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The LGBT refers to Lesbian, Gay, Bisexual and Transgender communities. It is a collective term that includes within its purview both the concept of third gender (Transgenders), fluid Gender Identity groups and people with same or mixed gender sexual preferences (Lesbians, Gays and Bisexuals).
Ancient India was no stranger to gender identities being looked at through a prism of scale rather than the black/white division of Male/Female. History shows a prevalence of third genders in our Epics (Mahabharata, ‘Ardhanareeshwara’) and recorded history as concubines and courtiers. It would be safe to say that the discrimination accorded to Transgenders today was not always prevalent in India. It would also be a fallacy to assume that all transgenders had a uniform experience, those within proximity of powerful kings, queens and courtiers yielded more influence than an average transgender.
The fall of Transgenders from their role as facilitators of political processes within Royal courts coincides with the coming of British and dismantling of existing political structures thus rendering a powerful section of Transgender community toothless. Simultaneously, Transgenders did not feature prominently as a cohesive group in demanding favours from the colonial government thus relegating them to the fringes of society. It is also important to note that British imposed Laws were informed by the Colonial notions of Prudery and rigid interpretation of ancient Indian laws (largely slanted towards upper castes) which played their part in negating the identity of such groups.
The Indian Penal Code largely fashioned in the colonial times presents a strange paradox for India today. While the erstwhile Colonial Powers have done away with pernicious sections like Criminalisation of Homosexuality( Britain decriminalised homosexuality in 1967), Sedition etc, our IPC continues to hold the umbilical cord of Colonial English legalese sacred and sanctimonious.
The issues involved in LGBTs are multiple - social acceptance, legal equality, criminalisation of sexual orientation and denial of civil rights like Marriage etc.
In case of Social Acceptance, as it happens so often, mere law won't be enough of a panacea as laws are often but a reflection of moral constructs of a society. A perception change and greater assimilation of those at the fringes of traditional sexual identities would serve as a better indicator of the improvement in their status. Important here would be remember that prior to the colonial imposition of penal code, India since ancient times had a more open acceptance of third gender, fluid gender and sexual identities as evidenced by the nomenclature of ‘Ardhanareeshwara'.
The legal equality has 2 aspects - the strict interpretation of Equality as evidenced by Article 14 and Article 19 (freedom of expression and whether it includes freedom of sexual identity expression) and the mode of enforcing that equality. Indian Constitution enables Courts to judge laws on 'procedure established by law' while the American Constitution gives the SCOTUS the mandate of 'due Process of law’. So while the Courts may decide to exercise their powers and declare Section 377 illegitimate under the Constitution, the question of judicial overreach over Legislature does arise. In comparison, the landmark decision by SCOTUS in 2015 to give Marriage rights to same sex couples was a device used under the mandate of ‘due process of law’, wherein law as found to be discriminatory to the same sex couples. It is worthwhile to note that the existing law on Homosexual relations stands in stark contrast to the progressive ruling on Transgender Rights case.
The defeat of’ Decriminalisation of homosexual relations’ private member bill among adults under Section 377 of IPC in the Parliament demonstrates that not all sections of society are ready for such a change. Whether in the case of such Legislative Opinion, the Courts should intervene is up for debate - it leaves the Judiciary open to charges of Overreach. The silence of Political Parties wary of upsetting the conservative sections of society may force Judiciary’s hand and certainly the Indian Judiciary of late is no stranger to activism.
The question of criminalisation is relatively easier to deal with compared to the Social Acceptance. The evolving nature of society ensures that there is a churning in norms of acceptable behaviour both from a social and consequently from a legal point of view. Practices of a regressive nature may enjoy social acceptance but deemed criminal and certain other practices may be decriminalised even while not enjoying widespread social acceptance. So while, the Courts can take a liberal view and de-stigmatise homosexuality, it would take longer to affect social acceptance.
Even in countries where Homosexuality has been decriminalised, there is now a call for equality in terms of civil rights like Marriage e.g. USA. Their example is instructive as it demonstrates that even with legal backing, social acceptance takes time to build. The question of civil rights might take even longer to resolve if the concurrent public acceptance isn’t built.
By: Navdeep Jakhar ProfileResourcesReport error
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