Article

Public Policy Discourse Indian~

"'ala,
and Sexual Minorities: 68(~
Reprlnulnd
Balancing Democratic ln.sappub.com/Jou T a l l - ~ ~ ~
DOI: IO.lln/0019554~
Aspirations, Political Journais. ...,~
Expediency and Moral
Rights

Sangita Dhal 1

Abstract
LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, lntersex and asexua~ 11
evolving Issue which needs to be debated in the legislatures and political spa -
general to deconstruct and redefine the narratives which have been lnflu:
by the dominant sociocultural stereotypes. This is important In the context~
the changing scenario worldwide involving the LGBTQIA+ community Wh
assertions are being witnessed to reclaim the democratic space and civil rl&hts"-
give shape to a more egalitarian and lnclusive·civic culture. This article hlghll~
the changing character of the public discourse on LGBTQIA+ community In lndQ
in recent times and its impact on the judiciary and the political system. In the
light of the recent Supreme Court landmark verdict of decriminalising Section
377 of Indian Penal Code (IPC), the present article seeks to examine a Yast
array of possibilities and challenges before the LGBTQIA+ community. The legal
safeguards guaranteed through judicial pronouncements by the Supreme Court
(6 September 2018), however, do not ensure the creation of an enabling social
environment to accept homosexuality as a 'normal behaviour'. Hence, unless
corresponding corrective measures are taken to bring about social reforms for
change of perception towards the homosexuality community, no amount of Jud~
cial intervention will guarantee their inclusion in the mainstream.

Keywords
Identity, sexual minorities, discrimination, diversity, rights, justice

'I am what I am, so take me as I am'.

-Johann Wolfgang von Goeb

1
Department of Political Science, Kalindi College, University of Delhl, India.

Corresponding author:
Sangita Dhal, Associate Professor, Department of Polltlcal Science, Kallndl Col191e, University d
Deihl, Delhi 110009, lndla.
E-mails: sangltad I S02@gmall.com: sanglt.adhal@kallndl.du.ac.ln
Dhal 35

Introduction

Tw~ decades into the 21st century, democracy as an ideal form of organising
social and political lives of people across the world has witnessed increasing
acceptance and steady growth. Diverse issues concern diverse people with differ-
e_n~ demands fo~ individual and group rights characterising their indigenous iden-
tities and now increasingly finding space in public discourses. This is a sign of
~ture demo~racy accommodating pluralist ambitions of people thereby turning
into _sub~tantive democracy while starting these much-delayed conversations.
Pubhc disc~urse and sexual minority is a case in point, which draws attention of
the academia for the sheer potential it has to turn ordinary democracies into sub-
stant!ve d~mocracies. When public discourse gets this momentum and impacts
pubhc po~1cy and legislative initiatives, democracy at large gets strengthened and
democratic ethos becomes a darling point for citizens to engage in political dia-
logue as a collective. Sexual minorities and their concealed identity remained
outside public discourse for a very long time, before they came out in the open
recently after decades of self-assertion and growing consciousness of their sexual-
ity that took shape in political movements in different parts of the world.
The 21st-century has opened several windows of opportunity in different
spheres of life. Apart from economic and political spheres of the public domain,
individuals' private sphere is now becoming the new domain of self-assertion
where sexual preferences, marital decisions, professional career choice, live-in
relationships and, above all, financial independence are being treated as non-
negotiable democratic rights of individuals belonging to all genders. These
demands are articulated as expressions of democratic aspirations of hitherto
unrecognised and marginalised communities such as sexual minorities.
The perennial conflict between the mainstream society and these minorities
is to be contextualised in the larger framework of patriarchal male-dominated
society. While decoding the complex nature of such society, it is revealed that
democratisation process in the pos,-colonial states lacked depth to effectively
bring about transformation in the society through progressive legislation and
atfmnative actions even after decades of Independence. Hence, democratic aspi-
rations of such minority groups began to get voice and expression today through
new social movements, spearheaded by civil rights activists. This article analy-
ses that the perception of 'sexual orientation' in the social space predominantly
revolves around the heteronormative discourse in the social, cultural and civil
spheres. It also deals with the changing character of the public discourse on
lesbian, gay, bisexual, transgender, queer and intersex (LGBTQIA+) community
in India in recent times and its impact on the judiciary and the political system.
Ahistorical overview of the LGBTQIA+ community in India and their journey
of trials and tribulations through the long legal battles coupled with the prevail-
ing sociocultural stigma shall be examined to understand the role of the state and
its responses in tenns of public policy towards the sexual minorities. In the light
of the recent Supreme Court landmark verdict of decriminalising Section 377
of Indian Penal Code (IPC) (dealing with 'unnatural offences' pertaining carnal
~tercourse against the order of nature), the present article seeks t~ examine a
36 Indian Journal of Pubr,c Ad m/ ~ &A, '

+ community. ,
~ast array ofpossibilities and challenges before the LGBTQ~ l\ii
their ciVit ri
mcludcs an alttmpt to explore the prospects of fw1hc:r_advancm~
ed public Po~
and demands which in tum will facilitate the formulation of desir
i~n and status hi~
and_ legislative measures lo legitimise and le~ e their posit
e character of tbt ,
society. The article shaJJ also attempt to examine the conservativ
sociocultural fabric of the Indian society, which denied the LOB
TQIA+ S
deprived thctn
nity their rightful place and democratic space in the polity and Of
their legitimate rights for asserting their identity.
~f trends"'~
In a rapidly globalising world, no nation ~un e to the ~ ty tha t~
n digni
are characterising the new waves ofdemocra~c nghts and huma
such devel opments across the .
the lmger question ofhwnan rights. It is observed that
~~rm of ~~
world have fmmd reso~ce political decision-making in ~e
nties. In thi s~
public policy towards mitigating the concerns ofthe sexual mmo
ds LGBTQ~;
it is pertinent to know the mindset of the popcymakers to~ar
community, which is by and large a reflection of a conservativ
sociocultural reality. ~or the effective exercis~ of their right
s with
e and patriarthal I
free choice, the
the SOCiety to
I
LGBTQIA+ commumty are constantly engagmg themselve
+ COIDIDUJlitiea
explore their own identity. Suppressed for a long time, the LGBTQIA
of life, not only in
in India have rightly demanded their due share in all spheres
c sector and private
employment but also in education and services both in the publi
s of Indian Sexuai
domain. Queer organisations, such as People for the Right
n, through their
Minorities [PRISM], Hamsafar Trust and Naz Foundatio
l mino rities but also
comprehensive efforts catalyse positive change not just for sexua
e society as a whole,
for laying the foundation of an inclusive, diverse and progressiv

Politics of Morality and Democratic Rights

of the citizens,
While negotiating with the growing demands for democratic rights
the one hand, the
the state and its agencies came across several dilemmas. On
well-being, social
state, apart from its primary responsibility to provide economic
sovereignty, is also
security and safeguarding territorial integrity and national
promoting demo-
required to strengthen the democratic credentials of the state by
isation is a critical
cratic cultures in every sphere of civic engagement. Democrat
s, principles and
ongoing process, which helps in deepening democratic value
and entitlements
goals to achieve a truly egalitarian society with equitable rights
onts several road-
for all. However, in the pursuit of this objective, the state confr
stereotypes. Sexual
blocks, mostly coming from orthodox social and cultural
that is coloured
minorities, for instance, have always been a victim of perception
conservative main•
by the dominant notions ofmasculinity versus femininity. The
or social outcasts
stream societal norms segregate such people as social deviants
a scenario, the state
who do not enjoy any legitimate status in the society. In such
in the horns of a
which is an extension of the same patriarchal society finds itself
s of orthodoxy
dilemma. Hence, it has to navigate through the troubled water
versus modernity.
g stringent con·
In the era of globalisation, the new liberal states are puttin
and commercial
ditions before the participating nations in the global economic
 37
Dhal·
• • tin ations are. require d
activities at different multilateral levels. The parttcipa g n fr edom
to improve their human rights record, inclusive governance,• democr atic de.
1 •
sti tuti0 ns an mter-
din
and so on. Thus, there is external pressure from the globa m .
national civil society to improve democratic credentials of the state by c~nce. . g
to the demands of minority groups like transgender and other sexual nunonttes.
On the other hand, there is the domestic pressure not to concede to these demands
at the cost of age-old traditions, customs and cultural values of the society•. These
inalienable traits of a traditional society raise important questions of morahty and
ethical conduct of both individuals as well as the state. Individuals are expected
not to exhibit deviant behaviour and are therefore bound by certain model code
of conduct approved by the society, whereas the state is supposed to respect _the
age-old traditions and customs and any deviation from· this amounts to unethical
trespassing into society's norms and rules (for instance, the significance of Khap
Panchayats in the sociopolitical landscape of Haryana and Sabrimala Temple
entry issue with regard to women in Kerala).

Tracing the Trajectory of Alternative Sexuality in

Ancient Times Normative theory of society

Historically, there have been dominant interpretations that have been used to per-
petuate oppressive systems against the sexual minorities as a result of which they
are often rejected and alienated by many religious leaders and religious communi-
ties. It was assumed that individual must exercise control over 'deviant behav-
iour' and succumb to the nonnative idea of family. Any idea that did not fit in the
normal social category offamily space would be relegated to the periphery thereby
creating a binary between the nonnal and the deviant human behaviour. This
binary perception generated counter consciousness among the homosexual class
as it interfered with their natural rights of life and liberty. This awareness resulted
in group consciousness about the state's definition of unnatural behaviour con-
fronting with individual's natural rights.
The non-heterononnative gender and sexuality perceptions have been used in
the Hindu, Buddhist and Jain literature. Scholars and writers like Devdutt Pattanaik
(2018) have pointed to the temple art, scriptures and rituals that have used queer
metaphors to explain metaphysical ideas. Professor Faizan Mustafa (2018) has
rightly asserted that the Judeo-Christian morality had a strong impact on the formu-
lation of the colonial state laws in India. Islam also considers homosexuality as a
sin. Ancient Indian culture and mythology were more liberal as it has been evident
from the character of Shikhandi in the Mahabharata, and Lord Vishnu's female
incarnation as Mohini. Scriptures such as Sushruta Samhita and Chara/ca Samhita
allude to homosexual men and women. Some of the famous ancient temples in
India such as Khajuraho (Madhya Pradesh) and Sun Temple at Konark (Odisha)
also have erotic paintings and sculptures that display qomosexual images which
proves the prevalence of alternative sexuality and its acceptance in ancient times.
In the Victorian Age the state exercised the power on controlling sexuality
where ethics was converted into political issue with the underlying idea of control
 38 Indian Journal
= - - - - - - - - - - - - - - - -of-Public Administration
---.:.~ 6
by the state on every aspect of individual's life. The narrative centred around
theme of 'personal is political', where the state controlled the personal choic !ht
individuals [the concept of 'govemmentality', developed by Michel Fouca~Of
In The History of Sexuality (Vol. I), Michel Foucault's (2008) subtle distincti t].
between ethics and morality encouraged queer activists to perceive ethics as :
undoing of social practices. c
Although homosexuality came to be recognised an abnormal condition, th
practice ofwhich was considered illegal and ~suited m~e sev~t ofP~slun ~
it also came to acquire a 'voice' that it was hith~ dented. '111!8 1s a classic illUstra,
tion of Foucault's conceptualisation of the relation between discourse and counter,
discourse. He says the cause for homosexuality used the very tools of discoUrse
which were employed to suppress it. The binary between the normal and ~e deviant
generated a counter consciousness ~ong the homosex~ class an~ thett ~otion of
natural rights. What the state is defin1ng as 1mnatural act ts actually mterfenng With
the exercise of individual's natural rights. Many scholars have noted that most of
the texts which have achieved canonical status, do not reflect the voices of wornen
or the sexual minorities rather they are the compositions of elite male members Who
had access to learning and leisure and therefore represent a biased and prejudiced
view expressing the diverse Indian culture and its social norms. (Meera Baindur, an
activist and inter-faith researcher from Bangalore, cited in Georges [2019]). Thus
the correct interpretation of religious texts is necessary to address the pertinen;
problem of discrimination which affects the LGBTQIA+ lives.

Social Perception Towards Sexual Minorities

A major outcome of the debates on the rights of sexual minorities is a natural
col~usion between poli~~s of mortality propounded by orthodox patriarchal
social structures and politics of entitlements espoused by the radical thinkers and
activists•. However, th~ In~an society and its political system have undergone a
pr~ess of transformation smce the advent of neo-liberal era in the last 30 years.
!his ~as paved the .w_ay f~r more progressive and pro-active public discourse
mvolvmg the state, c1V1l !oc1ety and such social groups who are demanding greater
autonomy, more power m the form of legal rights and opportuniti" + d •
them thr gh bli ..
ou pu c po1tc1es. ~e hist~ri~ landmark of the SupremeesCourt crea..e 1or .
judge-
m~t, September 2018, regarding decnm1nalisation of Section 377 has witnessed
ID!Xed response. There are conservative elements in the traditi al vill d
towns who continue to view alte ti d on ages an
discriminate them (Lama, 2020ma ve ~en er and sexuality as a social stigma and
barrier that prevents open ace >·:cc: m urban sp~eres, there is a psychological
progressive legislations. But Je t to th~se ~cal changes effected through
minorities and shape their perc ;en ~egati~e attitude continues towards sexual
~derlines that despite legal rec~ 1~: ~ pubhc sph~es. Thus, the above analysis
Vital rol~ for the peaceful existen:1 0 and protection, social acceptance plays a
In this context it i·s un· of the homosexual communitu
• di • ' portant to und tand th "J.
m vtdual rights/group rights • d e relevance of the discourse OJ1
m a emocratic constitutional and rule-based systellL
 Dhal 39
Naz Foundation,1 an NGO that works on lilV/AID
S and sexual hea lth ,~~ for
the sexual rights of the minorities and worked tirel
essly with the gay commumties_to
change the mindset that homosexuality is not a crim
e. The entire queer co~ um ty
mobilised community-based support groups in big
cities and small to ~ to m~ e
the visibility and identity of the sexual minorities,
decrease the negative perception
and make them socially acceptable. The gay com
munity aspires for visibility and
acceptance and maintains linkages with the med
ia, women's groups, liberal, left-
leaning students unions, workers' groups and the
religious minority groups. Thus,
sexual minorities often confront the deeply unequal
world with the lurking fear of
social stigma despite the legal fights and the progress
ive laws (Lloyd, 2019).

History of Queer Activism in India

The emergence of gay and lesbian politics in Indi
a in the late l 980s and 1990s
coincided with liberalisation of India's economy
in 1991 and the global fight
against HIV/AIDS. Gay rights movement gained
momentum in the 1990s because
of their vulnerability to the fatal disease HIV/
AIDS, and this became a huge
concern. Queer activism is regarded as an ethical
rethinking and practice redefin-
ing human relationships beyond identity and mor
ality. The articulation of ethical
framework of queer activism rests on three prem
ises:
• Critical reflection of nonns by thinking different
ly
• Inventing unimaginable possibilities/discover
new possibilities
• Create new relationships

Much of the present activism of quee~ politics

has come to be preoccupied
with questions of morality, ethics, culture, identity,
social norms and dignity and
symbolic representation. The lived experience
inspired the queer activists to
organise collectively their struggle over identity
fonnation, collaborate and coor-
dinate for radical social action. SANGINI and PRI
SM support groups for political
and social engagement united for queer activism
and are actively engaged with
LGBTQIA+ issues and their relationship with com
munity, identity, alliance and
visibility. The work ofNaisargi Dave, Queer Acti
vism in India (2012), highlights
the shifting of focus on women's resistance to hege
monic social norms by recov-
ering hitherto public spaces and rediscovering a
new empowered narrative based
on small voices against the everyday acts of dom
ination and subordination that
are revealed in the moral and institutional apparatu
s.
Given that a large majority of sexual minorities
are poor, the policy initiative
should primarily focus on their integration with
the society, securing their liveli-
hoods which will strengthen their economic cond
ition. For this to happen, India
needs a proactive state, which envisages a subs
tantive democracy, an inclusive
society and a culture that provides dignity to ever
yone which in the present times
seems to be a difficult mission. Thus, the road to
victory of the queer movement
was ~aved b~ the queer community's spectacular
success in raising and sustaining
public consciousness through creating spaces for
engagement across the globe (Narrain, 2003). cultural, social and intellectual
40 Indian Journal of Public Admlnlrtrovo

iiii
r,::::;;;iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii~==;~;:::==~iiiiiiiiiii

28 countrit1.,
124 countries have 24 countrfes allow recogni'>P
stopped penalising same-sex couples to partner<;hip ,Hllonp
homosexuality marry same ~l'X coupl, ... •

Figure I. Achievements of LGBTQIA+ Movement Worldwide.

Source: Annual Report of International LGBTQIA+ Association, 2017.

LGBTQIA+ challenge the notion that humans are inbuilt with heterononnatiy.
ity and that homosexuality is a mental illness that is perceived as a deviance to
be corrected by the state and ~ts institutions. Th~se n~tions.as~ume that all things
natural are superior and all things unnatural are infenor. Bntain had sodomy laws
in all their colonies; India was one of the few former colonies that had the anacb.
ronistic law (Section 377 of IPC). In July 1990, Hong Kong decriminalised adult
consensual homosexual acts. In fact, India, Pakistan, Malaysia and Singapore are
the only Asian fonner colonies that still have sodomy laws. Countries such as the
USA and Canada took the first step with decriminalisation and much later recog.
nised the right to remarry (refer Figure 1).

Section 377 of IPC

Drafted in 1833, IPC in many respects is archaic and absurd; Section 377 oflPC
is obsolete and must be struck down as being unconstitutional and violation of
Article 14 on the fundamental right to equality guaranteed to every citizen of
t
India. Section 377 makes it abundantly clear that homosexual identity/devian
sexual behaviour per se is not an offence, while an act of sodomy (whether homo
or hetero) can however be classified as a crime under Section 377. Criminalising
sodomy as unnatural offence, Section 377 held that consensual adult homosexual
acts cannot be clubbed together with forced sodomy. Section 377 of the IPC,
based on deep-rooted gender stereotypes, has a traumatic impact on the lives
of
·
the LQBTQIA+ community members. Further, they face the challenge ofrecon
s
ciling their lifestyle choice and sexual desires with customary practices, religiou
beliefs and public morality which argue in favour of Section 377. In Kharag Singh
v. State of Uttar Pradesh case (1962), the Supreme Court of India held that the
right to privacy is part and parcel of the fundamental right to life and libertY
 7

Dhol 41

(Article 21 ): Right to life includes right to live with human dignity and all that
goes along with it. In this regard, Section 377 of IPC is a violation ofArticle 14 of
the .c~nsti~tion since it encourages discrimination against person purely based on
therr deviant sexual behaviour'. The idea that sexual relations must take place
only wi~ the prescribed sexual format shows bias, ignorance and lack of toler-
ance to d1.fferent sexual orientations and different patterns of loving.
In.A~nl 1994, AIDS Bhedbhav VidrohaAndolan (ABVA) filed a petition in the
Delhi High Court demanding for the end of Section 377 ofIPC which criminalises
homosexuality and encourages oppression of the sexual minorities. The underly-
in~ ~e~e o~ the judgement passed by the Delhi High Court in 2009 was that the
crurunahsation of homosexuality was against the principles of liberty, equality
and non-discrimination guaranteed by the Constitution. Both the criminalisation
and legal invisibility of such relations affect the rights of sexual minorities to
equal treatment and opportunities in areas such as employment, housing, public
services and health benefits.
For the resilient LGBTQIA+ members, they hope for a social change by invok-
ing proactive changes in the society and its institutions which puts forth their
views in the right perspective through a multi-pronged approach which includes
the fallowing:
• Situating LGBTQIA+ community in the sociocultural domain
• Mapping the contours of state initiative towards LGBTQIA+ community
rights
• Issue of broader human rights and justice for the sexual minority groups
• Abstract laws are inefficient to reflect the lived experiences of human beings
The government and the judiciary also need to look at how the current laws impact
the lives of the LGBTQIA+ community. By assimilating LBTQI A+ community
through inclusion and meaningful participation in the various socio-economic and
political forums and platforms, the larger goals of promoting composite culture
shall be achieved and a diverse and vibrant cultural fabric of the nation will be
created. Therefore, there is a need to reshape the political landscape with more
assertions from the hitherto marginalised communities like LGBTQIA+ which
will ensure a true democratic inclusive and a just society.
Sexual minorities along with other disadvantaged groups such as Scheduled
Castes, Scheduled Tribes, Other Backward Classes, religious minorities, disabled
groups and women demand for an inclusive development agenda of the state to
enable them to share the benefit of economic growth and to participate in the
functioning of the state institutions. Despite the diversity within this group, they
come together, as their experiences are shaped by social exclusion from a hostile
social environment and cultural milieu (Verma, 2012).

Transgender: Deprived and Exploited Community

Another unique sexual minority. group. is the trans~ender communio/, w~ch has
existed since ancient and medieval times as evident from the histoncal and
 ,
-42 Indian JoumaI of Public Administration 68(1J

archaeological sites. These transgender communities ~ved under the roYal

patronage, performing social functions, rituals during mamages an~ other auspi.
cious occasions. Nevertheless, they have survived and continued With their iden-
tity through ages despite social and cultural segre~ation. Having ~p~ati~n of
490,000 (Census 2011 ), transgender people in India are the most vtstbly mvisiblc
population in the country. Since the late 19th century, they have been pushed to
the margins of the society and have lost the sociocultural position they once
enjoyed. They are subject to extreme forms of social ostracisation and are vuincr.
able to gender-based violence. As a direct result of their acute ill-treatment llld
exploitation, they also remain susceptible to fatal communicable diseases such as
1

HIV/AIDS. Despite laws, policies and their implementation, the community I

continues to remain quite marginalised and highly vulnerable. J

According to a recent UNAIDS (2017) report, the HIV prevalence among

the transgender is 3.1 %, which is the second highest among all the communi..
ties in the country (Quraishi, 2018). There is increasing number of activists
that have continued to work at the grassroots for the welfare of the conunu..
nity and managed to bring society's attention to its socio-economic depriva..
tion. There are numerous examples of higher educational institutions providing
quota and giving special discretionary seats to the transgender persons, but the
takers remain few and far between. For instance, Apsara Reddy was recently
appointed as the national general secretary of the All India Mahila Wing of the
Indian National Congress Party on January 2019. She is the first transgender to
have been given this prestigious assignment and can use this opportunity to play
a meaningful role in the policymaking process that affects women, children and
transgender individuals.

Transformative Constitutional Order: The Idea of

Inclusiveness-National Legal Services Authority
(NALSA) Judgement, 2014
major step !o~ards gender equality and 'inclusiveness' which has a significant
im~act on nulhons of people who face discrimination in India's conservative
society w~ rendered by the landmark Supreme Court judgement in National
Legal Services Authority v. Union of India (2014) which declared transgender
people to be a 'third g~nder' that allowed transgendered people to identify them-
selv~s as such on official documents. Justice K.S. Radhakrishnan, who headed the
two-Judg~ bench, ~bset:'ed that 'recognition of transgender as a third gender is
not a s~ci~l or medical issue but a human rights issue'. Recently, India's Election
Co1;11111is~ion for ~e first time allowed a third gender choice, 'other' on voter
registr~tton forms m2009•. The changes were incorporated in the recent'elections,
wherem 28,000 voters registered themselves in the third gend t 2 On1
year after th 2014 NALS er ca egory. ya
e A verdict, it was encouraging to see India's first
transg~nder mayor Madhu Kinnar of Raigarh district Chh tti h l ted to
office m 2015. Thus, the decision of Election C0 .' . a sgar ' e ec .
•
enVU"onment and went a long way in opening the mrruss1on
ti' ,
created an enabling
tark
1• • f d •
rea ities o a epnved and exploited community. na on s eyes towards the s
Dhal

Role of the State and Its Institutions

Here it is important to examine the role of the executive, including the bureau-
cracy, at the policymaking and implementation level, Parliament responsible for
progressive legislation and the judiciary to provide the much-needed safeguards
for the smooth implementation of the rights of the sexual minorities.
Delhi High Court announced the path-breaking verdict in 2009 of decriminal-
ising Section 377 of IPC pointing to the lifestyle choice of the sexual minorities
ruled that the law did not apply to consenting adults. When the Supreme Court
re-~li sed homosexuality in 2013 by reinstating Section 377 of IPC, it was
a maJor setback for the queer community. This judgement has encouraged efforts
to organise inter-faith meetings on human sexuality and workshops are held to
facilitate conversations on faith and sexuality.
A historic ruling favouring 'individual privacy' was observed in the case of
Puttaswamy v. Union ofIndia (2017) which termed 'sexual orientation' an essen-
tial attribute of identity and privacy. Therefore, different sexual orientation must
be protected as this lies at the heart of the fundamental rights as envisaged by
the Constitution of India under Articles 14 (equal protection of law), Article 15
(non-discrimination), Article 19(1a) (freedom of expression) and Article 21 (life
and personal liberty). This perception is also reflected in the landmark Supreme
Court judgement in July 2018, when a five-judge bench heard the review petition
demanding decriminalisation of same sex relationships. In Navtej Johar v. Union
of India, Constitution bench of the Supreme Court resurrected Naz Foundation
and affmned that the LGBTQIA+ community was entitled to equal rights under
the Indian Constitution. •
At the heart of the Supreme Court's path-breaking 2018 judgement was the idea
of 'constitutional morality'. This notion embraces the idea of constitutional moral-
ity vis-a-vis social morality and extends the dignity to the sexual minorities which
they have been denied (Ratnam, 2018 ). The challenge lies in how to use the tool
of constitutional morality as a transformative power to ensure justice, and
equality is guaranteed on the basis of sexual orientation and group identity.
This remarkable judgement serves as a reminder that rights ensure inclusiveness,
equality and freedom and form the core fundamental values of India (Mehra, 2018).
The historic 2018 verdict, highlighting the idea of constitutional moral-
ity, affirmed that the LGBTQIA+ community was entitled to equal rights
under our Constitution (Bhatia, 2018). This judgement links the issue of sexual
freedom with multi-cultural rights, the protection of which is the hallmark of a
constitutional democracy. Sexual minorities are constantly engaging themselves
with the society to find their own identity and make it more readily acceptable to
the society. Campaign for Lesbian Rights is a group of individuals and organisa-
tions who strongly feel that discrimination based on sexual orientation/identity is
a violation of the basic human rights. For a queer woman in India, sexuality is just
one of the many factors that engulfed in the culture of silence. It may sometimes
get more complex for a minority community queer woman. That is why while gay
groups view their rights through the prism of sexuality, the queer women on the
other hand ally with similar groups fighting for rights of women, Muslims, dalits
and other minority community to strengthen their cause (Dave, 2012).
 44 Indian Journal ofPublic Admln~ '-~ '.

Alternative Sexualltles and Polley Framework

One of the major points of debate and concern in recent_tim~s bas been the'- :
stream culture or community space that queer, ~alised sexualities 1'..·- ·i

occupied. Alternative sexualities and families cannot slDlply be defined in It~

to the 'other' or the mainstream but must be seen as ways to seek or
relationships based on particular perspectives. They shoul~ be seen_~ intS I
ing and moving beyond the present structure rather than sunply resisting the Qc)r,
mative models of relationships. The judges in 1?e Supreme Cour_t Verdict in 2011
have unanimously said that ~e -~edo°! of ~ho1~e cannot be subJect to maj<>rhar,
ian perceptions. Respect for mdivtduals choice 1s the essence of true hl>erty Ulldet
the law. The court struck down Section·377 on a number of grounds that~
to matters of dignity, identity, health and privacy. It has ruled ~at consensuai ._
between adults in private space is neither nor contagious to the SOCiet)
However, it is a common knowledge that court Judgements or laws cannot retno~
social prejudices on their own. How the decision on S~ction 377 w~rks on the
ground is yet to be seen. N~vertheless, ~e landmark verdict of ~01~ Certain!,
help in removing the emotional and social burden on sexual mmonties.

Challenges Faced by LGBTQIA+ Community

When it comes to the rights, the modem state in transition is confronted today
with new challenges coming from diverse sociocultural and economic groups,
These challenges are manifested by demands for privileges and rights for groups
and communities. The LGBTQIA+ community realised that, though they have
benefitted from their new-found legal freedom, the notion of social acceptance
plays an important part in their personal liv~s. Despite the numerous legal provi-
sions, crimes and harassment committed against the LGBTQIA+ communities
reflect the fact that their rights continue to be violated. Sexual minorities face
challenges, harassment and discrimination in educational institutions, healthcare
systems and other public domain (see Figure 2). This discrimination left little
space for them to work in the formal sector. As a result, some turn to sex work and
others resort to begging; further, lack of legal protection leaves them vulnerable
to rampant violence. In the private domain, they have to constantly struggle
against the prevailing social prejudices by exercising their right to love across
caste and community (The Humsafar Trust, 2003).
Another challenge faced by the LGBTQIA+community, which has serious ram•
ifications, pertains to social acceptance, prejudices which fail to disappear despite
the legal interventions. The case in point refers to the legislation on Transgender
Persons Bill, 2018 that was passed in the Lok Sabha for a district screening com·
mittee. Medical examination is one of the many hurdles that transgender people
experience in obtaining or correcting identity papers. This discriminatory prac-
tice prevailed despite the directive issued by the Supreme Court in 2014 in its
landmark NALSA judgement, which granted legal recognition to transgender
communities. Nevertheless, with the historic 2018 Supreme Court verdict 011
decriminalisation of Section 377 of IPC is the first step, other issues such as
marriage, surrogacy, adoption and inheritance laws can be clinched in the favour
Dhal 45

Figure 2. Challenges Confronted by the LGBTQIA+ Community.

Source: The author.

of sexual minorities. Unless further reforms are introduced in the legal journey,
discrimination against the sexual minorities will never end.
Sexual minorities are vulnerable in public spaces so they must be granted pro-
tection and their right to privacy must be respected. State has to take various con-
certed measures to eliminate the stigma associated with the sexual minorities and
work towards providing them a broad range of entitlements and access to equal
opportunities. According to Justice Chandrachud, LGBTQIA+ members have a
constitutional right to equal citizenship in all its manifestations. However, the
irony is that even now the homosexual couples cannot adopt a child and same-sex
marriages are not legalised (Rajagopal, 2018).
The other issue of concern relates to the reluctance of homosexual men to report
rape or other crimes for the fear of ill-treatment and adverse legal implications,
which has tremendous psychological effects. With the 2018 Supreme Court judge-
ment, the state has to ensure that the law enforcement agencies do not penalise/
punish individuals having consensual sex. Nevertheless, the judgement has opened
up grey areas as India's laws on sexual assault do not recognise men as victims of
rape. The Supreme Court judgement has merely decriminalised homosexuality, but
it has not altered the civil law on it, though the judges have unanimously held the
view that freedom of choice cannot be subject to majoritarian perceptions.

Conclusion: Rainbow at the Horizon

The era of globalisation has witnessed rapid changes in every field, thus gender
issues need to be revisited to provide equal rights and opportunities to sexual
 46 Indian Journal of Public Administrot;

minorities who have proven themselves to be a productive workforce. lb

of the hour is to move away from the binaries such as natural/unnaturai 8e 11~
sin, moral/immoral dichotomy and strive to create a more inclusive and ~
sive society (Sarangan, 2018). !he coosciousnes~ o~~up_rights of_seitua] ,
ities raises the larger philosophi~al concerns o~~sc~ation and div~i:se 80Ur Or,
of disadvantages. Under these circumstances, 1t 1s eVJdent that the legifunate Cts
cerns of these marginal sections of the society need to constantly engage
public policy discourse.
It is desirable to find specific remedies to address the deep malaise that e .
in our society in so far~ the sexual minori~es are_concemed 8:°d at the same:::
more concerted efforts m terms of affirmative action are required to build a 1
playing field for these minorities. Therefore, rights-based framework is req ~Ve!
for the protection of sexual minorities that is intricately tied up with their 8,
and economic development. This will ensure the larger goals of a true demo~~al
and inclusive society, where the issues of social discrimination, economic dep .c
vation and political exclusion will be addressed effectively. Steps should be talcn.
by the state to overcome discrimination and ensure that all citizens become en
integral part ofthe society and become active participants in the sociopolitical an~
economic process. Thus, it is no coincidence that governments are redefining gov.
emance to promote gender-friendly policies that seek to eliminate discriminatio
towards different groups through introducing inclusive policies that are design~
to enhance equal opportunities and wellbeing.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, auth .
ship and/or publication of this article. or

Funding

"2:: :!: received no financial support for the research, authorship and/or publication of

Notes
1. www.nazindia.org
2. RSe~evedA20thl9,_ Septem~er 3 from https://en.wikipedia.org/wiki/National Legal
ervices_ u onty_v._Umon_of_India - -

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