Homosexuals have been a part of the society since time immemorialand their existence has been denied by calling their sexual orientation unnatural. Discrimination against them is deep rooted in society and pervades the social, economic, religious, political and educational strata. The major cause of this is that people have always regarded heterogeneity as normalcy. Socially, scriptures like Manusmriti and Arthashastra have considered homosexuality as a punishable offence and legally, homosexual sex has been criminalized under S 377 IPC. Our needs to confirm to societal tenets have failed us to realise that a common practice need not be normative. UN High Commissioner for Human Rights had said that “the ageless cliché that everyone is equal but some are more equal than others is not acceptable. No human being should be denied their human rights simply because of their perceived sexual orientation or gender identity”.
In contemporary times, sociologists and other scholars have differentiated between gender and sex. Gender is no longer the sex of a person that is assigned after birth. It is the social construction of what one is. One can be assigned the sex of a female at birth but the individual might relate to a male or a transgender. (To read more about sex and gender, click here). Mr Anand Grover, a senior advocate fighting on behalf of Hijra activist Laxmi Narayan Tripathy said that the Indian Constitution itself had recognised gender because the word ‘sex’ used in Article 15 has been given a wider interpretation so as to include gender and hence no one can be discriminated by the State on grounds of sex under Article 15.
Naz Foundation, a Delhi based NGO filed a PIL in Delhi High Court in December 2002 to challenge S. 377 IPC. On 2 July 2009, in the case Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down S. 377 of the IPC as being unconstitutional. It held that criminalization of homosexual sex would lead to the deprivation of an individual’s fundamental right to equality before law, right against discrimination and right to life and personal liberty as guaranteed by Articles 14, 15 and 21 of the Constitution of India. The Naz Foundation Judgement was seen as a respite to the huge population of homosexuals residing in India. However on Dec 11, 2013 in the case Suresh Kumar Kaushal v. Naz Foundation, a bench of justices GS Singhvi and SJ Mukhopadhaya ofthe Supreme Court upheld the constitutionality of S. 377 of the IPC, and stated that
“Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors.”
The court also said that the Parliament has amended laws many a times but they have left S 377 IPC untouched. In case the society needed an amendment of such a legal provision, the parliament should ensure that a necessary amendment is enacted. The Supreme Court totally went out of the debate as to whether S 377 is unconstitutional or not and left the onus on the Parliament. The Supreme Court took a very calculative step of avoiding any sorts of controversy. However this judgement has come under a lot of criticism. Gautam Bhan, a leading gay right activist said that it “is a dark day for the constitution. Never before has a Supreme Court taken away an expansion of rights to Indian citizens and reversed a move toward inclusion.” Anjali Gopalan, the founder of the Naz Foundation said that“It’s a black day for us. I feel so exhausted right now thinking we are being set back by 100 years.”
The issue of recognizing transgender as a different sex has again been raised in the ongoing case of National Legal Services Authority v. Union of India & Ors. The case started with the filing of a Public Interest Litigation by NALSA in October 2012. NALSA petitioned that trangender people should be recognized as a different gender in government documents like passport, voter ID card, driving license, etc. In this regard we will see as to how the transgender community is being deprived of their rights guaranteed by the constitution under articles 14, 15, 16, 19 and 21.
One such instance is the case Kamala Jaan Alias Hijrah vs Sadiq Ali & Others whereinthe Court struck down the mayoral election of a self-identified hijra stating that the hijra-candidate could not be considered a “woman” and that constituency had been reserved for a woman. This case demonstrates the highly discriminatory treatment meted out to transgenders in Indian society. They are not recognized as a separate gender either legally or socially. Due to their non legal identity and age old social ostracism, they face discrimination in every sphere of their lives – whether it is healthcare, education, employment or electoral rights.
There have been huge debates as to whether the LGBT group should be given a separate identity. NALSA contended that the Indian constitution guarantees everybody the right to lead a dignified life, the right to liberty and equality. In the NALSA petition, the petitioners have demanded that transgenders be recognized as a separate gender and be protected from discrimination on the basis of Article 15 of the Indian Constitution. The petitioners have also requested that persons belonging to this new separate gender category be given certain welfare entitlements (housing, sexual reassignment surgery, etc) and legal rights (e g, marriage and adoption). (Click here to read more).
Non recognisation of rights of transgender community leads to the violation of Articles 14, 15 and 21 of the constitution. There is no reason as to why homosexuals should not be given the same rights which are guaranteed by the Constitution. Constitutional morality should be given importance over the so called societal norms. If Articles 14, 15 and 21 are read conjointly, every individual should be treated equally and not discriminated against on grounds of sex. They should get access to educational institutions or government services and not become a victim of social ridicule and stigmatization. Unless the Supreme Court recognizes them as a different gender, they will continue to face immense discrimination and their fundamental rights will be breached upon.
The Naz Foundation judgement given by the Delhi High Court was hailed as a major leap in the route to progress for sexual rights in India. However, the 2013 Supreme Court decision in Suresh Kaushal has left many in despair. Activists feel that legislators and the executives need to take cognizance of the situation and accordingly amend the law. The outcome of the NALSA petition is highly awaited and as a judgement recognizing the transgender community as a third gender can bring about a revolution in the history of Indian society. If the general mindset of the people can change, then most of the battle will be won.
This post has been authored by Arpita Sengupta, member of the Constitutional Law Society and student at the West Bengal National University of Juridical Sciences.