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EDITORIAL ANALYSIS–Rights of LGBT Community in India

The Editorial covers GS paper 2 [Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.]

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Context

The idea of human rights is the most common issue around the world that encapsulates human dignity. The very idea of human rights is lies in the concept of ‘human should be treated as equal and anything that undermines it is the violation of the principle of equality’.

Under the articles of 14 and 21, the Indian constitution rightly mentioned the equality before the law and equal protection of law for all. The preamble of the constitution also mandates justice such as social, economic, and political equality of status — for all. 

What is the background?

Earlier in 2014, Apex Court ruled that the rights and freedoms of transgender people in India were protected under the Constitution. Also, the court has decriminalized adult consensual same-sex relationships in the Section 377 judgment review

These judgments are considered a landmark both in terms of their expansive reading of constitutional rights and in empowering LGBT persons. Both judgments mark an important moment for LGBT rights.

But as per the various critics, there is a huge gap in implementing programme for the LGBT community in India that paves the way for discrimination. For that, in recent years, the human rights of LGBT community are coming into sharper focus for adoption of legal protections for the community.

 

What are the difficulties faced by this community?

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The LGBT face innumerable difficulties in the society where the only accepted orientation is heterosexuality and homosexuality is regarded as abnormal.

  • Heterosexuality: They are more likely to experience intolerance, discrimination, harassment, and threat of violence due to their sexual orientation than those that identify themselves as heterosexual. 
  • In-equality & Violence: They face inequality and violence at every place around the world. They face torture from people who mock at them and make them realize that they are different from others. 
  • Deprived in Rights: In many countries, the rights enjoyed by opposite-sex couples are not enjoyed by same-sex couples. They are prohibited from those rights. 
  • Isolation from society: They gradually develop low self-esteem and low self-confidence and become isolated from friends and family. 
  • Conflict in Family itself: Lack of communication between LGBT children and the parents often leads to conflict in the family. Many LGBT youths are placed in foster care or end up in juvenile detention or on the streets.
  • Racial Discrimination: Additionally, lesbian, gay, bisexual and transgender people face poverty and racism daily. They suffer from social and economic inequalities due to continuous discrimination in the workplace. 
  • Tape of Addictions: These people mostly get addicted to drugs, alcohol, and tobacco to get themselves relieved of stress and rejection and discrimination.
  • Victims of Hate Crimes: They also become victims of hate crimes. In some countries, homosexuality is regarded as a crime. It is illegal and is often met by imprisonment and fines. 
  • Exclusion and discrimination have more impact on the lives of LGBT persons.

What has it resulted into?

  • Dropping out of school earlier
  • Leaving home and family
  • Being ignored in the community
  • Lacking family support
  • Attempt suicide

What are the various judgements in favour of LGBT Community?

Naz foundation v/s Government of Delhi case: In this case, Delhi High Court upholds that section 377 is in violation of Fundamental Rights of the constitution such as Article 14, 15 or 21 etc. and consensual homosexual sex between adults has become decriminalized in India.

Koushal Judgment: In 2013, the Supreme Court criminalizes homosexuality (Koushal judgment) by reversing the judgment of Delhi HC and upholding the constitutional validity of section 377.  

The right to sexual orientation was meaningless without the right to choose a partner. In Hadiya’s case, the apex court observed that neither the State nor one’s parents could influence an adult’s choice of partner. That would be a violation of the fundamental right to privacy. 

The Court also mentioned that Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is a violation of various fundamental rights such as Article 19, 21 etc.

 

What are the arguments in favour ? 

  • As homosexuality is against the nature of law, many critics have mentioned that homosexuality and other forms of sex can prove to be ill-effect for society.
  • Scientifically, any sex other than the natural cause of many serious ills in the human beings. For example, homosexuals are more prone to sexually transmitted diseases like AIDS etc than any normal person. 

What are the arguments against? 

  • Consensual Sexual orientation protected under Articles 14, 19 and 21: Consensual sexual relationships between same sexes are protected under Articles 14, 19 and 21 of the Constitution of India. 
  • The right to choose one’s partner: Right to choose one’s partner is manifest in Article 21. Various experts argue that section 377 which criminalizes gay sex violates Article 14, 15, 19 and 21 of the Constitution because there is discrimination on the basis of sex.
  • The affection of the life of LGBT people: Same-sex is a normal variant and the society has favored decriminalization of section 377 as it is affecting lives of LGBT people.
  • Violation of Right to Association: Section 377 violates the right to form an association between sexual minority and the LGBT community is afraid of forming any kind of association fearing police action. 
  • An instrument for Exploitation: Many critics feel that section 377 is just an instrument of exploitation and it is almost not possible to decide what type of sex two consenting individuals are having in private.
  • Unhappy Marriage: Due to the stigma of Homosexuality, LGBT people bound to marry the opposite sex and that leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most.

Conclusion

In order to create better-living place for LGBT community, the Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law.  

There are no laws protecting gays and lesbians from discrimination at the workplace or laws that allow them to marry their partner of choice. If Sec 377 is abolished, it opens a window of acceptance and achievement for the LGBT community.  

Source: The Wire.