Video Link: https://www.youtube.com/watch?v=oetwuFtKblg&t=2s
Prejudices and violence against the Lesbian/Gay/Bisexual/Transgender/Queer (LGBTQ) communities in India has gone unchallenged under the cover of sehaveon 377 of the Indian Penal Code (IPC) which makes sex with persons of the same gender punishable by law. Members of the LGBT communities bear with untold forms of social and economic exclusion, discrimination and rights violations and legal recourses are a thing of the recent years. The Transgender Persons (protection of rights) introduced in the Lok Sabha by the Ministry of Social Justice and Empowerment in 2016 is flawed in many ways. Despite continuing social and economic exclusions and human rights violations against members of the LGBTQ community, the government is not taking up the bill with urgency. The following review is a summary of legislative and policy decisions at the national level regarding the rights and issues of those individuals marginalized on the basis of their gender identity and sexuality.
Justice K.S. Puttaswamy (retd.) vs Union of India (Right to Privacy judgement) and people with diverse sexual orientation: On August 24, 2017, a nine judge bench of the Supreme Court, led by Chief Justice Khehar, unanimously ruled that the right to privacy is a fundamental right of all Indians in that it is subsumed under the right to life and liberty, which are inalienable rights protected under Article 21 of the Indian constitution.The landmark ruling stated that privacy and personal liberty extends to individual autonomy and the right to govern personal choice, further clarifying that sexual orientation is an “essential attribute of privacy.” Justice DY Chandrachud, one of the nine judges, said, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.” The ruling stated that discrimination on the basis of an individual’s sexual orientation was “deeply offensive to the dignity and self-worth of the individual,” and that the right to sexual orientation lay at the core of the fundamental rights guaranteed by Articles 14, 15, and 21 of the constitution, i.e. equality before law, right to anti-discrimination, and right to life and personal liberty respectively.
Section 377 of Indian Penal Code: This ruling further clarified the bench’s view on arguments made in the 2013 case Suresh Kumar Kaushal and Another v. NAZ Foundation and Others which ruled Section 377 of the Indian Penal Code to be constitutional. The 2017 right to privacy ruling stated that the rights of the LGBTQ community are not “so-called but real and that sexual orientation is an inherent component of identity.The the ruling also dismissed the 2013 Koushal argument that the LGBTQ community constituted a “minuscule minority” (wherein a few individuals were prosecuted in comparison to the majority) as a flawed premise and that it was in fact hindering the “fulfilment” of one’s sexual orientation – an element of privacy and dignity. Having overruled the Delhi High Court’s landmark judgement in 2009 regarding Section 377 by declaring Section 377 constitutional in the case Suresh Kumar Koushal and Another v. NAZ Foundation and Others in 2013, the Supreme Court agreed, in 2016, to hear a curative petition on the same in response to writ petitions that were filed.
While the curative petition is still pending, in January 2018, the Supreme Court issued a notice on the writ petition filed in 2016 by five gay and lesbian celebrities (Navtej Singh Johar and Others v. Union of India) and referred it to a larger bench. Besides, Supreme Court admitted two separate pleas by Arif Jafar and Keshav Suri, and a petition by a few individuals from The Humsafar Trust and placed it before the constitutional bench (along with Navtej Singh Johar and Others v. Union of India). It also issued a notice to the Centre seeking a reply from the ministries of law and Justice.
The Transgender Persons (Protection of Rights) Bill: The Bill was introduced in August 2016 by the Ministry of Social Justice and Empowerment (MSJE) as an alternative to the Rights of Transgender Persons Bill, a private member bill introduced by MP Tiruchi Siva that was passed unanimously in the Rajya Sabha in April 2015 following the 2014 NALSA judgement by the Supreme Court granting transgender their fundamental rights and self-determination of gender.
The initial draft of the 2016 MSJE Bill grossly undermined the NALSA judgement in that it conflates the definition of a transgender person with an individual with intersex variations and did not allow for self-determination of gender, requiring a bureaucratic process to certify one’s gender as transgender. Furthermore, the bill did not outline a clear definition of discrimination or recognize the various ways in which transgender individuals are discriminated against. It is telling of the government prejudices that MSJE bill did not incorporate the positive understanding that was already available in Tiruchi Siva’s 2015 Bill.
The bill, in its problematic state, was introduced in the Lok Sabha’s winter session on August 2, 2016. In October 2016, in the wake of strong critique and protests by various citizens groups and NGOs, the Lok Sabha’s Standing Committee related to the MSJE invited feedback on the bill. The Standing Committee released its report on July 21, 2017. While the report recommends that the bill define discrimination, include private and public institutional discrimination within that definition, and outline a redressal system for those discriminated against, the report and the bill remain highly problematic. In addition to using pejorative/derogatory language such as “eunuch,” the report does not address the conflated definition of transgender, the medical screening committees that take away individuals’ right to self-determination of gender, the need for livelihood schemes and employment opportunities, and the criminalization of begging among other issues. The bill is currently pending in Parliament as of April 2018.
Anti-Discrimination and Equality Bill: Member of Parliament (MP) Shashi Tharoor introduced the Anti-Discrimination and Equality Bill (2016) in the Lok Sabha in March 2017. This bill seeks to comprehensively address the various forms of discrimination faced not only by those individuals marginalized on the basis of gender identity and sexuality but also by Dalits, Muslims, disabled persons, people from the North Eastern regions of India, and other individuals oppressed or persecuted based on identity. Despite the urgency of its necessity, the bill remains pending in the Lok Sabha as of April 2018.
- The Transgender Persons (Protection of Rights) is in urgent need of revision that brings the text in line with the 2014 NALSA judgement, correctly define “transgender,” provide a definition of and means of redressal for various types of discrimination, do away with medical screening committees that propose to provide individuals certifications of their transgender identity, decriminalize begging, and address the various other issues brought before the Standing Committee by concerns citizens groups and NGOs.
- The Supreme Court must hear the curative petition for Section 377 and respond to the various writ petitions submitted regarding this matter. The bench hearing the curative petition must take into account the right to privacy judgement that states that the right to sexual orientation is an element of privacy and dignity, i.e., a fundamental right.
- The Lok Sabha must move forward on the Anti-Discrimination and Equality Bill and seek to address the urgent need for such a bill.
- First Post (January 9th, 2018): Supreme Court to Reconsider, Review Section 377 of IPC: Apex Court’s 2013 Judgement Upheld Criminality of Gay Sex (https://www.firstpost.com/india/supreme-court-to-reconsider-review-section-377-of-ipc-apex-courts-2013-judgment-upheld-criminality-of-gay-sex-4292727.html)
- First Post (August 24th, 2016): Right to Privacy Verdict: By Terming Sexual Orientation an ‘Essential Attribute,’ SC Brings Cheer to LGBT Rights (https://www.firstpost.com/india/right-to-privacy-verdict-by-terming-sexual-orientation-an-essential-attribute-sc-brings-cheer-to-lgbt-rights-3969307.html)
- First Post (May 2nd, 2018): SC judgment on privacy was the catalyst: Humsafar Trust’s Ashok Row Kavi on petition to quash Section 377(https://www.firstpost.com/living/sc-judgment-on-privacy-was-catalyst-humsafar-trusts-ashok-row-kavi-on-petition-to-quash-section-377-4453715.html)
- India Today (august 26th, 2016): Surrogacy (Regulation) Bill 2016: 12 Facts about the Bill Banning Commercial Surrogacy (https://www.indiatoday.in/education-today/gk-current-affairs/story/surrogacy-bill-337358-2016-08-26)
- Justice K S Puttaswamy (Retd.) and Anr v. Union of India and Ors(http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to%20Privacy.pdf)
- LiveLaw (May 1st 2018): SC Notice To Centre On Fresh Pleas For Scrapping Sec 377 IPC And Legalise Homosexual Acts(http://www.livelaw.in/sc-notice-to-centre-on-fresh-pleas-for-scrapping-sec-377-ipc-and-legalise-homosexual-acts/)
- Orinam (www.orinam.net): The Transgender Persons (Protection of Rights) Bill, 2016 (http://orinam.net/resources-for/law-and-enforcement/trans-persons-protection-rights-bill-2016/)
- Orinam (www.orinam.net): First as Apathy, Then as Farce: The Transgender Persons (Protection of Rights) Bill, 2016 (http://orinam.net/apathy-farce-trans-rights-bill-standing-committee-report/)
- PRS Legislative Research (prsindia.org): The Surrogacy (Regulation) Bill, 2016 (http://www.prsindia.org/billtrack/the-surrogacy-regulation-bill-2016-4470/)
- PRS Legislative Research (prsindia.org): The Transgender Persons (Protection of Rights) Bill, 2016 (http://www.prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2016-4360/)
- The Wire (August 24th, 2017): Right to Privacy a Fundamental Right, Says Supreme Court in Unanimous Vote (https://thewire.in/law/supreme-court-aadhaar-right-to-privacy)
 Right to Privacy a Fundamental Right, Says Supreme Court in Unanimous Vote, 2017.
Justice K.S. Puttaswamy and Anr v. Union of India and Ors, 2017.
Right to Privacy verdict: By terming sexual orientation an ‘essential attribute’, SC brings cheer to LGBT rights, 2017.
Justice K.S. Puttaswamy and Anr v. Union of India and Ors, 2017.
Supreme Court to Reconsider, Review Section 377 of IPC: Apex Court’s 2013 Judgement Upheld Criminality of Gay Sex, 2018 and SC admits please to quash Section 377
PRS Legislative Research: The Transgender Persons (Protection of Rights) Bill, 2016.
 The Transgender Persons (Protection of Rights) Bill, 2016.
 First as Apathy, Then as Farce: The Transgender Persons (Protection of Rights) Bill, 2016.