It is time we stop mincing words and finally admit that India is not a safe place for sexual minorities. Day in and day out, it is a life of struggle and strife for them—the benefits of laws meant to protect individual rights are often unavailable to them. Fundamental rights seem like only a superficial bulwark against oppression when they are ostracized not just from society but from the legal system itself. This predicament shows us why we need to look towards Queer Legal Theory to answer these difficulties faced by sexual minorities in India.
Societal isolation, discrimination, stigma, and atrocities of various kinds plague the lives of sexual minorities in India. During youth, they know that they are distinct from the “majority others.” Because of familial and cultural pressure, many of them end up in marital/heterosexual relationships against their desire. These unions result in marital discord, divorce, or low quality of life. Their family relatives often deny their legal inheritance. Educational establishments prohibit them from entering their premises. As a result, illiteracy among the sexual minority is rampant. Government positions that have vacancies sometimes do not consider them for the same. Even if they have a job, once their gender identity/sexual orientation comes to knowledge, they are let go. Hotels, hospitals, movie theatres, government offices, or public places often refuse to permit them. Because of blatant discrimination and a hostile job environment, they have no choice but to rely on begging and prostitution for a living. Moreover, in some parts of India, the heinous practice of conversion therapy on LGBTQ individuals goes on. These perpetual injustices take a massive toll on the physical and mental health of sexual minorities, which is detectable in the statistical increase in the number of suicides within this group. No doubt, there has been an improvement in the lives of sexual minorities, but we need to work exponentially hard for their welfare, so they lead a life of dignity and one worth living.
Queer Legal Theory
To safeguard the rights and prevent the ‘othering’ of sexual minorities, we need to structure our laws in a more inclusive way and from someone who belongs to the community. Queer Legal Theory is a form of post-structuralist critical thinking. It deals with deconstruction in asking about forms of knowledge, where ‘gender’ is a form of learning about self instead of a label given by society. It is not merely an analysis; it also suggests that new things must come instead of deconstructing. The cornerstone of Queer Theory lies in this understanding that identity is a) not fixed; therefore, it is changeable, mutable, and dynamic; b) it does not determine who we are.
Queering the law involves bringing in a legal viewpoint that permits suppressed voices to speak and rereading law and legal history from a queer and subaltern perspective. A queer legal perspective may enlighten us about political involvement and provide us with a method to rewrite legal history. The fact is that the historical existence of queer people has been rendered invisible through silence. It has also been rendered immoral by dismissing a robust same-sex tradition in Indian history, completely irrelevant. We have managed to silence the existence of queer culture through a willful attempt to heterosexualize queer practices. In India, this promotes heteronormativity, which says that heterosexual sex and love are the norm and should be enforced uniformly on everyone. However, numerous accounts of same-sex love have been unearthed by queer historians such as Ruth Vanita and Salim Kidwai. They have disputed the trend in Indian histography that India has always had a heteronormative culture in their book ‘Same-Sex Love in India: Readings from Literature and History.
Instances of application of Queer Legal theory in India
There have been instances wherein the judiciary has stood up to shield the rights of sexual minorities. They have rolled back legislative and even judicial measures made within the restricted worldview of heteronormativity. A few examples of the same are listed below. ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life or with imprisonment of either description for a term that may extend to ten years and shall be liable to a fine,’ reads section 377, which has since been repealed. The fact that the LGTBQ community was being targeted with the following statute became more apparent with the passage of the Criminal Tribes Act of 1871 and its subsequent amendment in 1897.
Naz Foundation v Government of NCT Delhi 2009– This was a case brought to the Delhi High Court in 2001 by the lawyers’ collective HIV/AIDS union on behalf of the Naz Foundation, an NGO in Delhi. ‘The Lawyers Collective’ filed a constitutional challenge to section 377 of the IPC, stating that this law violated certain fundamental rights protected in the Indian Constitution, namely equality privacy and freedom of expression. Accordingly, they pleaded that the law is declared ultra vires (beyond the powers of the Parliament to enact such a law) as it violated certain basic tenets of the constitution. The courts decided in favor of the Naz Foundation in 2009, declaring Section 377 unlawful since it violated Articles 14, 15, and 16 of the Indian Constitution. Legal Theoretical Innovation of the Naz Judgement – Inaugurated a new discourse moving away from ‘carnal intercourse,’ which found a place in the IPC. It introduced a new meaning to concepts like privacy, morality, equality, and inclusiveness. However, most importantly, it desexualized the life of LGBTQ people and politicized it in terms of rights and dignity. However, this win was short-lived as the infamous Suresh Kumar Koushal vs. Naz Foundation case of 2013, Justice GS Singhvi upheld the validity of section 377. This case effectively recriminalized the lives of LGBTQ Indians.
National Legal Services Authority v. Union of India 2014– As a glimmer of light after the Koushal judgment, this case essentially recriminalized the lives of LGBTQ individuals. Transgender individuals were recognized as citizens of this country for the first time in legal history. In addition, the court established a comprehensive set of recommendations for all states to follow to integrate transgender people into public spaces and give remedies for their marginalization.
Justice (Retd) K S Puttaswamy vs. Union of India 2017 – In this instance, the right to privacy was deemed essential and was extended to include it within the purview of Article 21 of the constitution (right to life and liberty). It recognized the right of privacy for individuals irrespective of their gender and sex, including the LGBTQ people.
Navtej Singh Johar v Union of India 2018 – In a watershed moment, the bench, in this case, struck down section 377 of the constitution. The Supreme Court also ruled that Section 377 of the Indian Constitution breaches Articles 14, 15, 16, and 19 1 (a). It acknowledged that everyone, regardless of gender identity or sexual orientation, has the right to live in dignity, autonomy, and privacy without interference from the state. Justice Indu Malhotra went out of her way to pronounce that ‘History owes an apology to the members of the LGBTQ community and their families for the delay in providing redressal for the “ignominy” and “ostracism” they have faced through the centuries.
Arun Kumar v Inspector General of Registration, Tamil Nadu 2019 – The Madras High Court expanded the definition of brides to include transwomen. Only men and women are included in the definition of marriage under the Hindu Marriage Act of 1955. This decision broadens the definition of women to encompass transgender people who identify as women and wish to marry.
A Step Back: The Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Legislation, 2019, is an act of the Indian Parliament that aims to safeguard the rights of transgender people. However, it hurts the people it aims to protect instead of doing that. The said Act has several flaws. A transgender person must apply to the District Magistrate for a certificate of identity specifying their gender as “transgender,” The district magistrate can evaluate the medical certificate’s ‘correctness,’ according to the Act. This provision runs in the face of the NALSA judgment of the supreme court, which asserted the right of self-determination for transgender persons. This Act does not make any provision for reservation for transgender people but instead adds a whole bureaucratic procedure to be ‘declared’ a transgender and avail the law’s benefits.
Sexual minorities are now more acceptable in public life. Their condition is better now compared to a decade ago. However, is decriminalization of their identity enough? Don’t individuals belonging to the LGBTQ community have the same rights as anyone else? Unless we do not make safeguards in radical consonance with Queer Legal Theory, we can never make India a safe place for sexual minorities. For starters, we need to get rid of the Transgender Persons ‘ Protection Act 2019.
Author(s) Name: Ujjwal Prakash Dixit (Symbiosis Law School, Noida)