This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.
We are in the era where people are more emphasising over the aspect of individual rights and human rights. We are able to witness a shift from the orthodox hypocrite principles and perception to more rationale human rights perception. In a way, we can say that we are moving towards the idea of liberalism. People around the world are raising concerns with respect to the human rights of vulnerable classes of people existing in the society. Apart from women, children, and refugees, there is one more community which has been vulnerable in the society whose human rights are abridged is the LGBT community.
LGBT community basically includes people having a different sexual orientation. The community includes the people who are lesbians, gay, bisexual and transgender. The people belonging to this community or class are often stigmatised by the society, they face a lot of legal and social difficulties.
Internationally various countries have recognised the rights of the LGBT community and have provided a legal status to people belonging to such community and also have permitted gay marriages. It is only recently that the people are accepting the people of different sexual orientation and identifying the transgender but few years ago such people were looked down upon and were considered to be not socially acceptable. But, due to the increase of awareness, education and emphasis on the human rights people are now moving towards the idea of tolerance, social acceptance, equality and liberalism. Universal Declaration of Human Rights (UDHR) does not specifically mention about sexual orientation and gender identity but it confers some basic human rights to every person on the planet from a virtue of being a human. Therefore it is important that the basic human rights of every person should be protected irrespective of him/her belonging to any class or community.
In India, certain basic rights are conferred upon the citizens by fundamental rights enshrined in the Constitution of India. Recently, in 2014, the Supreme Court in the case of National Legal Services Authority v. Union of Indiahave recognised transgender people as the third gender and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, in addition to this the Supreme Court granted them reservations in educational institutions and jobs as they are socially and economically backward classes. This step taken by the courts can be considered to be a major step towards gender equality and gender identity in India.
Same-sex intercourse or homosexual intercourse is a criminal offence according to Section 377 of the Indian Penal Code 1860. In 2009, the High Court of Delhi, in Naz Foundation v. Govt. of NCT of Delhi made an observation that Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct are in direct violation of fundamental rights provided by the Indian Constitution. The court did not declare the Section 377 as unconstitutional as a whole, but it was passed over to the Parliament to amend the law with respect them. This judgement was unwelcomed by various people and there was a lot of resistance from many over this issue of acceptance of such activities by society at large. In 2013, the Supreme Court set aside the verdict given by the Delhi High Court on decriminalisation of Section 377 of IPC over consensual homosexual activity. The Supreme Court emphasised over the need to legislate and debate over the matter by the parliament.
Same-sex marriages or Gay marriages are illegal in India. The couples are not legally recognised. Such a practice is highly stigmatised in the Indian society and is considered to be abnormal. Often people consider homosexuality to be a disease or health ailment rather than a sexual orientation. People are not able to accept the LGBT community as a part of their society.
What is needed is the social inclusion of LGBT community as at the end they are human beings, even if they have a different sexual orientation or different gender they are human beings and they have every right to have a normal and a happy life and to have a normal discourse in life. Many countries across the globe such as USA, UK, France, New Zealand, South Africa, Argentina, Norway etc. are recognising the rights of LGBT community. Therefore it is important that India also recognises the rights of LGBT community in light of the basic human rights.
Section 377 of the Indian Penal Code is a very old provision and is stagnant, it is important that the law should be changed as per the needs of the people in order to attain welfare and harmony amongst the people. Thus, decriminalisation of Section 377 of the IPC is must. LGBT community should be recognised by the people in India and by the State and should confer rights upon them which are basic human rights, differentiation on the basis of gender identification and sexual orientation should be curbed.
India court recognises transgender people as third gender, BBC News, 15 April 2014, India.
<Accesible at: http://www.bbc.com/news/world-asia-india-27031180> , Last accessed: 24th Sept 2016
Writ Petition (Civil) No. 400/2012
 Writ Petition (Civil) No. 7455/2001
Suresh Kumar Koushal&Another v Naz Foundation & Others (Civil Appeal no. 10972 of 2013)
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