LGBTQ in India- A controversial question

 LGBTQ in India- A controversial question

  

 **Author- Debpratim Sarkar, Department of Law, University of Calcutta

Introduction

Homosexuality has become a very big topic in India and throughout the world today. In the west we can see that the LGBTQ+  community is now rallying for their rights now more than ever. It is a change in society that we cannot ignore. India’s view on the whole LGBTQ+ rights has been quite complicated that is by law it does not allow homosexuals to do certain sexual acts it is punishable by law on the other hand recent supreme court judgements say otherwise and that the controversial sec-377 is arbitrary in nature and violates the right to liberty and freedom of an individual but still no concrete actions on the issue has been taken.

Geopolitical view

We tend to see that countries today which are democratic and advanced in nature have made homosexuality and other LGBTQ rights legal. Countries like the USA made law allowing homosexuality in the year 2015 and ever since many European countries have followed this decision by legalizing gay marriage and making laws to protect the rights of LGBTQ individuals. We also see on the other hand that countries with less democracy and rather strict regimes and countries that are overall developing or underdeveloped in nature are banning homosexuality and making punishments for such acts even more stricter by law. In 2023 Uganda an African country banned homosexuality in its country and made homosexuality punishable by death. So there are clearly varied opinions on the topic and everyone is not agreeing on one solution.

Law in India

Sec-377 of the Indian Penal Code mentions homosexuality. It is mentioned in section 377 that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”. This section of IPC is made to punish anything that is considered out of normal or bad in the eyes of society. It is hard to describe what is normal or against the order of nature because its interpretation is a vague one and people can create their own sense and say an act is against the order of nature. So section 377 itself is a little nonsensical and stands on fragile ground. IPC itself was created in the year 1860, back in the British era, by the British with little insights of the then Indians. It has been a source of controversy since then, as India is a very secular, free, and equal country considering its constitution which has articles like sec 14-18 which ensure equality to all individuals, and articles- 19-22 which ensures freedom to all individuals, it seems unjustified to have a section 377 which is a direct collusion with the right to equality, dignity, expression, and liberty.
                                                                                                          

In India the old class of people who are with old ideologies generally do not accept change in the society they want society to be as it was when they were young, it is the same with their view towards LGBTQ+ people they don’t want any change in gender or people from same gender marrying each other; whereas the young people in India are more susceptible to change and are ready accept such change like homosexuality. India also has a view of religion on this topic as well, religions like Islam, Christianity, and other orthodox religions are strictly against homosexuality as the religion doesn’t allow it, though it is vague in nature in the religious text itself. So in India, we see that there is already opposition to the idea of LGBTQ, and the implementation of a homosexual friendly law or abolishment of the section-377 of IPC will see a big opposition in the country, and violence is ready to happen as there is direct collusion of ideologies of opposing sides in India.

Court’s view

In 2013, the Supreme Court overturned the Delhi High Court’s verdict and upheld the validity of Section 377. The Court said that it was not for the judiciary to decide on changing a law, but for the legislature to do so. The legislature is responsible for making laws in our country and so they should decide whether or not a law is violative of fundamental rights, whether or not it should be active or be taken down. Making laws regarding LGBTQ is also very controversial because of the earlier specified reasons. In 2018 Supreme Court decided that section 377 is directly violative of the rights of citizens affecting the right to liberty, right to freedom, right to equality, and other rights. So sec-377 is now only made applicable to sexual acts against children, bestiality, etc. Also, there is a lack of recognition of same sex marriage or civil unions, which deprives LGBTQ+ partners of any type of recognition and legal benefits and protections. The court also affirmed the right of transgender people to self-identify their gender and access legal recognition

The present day situation

In the present day, more and more people are coming out and revealing themselves that they are a part of LGBTQ+ community and slowly the veil of fear and secret is coming out in the public. The LGBTQ+ people are advocating for their rights and the legal activism is taking place, the homosexuals demand is being recognized by the government, law, and people of the country so they can also live normal lives like others without hiding their true selves. There also has been huge scale support to these people from celebrities and big influential people who support their cause. But India is a country that is quite a hybrid of forward and backward thinking i.e. both of them exist, people are both in support and against the issue i.e. there is no clear decision to be made without clashing of ideologies. The Lok Sabha members and Rajya Sabha members are responsible for making laws whether they would agree to make LGBTQ a recognized part of the society is up to them. The religious people of the country should also be respected in their view because it is one that hurts their feelings. Although legalizing homosexuality does not mean that LGBTQ+ people are fully accepted or protected in India. There are still many challenges and barriers that LGBTQ+ people face in terms of social stigma, discrimination, harassment, violence, family pressure, lack of education, health care, employment, and housing opportunities. There are also no legal provisions for same-sex marriage or civil unions, adoption by same-sex couples, or anti-discrimination laws based on sexual orientation or gender identity.

Conclusion

LGBTQ+ in India and its development is a controversial topic because it is one that involves many different perspectives, opinions, beliefs, values, and interests. It is not a simple or straightforward question to answer. It is a question that requires dialogue, understanding, respect, empathy, and compassion. It is a question that affects the lives of millions of people who deserve to be seen, heard, and loved for who they are. While also keeping in mind the view of society and others who are against it. India is a country of its own and it is the Indian’s decision what they want to do this issue of recognition and protection or no recognition all depends on what the lawmakers judiciary and people of the society decide to do. LGBTQ in India is certainly a developing topic and one to keep an eye on.