This past month, thousands of LGBTQIA+ members in India took to the streets in celebration of the New Delhi pride parade. They carried balloons, played music, and carried rainbow flags to rejoice in the diversification of sexual identity. For the past few years, the fight for LGBTQIA+ Rights in India has been a burgeoning movement and has grown to a point where real change is occurring and policies and protests are starting to change the climate of LGBTQIA+ rights in India. In fact, just last year, a Supreme Court Case in India legalized homosexual relations, overturning a colonial-era rule that had shackled the queer community for 157 years.
A group of people at the Delhi Pride Parade march in celebration of gay rights.
A History of Court Rulings
Prior to the British colonization of India, homosexuality was accepted within the reaches of society. However, during the eighteenth century, the British passed Section 377 of the Indian Penal Code, which stated that same-sex relations were forbidden. For years, it ensured that LGBTQIA+ community members would be continuously placed under severely unequal treatment by criminalizing same-sex relations. Members of the queer community faced constant blackmail and violence at the hands of society and Indian authorities. Oftentimes, as a result of Section 377, sexual health for queer constituents was ignored, resulting in the deaths of thousands. The queer community was never treated with liberty and equality, two fundamental rights designated by the Indian Consitution to its constituents.
157 years later, Section 377 was challenged in the landmark case, Navtej Singh Johar v Union of India, in the Indian Supreme Court. The case dates back to 2001, when the Naz Foundation of India, a non-governmental organization that works to combat the issues of HIV/AIDs, as well as advocate for the queer community and female empowerment, challenged the Delhi High Court about whether or not Section 377 was constitutional.
In 2004, the court dismissed the case made by the Naz Foundation, stating that there was no valid reason behind the call to legalize homosexual relations. The Naz Foundation filed another petition stating that the legalization of LGBT relations was within the public interest. In 2009, the Delhi High Court recognized the unconstitutionality of Section 377 on the basis that it violates the core rights to equality designated towards the people of India. However, the Supreme Court of India argued that unconstitutionality does not apply to the bill because it only takes away the right to have relations. This was an uncompromising detriment towards the queer community, and it created a widespread call to action to fight for LGBTQIA+ rights.
As a result of the backlash, the Supreme Court agreed to hear pleas from petitioners advocating to abolish Section 377 and eventually ruled that homosexual relations were legal. In the previous year, the Supreme Court ruled on the right to privacy in a different case, stating that privacy was a fundamental right. After this ruling, the Supreme Court used the right to privacy to legalize gay sexual relations, stating that sexual orientation “is an essential component of identity and the rights of LGBTQ+ persons are ‘real rights’ founded on constitutional doctrine.” On September 6th, 2018, the Indian Supreme Court in the case of Navtej Singh Johar v Union of India, decriminalized homosexual relations in the name of sexual privacy.
Two Faces of Change
Two of the original petitioners who plead in favor of overturning Section 377, Menaka Guruswamy and Arundhati Katju, became the forefront of the Supreme Court Case. They had originally lost their case in 2013 when the Supreme Court overturned the Delhi case. From then on, the two women fought until they were able to gain liberation for the LGBTQIA+ community.
After Navtej Singh Johar v Union of India had been settled, the Supreme Court of India stated that they would take further steps to combat inequalities that thousands of LGBTQIA+ constituents face on a daily basis. However, there is still much work to be done. Even today, there are many barriers placed toward same-sex marriage law. Harassment within schools and professional spaces continues to be an issue for the millions of India’s LGBTQIA+ members. Oftentimes, people are forced to leave school or work in order to avoid harassment from peers and even authority figures, sacrificing their education and work opportunities. Furthermore, there are many issues for the transgender community in India. A study by the International Court of Justice found that "there are issues in schools with gender-specific uniforms and lack of access to bathrooms." Earlier this year, India passed a new bill entitled “Transgender Persons (Protection of Rights) Bill, 2019.” It states that a transgender individual “Shall have a right to self-percieved gender identity.” The issue with this legislation? It makes the definition of when a person can get their gender legally changed unclear. They could either get their gender legally changed when they please or only after they undergo certain surgical procedures. If it is the latter, the main issue is that it could require that a transgender person provide proof, which ultimately violates the dignity and privacy of transgender people across the nation of India. Additionally, if they are unable to afford this surgery, they will be unable to get their gender legally changed. A lot of the benefits that are given to cisgender individuals are not provided to transgendered individuals, including job quotas. Ultimately, this forces them to lead lives in sex work, a dangerous business that can result in the contraction of sexually transmitted diseases.
Looking to The Future
Although India is making its first steps to sexual equality, it still has a long way to go. There are many barriers and institutional systems that must be broken before any real change is made within the Indian subcontinent. Biases must be taken away, stigmas must be dissipated. While Navtej Singh Johar v Union of India was the catalyst for a newfound movement, the nation has to take continual effort towards an equal society in order to point in a direction forward.