Sexual minorities in India include LGBTQIA+ (Lesbians, Gays, Bisexuals, Transgender, Queers, Intersex, Asexual and a whole variety of non-binary and varied sexual orientations), and since the past few decades, they are asserting their differences and causing an intense churning of politics, law and public discourse. Minorities draw and carve the morality of a constitution, unlike the social morality which is drawn by the majority. Sexual minorities in India have been fighting for their rights for many years, despite facing marginalisation and denial even to basic human rights.
Their collective identity is termed as LGBTQIA+ where each identity within this broad spectrum of sexual orientations and gender identity have specific concerns, as well as problems. These are sometimes similar, as well as different, sometimes, in certain manners.
Sexual minorities in India are now questioning the concept of heterosexuality and perception of gender as a binary, the same change can be seen in other Asian nations as well. These assumptions of heterosexuality and cis-gender conformability have to lead to ostracisation, forced marriage, oppression, depression, suicide, and low productivity in people of the LGBTQ+ community.
Several instances of police brutality and extortion highlight problems faced by these sexual minorities. Trans-genders are the most vulnerable group under the LGBT as they are forced out from their homes, not assimilated in the education institution due to their identity as a third gender which does not fit in the so-called normal identities of male and female.
The social pressure forces their parents to abandon them and, under these circumstances, they are left out with nothing to do except either begging or working as a sex worker because they are socially not accepted in any other workforce. These stark realities, despite a long history of activism, legislative and judicial helpings, have lead into a sorry state of affairs.
A nation is known by the way she treats her minorities. In the case of sexual minorities, India has a very poor score and the violations and denial of basic human rights to these minorities are sad. Though homosexuality is not criminalised anymore, people still lack the right to choose their partner, form families, marry, adopt, have insurance claims and seek inheritance.
Sexual orientations and gender identities are intersectional; it is very important to highlight the factor that these sexual minorities face a double or triple level of seclusion as a result of intersectionality due to their gender identity. For example, Dalit trans women or a working-class Muslim lesbian are at the verge of the epic amount of vulnerability.
It’s Against The Indian Culture, Apparently: These arguments state that accepting homosexuality is against Indian culture. This is totally incorrect. If we peep back into our ancient, medieval and the late history of Mughals in India, all such claims made by them stand invalid. As we are well versed with the fact that books, movies, paintings and statues made by sculptures are a mirror to society and we can peep into the morals ethics and accepted norms of any given period by visiting at these valuable gifts from that time. If we look back to ancient India, we will find the statues in Khajuraho temple which openly depict gay sex, further suggesting that Homosexuality was prevalent at that time.
Hindus pray to the idol of Lord Shiva depicted as ‘Ardhnarishwar’ (half male half female) from time immemorial which approves of divine blessing to sexual minorities due to which they are treated like demigods. Lord Rama gave power to a transgender to bless at childbirth and other important ceremonies, hence they are celebrated with pride in Ramayana and are a very vital part of Ramrajya.
South India celebrates a festival at Koovagam which is entirely dedicated to trans-genders and follows the lineage from the time of Mahabharata when Lord Krishna turned into his female form of Mohini.
From an Islamic perspective, if we look at Hazrat Baba Bulleh Shah then we find that he used to dress as a woman and dance with eunuchs and performed raqs. Apart from him, another fellow Sufi, known as Mir Tahir Mir, the most celebrated Urdu poet, allegedly explored his love for fellow men.
Homosexuality was part of our culture, but this diversity, acceptance of sexual re-fermentation and gender identity was converted into binary by the invasion of British. History doesn’t agree with this argument that homosexuality is a westernized concept because the anti-homosexual laws can be traced from the time of Henry VII when the first legislation penalising homosexuality was passed as the Burgery Act of 1533.
British morality inserted criminalisation of homosexuality in India, but the UK amended its homophobic law in 1967 by the Sexual Offenses Act, 1967. Theresa May, the then British Prime Minister, publicly apologised for imposing Victorian morality and criminalising homosexuality in commonwealth nation in the year 2018.
Homosexuality Is Against The Order Of Nature, Apparently
It is a medieval Christian concept that sex is only for the production of children sex and not for pleasure. Any sexual act which doesn’t lead to procreation is against the order of nature and this notion cannot be accepted in today’s world because this will invalidate the abortion rights. It will impose a greater threat by questioning the use of contraception. We can’t apply these thoughts to a democratic society like India because who is the authority to decide on what is natural and what is not. Homosexuality is found in over 1500 species, therefore, we can’t term it unnatural.
Homosexuality was removed from the list of mental disorders by the World Health Organization in 1992. This was done through constant advocacy of psychiatrists in the USA, which removed it from the list of mental disorders by the American psychiatric association in 1973. In India itself, the 2017 mental healthcare act expressly prohibits discrimination on the ground of sexual orientation in the domain of mental health.
Constitutional morality is as static as the doctrine of basic structure envisaged through Kesavananda Bharti v. Union of India. The morality of a constitution doesn’t change with changing morality in society. It is a morality based on inclusivity, equality, dignity, liberty, and autonomy of each individual.
Constitutional morality has an upper end over social morality from a legal perspective since the constitution is the ‘grundnorm’ (the German word for ‘basic norm’) of the nation, therefore, the morality flowing from the sources of the constitutional glacier has to be nurtured to water the fields of minority rights.
The former Chief Justice of India, Justice Dipak Misra reintroduced the jurisprudential concept of constitutional morality recently in his thirteen judgments, out of which the Navtej Singh Johar v. Union of India is the most remarkable one. Through this judgment, the Supreme Court reversed the erroneous decision of a division bench which had criminalised homosexual acts between two consenting adults in Suresh Kumar Kaushal v. Naz Foundation.
The doctrine of constitutional morality is based on viewing morality through the prism of the constitution; in a majority driven democracy of India, the constitution has provided several checks and balances to retain the diverse and plural character of India. Since the very inception of independence, the debate between social moralities was mostly driven on accounts of the morality of the majority community of India and it has been repeatedly questioned.
Reformative action to uplift caste-based oppression of scheduled castes and scheduled tribes was envisaged by the constitution-makers to provide a level playing field to the groups of people who have been left behind due to seclusion, discrimination and lack of opportunities.
The constitution of India protects diversity and plurality, it provides the right to have a dignified life, the right to equality and right against discrimination. Sexual minority rights came into the picture after the gay revolution during the 1960s began in the U.S.A. called as “The Stonewall Riots”; during these riots, the members of sexual minority groups took to the streets and revolted against the brutality done by the police.
It finally resulted in a three-day riot which is said to have paved the way for the formation of the Gay Liberation Front, the first mainstream political organisation demanding equality for homosexuals. This started the beginning of a long fought war of equality, dignity, and freedom for the LGBT community.
These ideas of sexual minority rights further spread to Canada and other American nations and finally to the European continent. In India, these sexual minorities have been looked through the glasses of disgust, unnatural, immorality and shame but for the first time in 2009, the Delhi High Court in its remarkable judgment of Naz Foundation v. Govt. Of N.C.T. of Delhi envisaged the rights of sexual minorities in India.
From the very beginning of jurisprudence, man has always debated between the issue of morals and law and the widely accepted conclusion was “that there can be certain things which are illegal but morally correct and certain things which are legal but morally incorrect”. But, the question which is mostly faced in such striking situations is which laws or which morality should prevail. In India, the courts have always kept aside social morality and upheld the validity of legal morality or constitutional morality.
The Supreme Court of India paved way for the acceptance of life in a relationship by providing them with the rights and liabilities same as a domestic relationship under the Domestic Violence act, through its judgment in the case of Manoj Narula v. Union of India. In this judgment, the court provided the constitutional guarantee of choice of a partner and protection of the institute of life in a relationship, legitimising it as a domestic relationship. This made huge headlines in newspapers. This changed the public discourse of conservatively seeing the couples living in civil unions through an eye of disgust and immorality to the liberal view of accepting choices and personal freedom.
Constitutional morality is an antithesis to social morality because in the noise and jingoism of a majority, often the rights of minorities are overlooked and in such cases, the constitution comes into play to rescue their rights. Sexual minorities pose a whole new range of issues which need to be taken care of. The issues of seclusion, discrimination and ostracisation are similar to what racial, religious, caste, ethnic or cultural minorities face, but the question of breaking heteronormativity and questioning the role of marriage, adoption, and inheritance pave a new range of issues which need to be very critically deliberated and solutionised. Therefore, courts play a vital role in formulating a public discourse and since the mainstream politics of India is not sensitized towards sexual minorities, it is a far more magnanimous issue. The constitution, by means of the judiciary, is the only safeguard for protecting their rights.
Sexual minorities need additional affirmative action because they have been suffering from historical injustice since the majoritarian social morality has called their desires and love as unnatural. Even though homosexuality is found in over 1000 species, homophobia is found only in one: the homo sapiens.
Sexual minorities have the right to have self-expression of their gender under article 19 (1) (a) of the constitution of India. Gender expression and gender identity deal with individuality and one’s feelings regarding the way one identifies its gender. The Supreme Court accepted this idea of self-expression of gender identity in the NALSA V. Union of India and laid down guidelines for the central and state governments to protect the identity of the third gender. Its flawed implementation points out to the lacunas in Indian democracy where the narrative is driven through polarisation of the majority. In reality, constitutional morality is not followed, instead, the morality imposed by the majority is followed, and hence, it is vital for the judiciary to sensitise and adopt an activist approach in protecting the rights of sexual minorities
The constitution has conceived the identity of individuality and individual autonomy. It breaks social norms and rigid stereotypes, it is through this conception of individuality and diversity that the sexual minorities demand special efforts to protect their sexual orientations and gender identity, they demand to be protected to form their families and marry the person they choose to marry. They demand to be recognized as a couple so that they can have rights of adoption, inheritance, and insurance when their partners are in grave situations.
If social morality is followed, then the society will lead to anarchy as we have seen it in the recent issue of mass mob vigilantism in India, where such moral policing has also lead to deaths. It is rightly said that “majoritarian mob doesn’t have heads the have arms”. Besides this, the same social morality has been fatal in the case of honour killings where morals come in way of a person’s right to form a family and marry. This sort of honour killing is done in the name of social morality. Inter Caste marriages in large parts of India result into honour killings and the same is the fate of inter-religious marriages, therefore the case for social morality cannot be accepted in a diverse and vibrant democracy like India. It has been a long history after independence that our nation has seen these horrors of majority ridden morality which resulted in riots, mob vigilantism, and honour killings.
Another vital issue on this point is that morality changes from time to time. We have seen that the discourse regarding morality changes when society is sensitised in certain issues. In pre-independence era, “Sati” and “child marriages” were widely accepted as morally correct, rather were imposed as obligations under the patriarchal set up, but after passing statutes and taking action to stop these practices, a change came into the minds of people and the same practices which were once moral came to sidelines and were declared a criminal act.
The impact of one’s sexual orientation is not at all just limited to their intimate lives; they are an integral part of their day to day dealings with their family, society and workplace. Thus, ostracisation of a person belonging from sexual minority leads to huge levels of stress and it reflects on their growth in India. The Sexual Harassment at Workplace law is not gender-neutral or inclusive for LGBT community, therefore, they have no protection when they suffer sexual harassment, sexually coloured remarks or discrimination at the workplace.
The Darwinian philosophy of evolution, when applied to society, leads to mass changes and the present change in India related to a sexual minority is of the same sort. Initially, every disruption in continuing morality and social norm is resisted, but later through advocacy and deliberation, the public discourse of the issue is changed, which finally results in social morality. Since we all know that change is the only constant, therefore we need to have an environment of acceptance for such sexual diversity in our nation.
From the above, it can easily be concluded that to protect the diversity and plurality of our nation, we need to leave the glasses of social morality and only constitutional morality mandating inclusion, acceptance, dignity freedom and liberty must be followed, as a person’s sexuality is her or her most precious and private right. India shall always look forward as the constitution is a living document, therefore, it should be interpreted under transformative constitutionalism which believes that the rights of sexual minorities shall be protected. Social morality can never trump constitutional morality under any circumstance.
There is still a long way ahead for our nation in the arena of protecting sexual minorities. Right now, the legislature has a very vital role in deliberating over issues of same-sex marriages, right to adoption, inheritance, and insurance. The further road for minority rights of LGBT is very tricky unless our legislature follows constitutional morality because all these areas are governed by personal laws.
Even the Special Marriage Act, which is secular in nature, doesn’t talk about same-sex relations; all it talks about is a marriage between man and woman. If the legislature fails in fulfilling its duty, then the only ray of hope is from the Supreme Court of India to uphold rights of sexual minorities Following its previous judgements in the cases of Navtej Singh Johar and NALSA, and similarly the Supreme Court of USA, in 2016, in the case of Obergfell v. Hodges, declared that all the 50 states same-should provide same-sex marriages as it is the constitutional right of and every person to marry anyone whom he or she chooses as his or her partner.
Indian constitution also prescribes for the holy trinity of rights of equality and non-discrimination, freedom of expression and right to life and liberty. Under the guiding light of the constitution, the social morality of disgust hate, seclusion, ostracisation, and humiliation shall fall and the rights of sexual minorities shall be upheld.