PRAGMATICLGBTQ+ ANECDOTE: WHERE LAW BEC INCLUSION

OF LGBTQ+: NEED FOR A SOCAIL REFORMAME AN OBSTACLE

FOR SOCIAL PROGRESS

The plight of homosexuals in India is unthinkable from an

alien perspective. The customary oppressional treatment of
members of the LGBTQ+ community has degraded their
mere existence. The said community even in the modern
paradigm are a persona non grata for the mainstream society
as it is perceived by the majority that “homosexuality is a
disease and outcasting is the cure”.

LGBTQ+ is an Acronym for the diverse groups under it, categorized based on their sexual
orientation. The term comprisesof; Lesbian, Gay, bisexual, transgender, Queer, Questioning,
Intersexual, Pansexual, 2 Spirited, Androgynous and Asexuali. It is now that we are talking
about their rights of which a lot is owed to transgender rights Activists and the Judicial
EstabsliehmentsEstablishments. Transgender among the LGBTQ+ abovesaid community
have the longest existence in Indian diaspora. They have been mentioned in religious texts,
painted on walls and worshipped as well in some cases. Therefore, it becomes significant to
study the depletion of their position in consonance with their status in the ancient times and in
modern era where they were degraded with repressive laws.

Historical Literature On LGBTQ+

It was After the historical verdict of Apex court we acknowledged that, now we are at par
with western countries and adopting their liberal perspective to sexual liberation, which is a
blatant ignorance of India’s own rich historical culture on sexual freedom. Only if one had
visited various ancient caves and embraced those scriptures on the walls that manifests
diversed sexual orientations of people at that time. It is pertinent to notice that historians and
researchers have failed to find account of any law fundamentally banning same sex
relationships which configures a strong case that India has been hosting LGBTQ
communities and embracing the diversity from a long time. The draconian law on banning
same sex relationships is owed to colonial era in Indian History and had “more to do with
Christianity and its belief system” says noted Historian Harbans Mukhia
Conventional Narrative of Homosexuality and its systematic exploitationPrior Status of
LGBTQ In India

Not much has changed after the Historic judgment that rendered the rights of LGBTQ
community, but when analyzed in the light of 158 years of subjection to a barbarous law, its
decriminalization is a step forward. The Former status of LGBTQ+ in India was equivalent to
legally non-existent and when looked at from the spectacles of society, they were treated as a
carrier of contagious disease. Prior status of LGBTQ in India is a pure manifestation of
unacceptance from the society. In the Indian paradigm, a same-sex relationship was
accounted under section 377 as unnatural offence, hence subjected to sanctions amounting to
imprisonment that can extend up to 10 years. Section 292 of IPC is one such provision that
has been used very frequently to suppress gay association in public. It is the inability of law
enforcements to conceive the idea of a relationship between persons of same sex that has
rendered section 292 as the fundamental weapon to exploit the members of LGBTQ+
community.

There are numerous cases where LGBTQ+ stakeholders have been suppressed for their
sexual orientations and their preferences. It had been established by various rulings of the
Indian courts that any relationship falling within the ambit of section 377 signified sexual
perversity. In the case of Fazal Rab vs. State of Bihar, where a man had relationship with a
boy with his consent, the Supreme Court treated this expression of homosexuality as
synonymous to Sexual perversity. Section 377 has acted as primary instrument to intimidate
lesbian couples as well. An article in Times of India brought forth the pain of on such couple
where Tarulata underwent a sex change operation to become Tarun Kumar and later married
her partner Lila to ensure the legal validity and social acceptance of the union. Later a
petition was filed by Lila’s father for annulling the marriage. Gujrat High Court upheld that
the above-solemnized marriage was between two individual of same sex and is liable to be
annulled. Here in this case Hon’ble Gujrat High Court’s narrow interpretation of marriage
which was perfectly laid upon the codified provision of section 377 lead to establish that a
natural sexual intercourse and procreation of children are sine qua non for a marriage.
Hon’ble High court in the course of proceeding indirectly established that a marriage in
society is maneuvered to socially validate sexual intercourse and procreation of children.
In 2004 a parcel containing gay and lesbian magazines for the members who subscribed it to
be distributed in Calcutta was confiscated by custom under the expression of section 292
unfolding obscenity. It was the Suresh Kumar Kaushal Judgment that stirred the entire debate
and inflicted a major setback to the LGBTQ community for the fight that they were into for
recognition and non-discrimination. The Hon’ble Supreme Court termed them as “minuscule
fraction of total population” which seemed to be crushing their efforts for social justice. To
its contrary the fight gained more firepower and it was after 5 more years that a celebrated
judgment was rendered.

Societal Stigma as an impediment to Community advancement

In Indian paradigm, the pseudo cultural awareness of religious and clerical groups remains
the most comprehensive obstruction against the acceptance of sexual freedom. It is not just
the majority group that are Hindu but other diversities have also not added up to resolve the
discrimination faced by the members of LGBTQ community. The toxic integration of the
homophobic catholic beliefs with diversified Indian culture during the colonial era kept the
progress in regard to Indian legal framework on same sex relationships. Whereas, it is
pertinent to point out that the same homophobic approach was casted out by Sexual
Offenders Act, 1967 in Britain, the origin country of this repressive law.

Various surveys throughout years have substantially established the rigid disapproval of of
existence of sexual minorities in India. The Current trend of increasing LGBTQ population
refutes this opinion, however the minuscule support and encouragement from other members
of society is a fact that cannot be overlooked. It is the lack of ample representation and
humane treatment that led to the persecution of sexual minorities in India. It’s been long since
we have been in denial of their existence, crushing their right to recognition under the bridge.
The inability of progressing across the gender orientations and sexual preferences owes a lot
to society’s narrow approach of heterosexualism.

Current Trend around homosexuality in India

It was after the Navtej Singh Johar judgment that people acknowledged the existence of
LGBTQ+ and their claim to equal treatment under article 14 of the constitution. The Hon’ble
Supreme Court in the above case held that Sexual freedom is ensured under the ambit of
article 21 of the constitution and the manner of exercising it is certainly beyond the legitimate
interest of the state.
The transgender protection Act, 2019 vehemently opposes discrimination of transgenders in
the place of employment, health, housing, and education, and other services. The bill also
provides for sympathetic nature towards the said community for the suffering that they have
undergone but has not undermined their entitlement to basic facilities for living a dignified
life. It is the furtherance of the above statute that last month Bihar Government reserved the
seats for transgenders for the post of police constable. However, it is pertinent to mention that
the government and the populous opinion have still sidelined themselves with the legality of
same-sex marriages. The Government’s reluctance on the stance of same-sex Marriage
depicts the legislature’s unwillingness to solidify the debate once and for all, which again
bars the legitimacy of the LGBTQ associations.

Conclusion

Inclusion may not be an element of statehood but is an essential condition for growth in an
ideal state. Diversified voices resonate a million ideas and therefore help to bring out the best
of them. We as a humanity have accepted and embraced every sectarian difference but have
failed to establish a no-discrimination policy based on gender orientations. The apathy of the
transgender community is no more an affair beyond closed doors. Their struggles are not a
myth but bare truth that we fear to acknowledge because it looks us back in the eye and
earmarks our failure to acknowledge them the part of the society we live in, co-habitant of the
same environment we breathe in and the subjects of the same state that we live in.
i
BBC, Middlesbrough Council praised for LGBT acronym change, 2018, available at <https://www.bbc.com/news/uk-
england-tees-46418045#