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What are the pros and cons of 4 major LGBTQIA Laws in India? How is, being aware of our rights the first-step towards empowerment?
In this article, we will discuss the pros and cons of 4 crucial LGBTQIA Laws in India. Being aware of our rights is the first-step towards empowerment!
I am what I am, so take me as I am.’ – Johann Wolfgang von Goethe
Since we are in the middle of pride month now, we need to be aware of laws that are for us. Would you like to know about the existing queer-friendly laws?
Most of us are already conscious of the decriminalization of Section 377 that took place with the landmark judgment of Navtej Singh Johar v. Union of India. That led to the recognition of Section 377 being discriminative towards queer people.
The queer community thought this judgment would lead to more progressive laws. But all we can notice is radio silence ever since. This article is an attempt to impart some historical, legal and social implications of these LGBTQIA Laws in India, rather it is fair or unfair.
It’s an effort to provide some insight regarding the laws that have been struck down, including the few laws under which queer people can seek remedy. Please stick to reading. It might get long, but I’ve tried to keep it as an interesting read.
This article focuses on every queer-related law along with the LGBTQIA laws in India that have been struck down.
Section 377 of the Indian Penal Code was introduced by the Britishers during colonial rule. Before this section, Indian texts did constitute people engaging in homosexual acts. This was depicted through the form of art in temples(e.g. Khajuraho Temple art) along with literature texts (e.g. Arthashastra). But due to the Britishers and Section 377 came homophobia, which was not as strong as before.
This section came under the subheading of ‘unnatural offences’ drafted by Lord Thomas Babington, giving powers to the Judiciary to punish LGBTQ individuals for 10 years along with a fine. If they were found to be engaged in carnal intercourse that went against the order of nature, they were to be punished under Section 377.
The actual action against Section 377 took its place with the landmark judgment of Navtej Singh Johar v. Union of India. The Supreme Court took the final stance and decriminalized Section 377 of the IPC 1860 because it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination.
It further reasoned that discrimination based on a person’s sexual orientation was violative of the right to equality. And that criminalizing consensual sex between adults of the same-sex in private violates the right to privacy of an individual.
Sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a small amount of the population.
Thus, at present, Section 377 stands decriminalized no person can be penalized under this section based on their sexual orientation.
The amendment in the year 2021 added sub-rule (1D) to Rule 9 of the original Rules, 1977. Providing 1% reservation for transgender persons in civil services posts filled through direct recruitment. These reservations are 1% in each category of posts: General Merit, Scheduled Castes, Scheduled Tribes and in each category among Other Backward Classes.
This reservation applies to posts from any Group (A, B, C or D). This amendment required the addition of the ‘others’ category beside the male and female genders. It also prohibits discrimination by the Appointing Authority against transgender persons in selection.
This Amendment has made Karnataka the first State to provide Horizontal reservations to trans people in public employment. Horizontal reservations mean that reservations will be ensured across all caste categories and one group would not dominate reservations for transgender persons, unlike vertical reservations.
Though this amendment did have a considerable amount of loopholes it was the first amendment done in favour of trans people, thus it was a step taken in the right direction.
The loopholes being it did not provide for relaxations in age, fees, cut-off marks and other standards as it is done normally for other reserved categories.
This judgment for the first time recognized trans people as a separate gender category ‘third gender’ category. This case affirmed the rights of trans people by stating the basic rights given under the Constitution are to be equally applicable to all trans people.
It also gave them a right to gender identity that is apart from male or female by letting them choose their sex in the third gender category. It concluded that non-recognition of their gender identity violates Articles 14,15,16, 19 and 21 of the Constitution of India.
Furthermore, it was supposed to be a progressive judgment that will lead to further actions in the favour of the trans community. But it was not noticed thereafter as trans bill 2019 took its place.
The Trans Bill was a setback from the landmark judgment of NALSA vs Union of India. This bill did prohibit discrimination against transgender persons concerning things like education, employment and the ability to rent or buy property. It also gave transgender persons a ‘right to self-perceived identity’ but there was a very big disadvantage of this bill.
It required trans people to register with the government if they want to be officially recognized as ‘transgender’. Meaning that if a trans person identifies as a trans man or trans woman, and they want to be legally recognized as such. Then they have to submit proof of gender confirmation surgery to the government.
After this bill was passed, trans activist Grace Banu described it as a ‘murder of gender justice’. This bill received nationwide outrage from all the activists of the trans community as it failed to provide equal rights. Showcasing a certificate to garner rights to live itself is an abrogative of the right to personal liberty under the Constitution.
It brings down the bodily autonomy of a person, forcing them to get gender-affirming surgery to be recognized and to gain protection under the law.
It also gave no reservation to the trans community and failed to provide any protection, thus was violative of fundamental rights enshrined upon by the Constitution of India.
If any states try to make a law that prohibits or discriminates against the rights of queer people, then they have a right to seek remedy under this article. As it’s a direct violation of the fundamental right enshrined upon by the Constitution of India and any law thus made will have to be struck down.
This article thus implies that the state cannot wake up one day and decide to deprive a man of his liberty. Doing so would be violative of fundamental rights.
A queer person can seek remedy if the introduction of any law violates the above fundamental rights. Laws in India have not been progressive, are rather quite backward.
Though decriminalization did provide more grounds for debate regarding the existing LGBTQ laws. Our country has still failed to work for the betterment of its queer laws. The regressiveness of the trans bill shows that the state cares little about the representation of trans people.
Pride has been a riot and it always will be one. Until the rights of all the people are not ascertained. With the ongoing arguments regarding same-sex marriages also, it is a long process.
From striking down Section 377 in the year 2018 till now i.e. 2023 there is only brief small changes among the many LGBTQIA Laws in India.
None of us have rights until all of us have rights.
Image source: Photo by Mercedes Mehling on Unsplash, edited on CanvaPro
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UP Boards Topper Prachi Nigam was trolled on social media for her facial hair; our obsession with appearance is harsh on young minds.
Prachi Nigam’s photo has been doing the rounds on social media for the right reasons. Well, scratch that- I wish the above statement were true. This 15-year-old girl should ideally be revelling in her spectacular achievement of scoring a whopping 98.05% and topping her tenth-grade boards. But oddly enough, along with her marks, it’s something else that garners more attention – her facial hair.
While the trolls are driving themselves giddy by mocking this girl who hasn’t even completed her school yet, the ones who are taking her side are going one step ahead – they are sharing her photoshopped pictures, sans the facial hair, looking nothing less than a celebrity with captions saying – “Prachi Nigam, ten years later”.
Doctors have already diagnosed her with PCOD in their comments, based on photographic evidence. While we have names for people shamed for their weight – body shaming, for their skin colour- racism, for their age- age shaming, for being a female- sexism, this category of shaming where one faces criticism for their appearance has no name. With that, it also has zero shame attached to it.
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