the police would be instructed properly, and the safety of the Petitioners would be ensured.
Some of the said guidelines issued by the Court are as follows:
A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
B. The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.
C. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
D. The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.
E. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
F. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.
The judgment reiterates the Constitutional guarantees of freedom of sexual orientation and freedom of gender identity and puts the same in practice. It seeks to enforce and supervise the implementation of multiple important measures which the community has fought for, such as banning conversion therapy, LGBTQIA+ inclusive curricula and sensitisation programs. It also reiterates this as a duty of the State under the Trans Act.
It also categorically lays down the procedure that the police must follow when missing persons complaints are filed for people in a consensual relationship, ensuring the freedom of choice of a partner.
IX. RECOGNITION OF SAME-SEX MARRIAGES
As an ordinary citizen who witnessed the victory of the LGBTQ+ community through decision of Navtej Singh Johar v. Union of India which gave them rights under Indian law, one assumes that same-sex couples were now legally recognized in India. While that is partially true, the Court did not expressly legalize same-sex ‘marriage’ in India, but only the sexual conduct of same-sex couples in ‘private’. This is precisely what the Central Government is now using as ammunition.
It is pertinent to note that same sex marriages are not yet recognized in India. Neither of laws governing the marriages in India, (i.e., Hindu Marriage Act, 1955, Special Marriage Act, 1954, Foreign Marriage Act, 1969 etc) recognize same-sex marriages. Several petitions have been filed in various courts across India seeking for recognition of same-sex marriages in India. However, such petitions are still at a very nascent stage i.e., only notice have been issued in such petitions.
Some of the said petitions are:
1. Udit Sood &Ors. v. Union of India & Anr. [W.P.(C) 2574/2021] (Delhi High Court) and
2. Joydeep Sengupta &Ors. v. Ministry of Home Affairs &Ors [W.P.(C) 6150/2021] (Delhi High Court).
We live in the 21st century and it is time to break free from the shackles of orthodoxy and embrace the progressive laws. Homosexuals do not harm the society, criminals do. Homosexuals are not detrimental to the society as content is involved and activities take place between two adults. It does not harm any third person in the society. On the other hand, rape does not involve consent and the country should be focusing on punishing rapists and other criminals instead of criminalising sexual activities between consenting adults and punishing the innocents. There are so many progressive laws that India needs to introduce as soon as possible.
To protect the rights of the Transgender community, a bill in this relation was passed in both the houses of the Parliament, which is Transgender Persons (Protection of Rights) Bill, 2019.
This bill was enacted with a core objective to protect the rights of trans genders by restricting the discrimination against them in the field of employment, education, healthcare accessing them by the mean of private or governmental organization.
The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to:
(iv) access to, or enjoyment of goods, facilities, opportunities available to the public;
(v) right to movement;
(vi) right to reside, rent, or otherwise occupy property;
(vii) opportunity to hold public or private office; and
(viii) access to a government or private establishment in whose care or custody a transgender person is.
Right of residence: Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.