LGBT rights in India

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LGBT rights in India India
Area controlled by India shown in dark green;claimed but uncontrolled regions shown in light green.
Area controlled by India shown in dark green;
claimed but uncontrolled regions shown in light green.
Same-sex sexual activity legal? Illegal under section 377 of the Indian penal code. Penalty: Up to life imprisonment[1][2][3]
Gender identity/expression Legal gender change allowed on SRS. Right to change legal gender to Male/Female/Other without SRS proposed April 15, 2014 and under discussion
Military service N.A
Discrimination protections Legal recognition of third gender
Family rights
Recognition of
relationships		 No recognition
Adoption Trans* adoptions allowed
File:Anjali gopalan.jpg
Asia's first Genderqueer Pride Parade at Madurai with Anjali Gopalan (2012)[4]

Lesbian, gay, bisexual and transgender (LGBT) people in India face legal and social difficulties not experienced by non-LGBT persons. Sexual activity between people of the same gender is illegal and is punishable by incarceration. The India cities of Delhi, Calcutta and Bangalore would also hold their first gay pride parades on July 29, 2008.[5]

However, after a temporary repeal in 2009, the sodomy law was once again enforced in 2014 after the Delhi High Court ruled the arrests of 13 homosexuals as justifiable.[6] Human Rights Watch states that the laws are used by police to harass HIV/AIDS prevention activists, sex workers, men who have sex with men, and other LGBT groups.[5] Homophobia is also known to be prevalent in India.[7][8]

India does, however, legally recognise Hijras as a gender separate from men or women, making the country one of the few in the world, alongside neighbouring Pakistan, to legally recognise a third gender.

File:LGBT Pride March 2014.jpg
LGBT Pride March 2014 at Bangalore

Law regarding same-sex sexual activity

Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

According to a ruling by the Indian Supreme Court, decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[clarification needed][9] However, even there have been incidents of harassment of homosexual groups.[10]

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.[11] The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court reprimanding the central government for frequently changing its stand on the issue. "Don't make a mockery of the system and don't waste the court's time," an apex court judge told the government.[12]

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[13][14][15] The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.[16] The full decision can be found here.

On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.[17] In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."[18]

On December 18, 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced the bill for the decriminalisation of Section 377, but the bill was rejected by the house by a vote of 71-24. However, Shashi Tharoor is planning to re-introduce the bill.[19]

Human rights groups[which?] expressed worries that this would render homosexual couples vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination"[20] The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.[21]

On February 2, 2016, the Supreme Court decided to review criminalisation of homosexual activity.[22]In 2016, Kerala mooted free sex-reassignment surgeries in Government hospitals after it introduced the first State government policy on transgender people.[23][24]

Recognition of same-sex relationships

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Main article: Recognition of same-sex unions in India

Same-sex marriages are not legal in India.

Gay Pride March in Bangalore (2013)

But this did not stop a Gurgaon court in 2011 from effectively recognising a marriage between two women.[25] After marrying, the couple began to receive threats from friends and relatives in their village.

Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences". Haryana has been the centre of widespread protests by villagers who believe their village councils, or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship."[26]

The couple eventually won family approval.[27]

Transgender rights

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See also: Transgender rights in Tamil Nadu

The states Tamil Nadu and Kerala in India was the first state to introduce a transgender (hijra/ aravani) welfare policy. According to the transgender welfare policy transgender people can access free Sex Reassignment Surgery (SRS) in the Government Hospital (only for MTF); free housing program; various citizenship documents; admission in government colleges with full scholarship for higher studies; alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a Transgender Welfare Board with representatives from the transgender community. In 2016, Kerala started implementing free SRS through government hospitals. [28]

In India one group of transgender people are called Hijras. They were legally granted voting rights as a third sex in 1994.[29] Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS.[30] On 15 April 2014, Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them.[31]

On 24 April 2015, the Rajya Sabha passed the Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contains provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of transgender people. The Bill also provides for the establishment of welfare boards at the Centre and State level, and for Transgender Rights Courts. The Bill was introduced by DMK MP Tiruchi Siva, and marked the first time the House had passed a private member's bill in 45 years. The Bill was passed unanimously by the House. However, the Bill contains several anomalies and a lack of clarity on how various ministries will co-ordinate to implement its provisions.[32] Social Justice and Empowerment Minister Thaawar Chand Gehlot stated on 11 June 2015 that the Government would introduce a comprehensive Bill for transgender rights in the Monsoon session of Parliament. The Bill will be based on the study on transgender issues conducted by a committee appointed on 27 January 2014. According to Gehlot, the Government intends to provide transgender people with all rights and entitlements currently enjoyed by Scheduled Castes and Scheduled Tribes.[33]

Transgender people in Indian politics

The All India Hijra Kalyan Sabha fought for over a decade to get voting rights, which they finally got in 1994. In 1996 Kali stood for elections in Patna under the then Judicial Reform Party and gave the Janata Dal and the BJP a bit of a fight. Munni ran for the elections as well from South Bombay that year. They both lost, more than 13 years Hijras are participating in the politics in India.[34]

After the defeat of Kali and Munni, three years later we saw Kamla Jaan run and win the position of the mayor of Katni in MP.  Then there was Shabnam Mausi, who was elected to the Legislative Assembly in 2002 as well. In the huge political machinery, Heera won a seat at the city council of Jabalpur, Meera won a similar position in Sehora, and so did Gulshan in Bina. In December 2000, Asha Devi became the mayor of Gorakhpur, and Kallu Kinnar was elected to the city council in Varanasi. I am sure there are many more low level, inconspicuous bureaucratic positions that were held by the hijras but did not whip up any excitement for the media — not to mention the cases where they were probably threatened, bullied and killed to prevent them from running for seats. This brings us to the current elections, which has Mangesh Bharat Khandye running for the Thane Lok Sabha seat.

Shabnam Mausi is the first transgender Indian or hijra to be elected to public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003.In 2000 Shabnam Mausi became India's first eunuch MP.(Hijras were granted voting rights in 1994 in India.) In 2003, Hijras in Madhya Pradesh have announced establishing their own political party called "Jeeti Jitayi Politics" (JJP), which literally means 'politics that has already been won'. The party has also released an eight-page election manifesto which it claims outlines why it is different from mainstream political parties.Hira bai became first TG MLA of India from Jabalpur vidhanshaba seat.[35]

Kalki Subramaniam, a transgender rights activist, writer and an actor,In the 2011 assembly elections, Kalki tried in vain to get a DMK ticket.[36] Again on March 2014 Kalki announced in Puducherry that she would contest in this election from Villupuram constituency in neighbouring Tamil Nadu. She is likely to be among the very few contestants fighting in the national elections from the transgender community that faces discrimination and ridicule.[37]

On 4 January 2015, independent candidate Madhu Bai Kinnar was elected as the mayor of Raigarh, Chhattisgarh becoming India's first openly transgender mayor.[38][39][40][41]

Manabi Bandopadhyay became India's first transgender college principal, on 9 June 2015, when she assumed the role of Principal of the Krishnagar Women's College in Nadia district, West Bengal.[42][43]

On 5 November 2015, K. Prithika Yashini became the first transgender police officer in the state of Tamil Nadu. At the time, the Tamil Nadu police had three transgender constables, but Yashini became the first transgender to hold the rank of officer in the state.[44]

Gender issue in TNPSC and UPSC

Transgender Swapna and gender activist Gopi Shankar from Srishti Madurai[45][46] staged the protest in Madurai collectorate on 7th October 2013 demanding reservation and to permit alternate genders to appear for examinations conducted by TNPSC, UPSC, SSC and Bank Exams.Swapna, incidentally, had successfully moved the Madras High Court in 2013 seeking permission to write the TNPSC Group II exam as a ‘woman’ candidate. Swapna is the first trans person to clear TNPSC Group IV exams.[47]

Third Gender Literature and Studies

"Vaadamalli" by novelist Su.Samuthiram is the first Tamil novel about Aravaani community in Tamil Nadu published in the year 1994. Later Transgender activist A. Revathi is the first Hijra to write about Transgender issues and Gender politics in Tamil, her works have been translated in more than 8 languages and acting as a primary resources on Gender Studies in Asia. Her book is part of research project for more than 100 universities. She is the author of Unarvum Uruvamum (Feelings of the Entire Body); is the first of its kind in English from a member of the hijra community.[48][49][50] She also acted and directed several stage plays on Gender and Sexuality issues in Tamil and Kannada."The Truth about Me: A Hijra Life Story" by Transgender A. Revathi[51] is part of the syllabus for Final Year students of The American College in Madurai.The American College is the first college in India to introduce Third Gender literature and studies with research oriented seminar and the Tamil terms for Genderqueer people was coined in this college by gender activist Gopi Shankar.[52] Later Naan Saravanan Alla” (2007) and Vidya's “I am Vidya” (2008) became first transwoman autobiography.[53][54]

Gay Literature studies

In 2013 The American College in Madurai's undergraduate English department included Funny Boy by Shyam Selvadurai as part of syllabi under gay literature and marginalised studies.[55]

Summary table

Same-sex sexual activity legal No
Equal age of consent X mark.svg
Anti-discrimination laws in employment No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Same-sex marriages No
Recognition of same-sex couples No
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Adoption by transgender people Yes
Gays and lesbians allowed to serve openly in the military No
Right to change legal gender Yes
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSM allowed to donate blood No

LGBT rights activists

Name Achievement
Swapna Madurai 1st Transwoman to clear Tamil Nadu Public Service Commission Exam & 1st Transgender I.A.S aspirant.
A.Revathi Actor, Artist, Writer, Theater Activist
Anjali Gopalan Human Rights Activist
Leena Manimekalai Poet, Writer, Film maker
Rituparno Ghosh Popular Film maker, Winner of 11 Indian National Film Awards
Manvendra Singh Gohil Prince of Royal Clan
Andrew Harvey Author, religious scholar and teacher of mystic traditions
Harish Iyer Human Rights Activist
Celina Jaitley Miss India 2001
Firdaus Kanga Writer and Actor
Karpaga the first trans person ever in India to perform a leading role in a mainstream movie.
Ashok Row Kavi Founder of Humsafur Trust
Agniva Lahiri Social activist (PLUS Kolkata)
Saleem Kidwai Writer
Nolan Lewis Mr India Gay 2013
Shabnam Mausi 1st Trans to contest in the Indian election
Sushant Divgikar Mr India Gay 2014
Hoshang Merchant Teacher, Poet and Critic
Ismail Merchant Film producer and director
Onir Award winning Film Director
Manabi Bandyopadhyay India's first openly transgender college principal & 1st Transgender PhD holder.
Kalki Subramaniam Trans activist, Actor, Artist, Writer, Entrepreneur and Founder of Sahodari Foundation
Gopi Shankar Madurai Genderqueer activist, Writer and Founder of Srishti Madurai
Nakshatra Bagwe Actor, Film maker and First ever openly Indian LGBT person to be signed up as a brand ambassador. (for Moovz)
Bobby Darling Transsexual actress
Tista Das Transsexual Activist
Pablo Ganguli Cultural entrepreneur, artist, director and impresario
Raul Patil Mr India Gay 2011
Zoltan Parag Mr India Gay 2008
Sridhar Rangayan Founder and Festival Director of Kasish Mumbai International Queer Film Festival, Film Maker
R. Raj Rao Writer, Professor of Literature
Wendell Rodricks Fashion Designer and Choreographer
Nishit Saran Filmmaker, gay rights activist
Vikram Seth Writer
Parvez Sharma Indian writer and documentary filmmaker
Ramchandra Siras Indian linguist and author.
Manil Suri Indian-American mathematician and writer
Laxmi Narayan Tripathi Trans activist
Ruth Vanita Writer and Academician
Rose Venkatesan 1st Trans TV host in India
Riyad Vinci Wadia Independent filmmaker

References

[56]

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  6. ↑ https://76crimes.com/2014/02/17/13-arrests-in-crackdown-as-india-revives-anti-gay-law/
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  9. ↑ Kusum Ingots v. Union of India, (2004) 6 SCC 254: "An order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."
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  25. ↑ "In a first, Gurgaon court recognizes lesbian marriage", Times of India
  26. ↑ "India's first married lesbian couple given 24-hour protection", The Telegraph
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