New Delhi- The year 2023 has proven to be a challenging period for queer rights in India. Hopes were high for significant advancements, particularly in the context of the same-sex verdict. Unfortunately, the outcomes fell short of expectations, leaving many disappointed. Meanwhile, the struggle for equal representation for trans individuals persists, highlighting the ongoing challenges faced by the queer community.
As we reflect on the significant judicial and executive decisions surrounding queer rights throughout the year, it's essential to recognize that the fight for equality is a prolonged journey. Despite setbacks, the resilience of the LGBTQ+ community remains a testament to the enduring commitment to securing equal rights and representation. The Mooknayak brings to you a detailed report on the year and its impact on queer rights.
Fight for Horizontal Reservation Still Continues:
The transgender community in India is actively pushing for the implementation of the NALSA judgment, which mandated various rights, including reservations in education and employment. Despite the judgment's directives, complete realization of these rights is yet to be achieved. Advocacy includes the demand for separate reservations for transgender individuals, potentially under the category of "Socially and Educationally Backward Classes."
A notable incident occurred on 17th April when a peaceful protest led by Dalit trans activist Grace Banu and the Trans Rights Now Collective faced forceful detention and mistreatment by Chennai Police. This highlights the challenges and resistance faced by the transgender community in their quest for equal rights. Activists like Grace Banu play a crucial role in leading protests and seeking justice.
The issue of reservations has sparked protests in major cities like Delhi and Mumbai, with demands for horizontal reservations across different castes. Seeking clarification on reservations recommended by the NALSA judgment, Grace Banu submitted an application to the Supreme Court on March 27. However, the Chief Justice declined to hear the case, adding complexity to the ongoing struggle for transgender rights in India.
Same-Sex Marriage- A Hopeful Hearing but a Disappointing Verdict:
On 17th October, the Supreme Court delivered a split 3:2 verdict, denying same-sex couples marriage rights and stating that marriage is not a fundamental right. The court emphasized that legislative changes fall under the jurisdiction of the parliament, disappointing the queer community, which sought not only legalized unions but also the greater protection provided by heterosexual marriages.
Chief Justice D Y Chandrachud led a panel of five judges during April and May, considering petitions for legal recognition of same-sex marriage in India. The potential inclusion of same-sex marriages in the Special Marriage Act was discussed, marked by compelling arguments from Senior Advocate Mukul Rohatgi, who emphasized the fundamental right to marry for all individuals. The focus shifted from personal laws to the Special Marriage Act, with Solicitor General Tushar Mehta advocating for parliamentary decision-making on marriages.
The court's deliberations included discussions on adoption rights and administrative issues faced by the LGBTQIA+ community. The government, at times, displayed resistance, labeling petitioners as 'urban elite.' The eventual decision has the potential to impact India's legal landscape, necessitating careful consideration of various personal laws.
Over a month later, a review petition was filed by Udit Sood, a US-based lawyer among the 50 petitioners advocating for marriage equality. The 450-page petition argues that the October 17 verdict is "self-contradictory and manifestly unjust." It calls for a review, asserting that errors in the judgment deny equal marriage rights to the LGBTQIA+ communities, urging the Supreme Court to "review and correct" its decision.
Bill to Replace IPC Overlooks Vulnerability of Homosexual and Trans Men:
The Bharatiya Nyaya Sanhita (BNS) Bill of 2023, introduced on December 12 and recently receiving the president's assent to replace the Indian Penal Code (IPC), has stirred controversy due to its exclusion of Section 377. Section 377 currently criminalizes non-consensual sexual acts among adults of diverse genders and orientations, extending to offenses against animals. Despite a recommendation from a Parliamentary Committee to retain these provisions, the new Bill omits them, effectively leading to the decriminalization of rape involving men, transgender individuals, and animals.
The exclusion of Section 377 from the BNS Bill has triggered concerns and debates, particularly considering the gravity of the offenses it addresses. By not incorporating these provisions, the legislation creates a legal void regarding non-consensual sex, leaving certain groups vulnerable to sexual violence without specific legal protection.
It's crucial to note that previous judgments, such as the Navtej Singh Johar case in 2018, which decriminalized consensual sex among adults of all genders and orientations, and the recent Supreme Court ruling on same-sex marriage, have emphasized the vulnerability of sexual minorities. These judgments stated the necessity for legal, social, and systemic safeguards to protect the rights and well-being of individuals belonging to these communities.
The omission of Section 377 in the new Bill raises questions about the government's commitment to addressing violence faced by men and transgender individuals. By disregarding or excluding these crucial provisions, the legislation may be perceived as failing to provide adequate legal protection to vulnerable groups, potentially undermining the progress made by previous judgments in recognizing and safeguarding the rights of sexual minorities.
The controversy surrounding the BNS Bill reflects broader discussions on the need for comprehensive and inclusive legal frameworks that address the rights and safety of all individuals, regardless of their gender or sexual orientation. It highlights the ongoing challenges in aligning legislation with evolving societal norms and ensuring the protection of marginalized communities.
Transgender included in the Definition of Gender in BNS:
Section 10 of the Bharatiya Nyaya Sanhita (BNS) Bill plays a crucial role in defining the term "gender." According to this section, the pronoun "he" and its derivatives are employed to refer to any individual, irrespective of their gender identity, encompassing males, females, and transgender individuals.
To further clarify the definition of "transgender," the BNS Bill refers to clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019. This means that the understanding of "transgender" in the BNS Bill aligns with the definition provided in the Transgender Persons Act of 2019.
The Transgender Persons (Protection of Rights) Act, 2019, is a legislation designed to protect the rights of transgender persons in India. Clause (k) of section 2 in this Act defines "transgender" as a person whose gender does not match the gender assigned at birth, including trans-men and trans-women, persons with intersex variations, genderqueers, and those who identify as a man or woman.
Apart from this, the LGBTQIA+ community finds no mention in the recent bill, Invisibilizing them further. The introduction of the Bharatiya Nyaya Sanhita (BNS) offered a promising chance to harmonize the principles laid out in the NALSA and Navtej judgments. It provided an opportunity to broaden the range of protections afforded to transgender individuals and also encompass gay individuals within these legal safeguards but that did not happen.
States Issuing Transgender Welfare Measures:
Governments in Delhi, Maharashtra, and Telangana have taken significant measures to promote the well-being and inclusion of the transgender community. In Delhi, the Women and Child Welfare Department, guided by the National Human Rights Commission, has directed the establishment of anti-discrimination cells, inclusion of 'third gender' in job applications, and provision of 'all gender' or separate transgender washrooms in government offices. Maharashtra has passed a 'Government Resolution,' ensuring free higher education for transgender students in public universities and affiliated colleges, covering diploma and technical courses.
Similarly, the Telangana Government has issued an order granting free travel for transgender residents on state buses within the borders of Telangana, encompassing both rural and express routes. These initiatives collectively reflect a commitment to inclusivity, equal opportunities, and addressing the unique challenges faced by the transgender community in various facets of life.
A Step Forward for Transgender People in Armed Forces:
A parliamentary committee has drawn attention to the underrepresentation of gender minorities in the Central Armed Police Forces and has urged the Union home ministry to take for the introduction of reservations for transgender individuals.
In its recent report, the committee proposes exploring policies that could provide softer postings for women officers, alleviating them from extremely strenuous working conditions. Simultaneously, the Indian Armed Forces are actively working towards the inclusion of transgender individuals in various defense roles. A special joint study group, convened by the Principal Personnel Officers Committee (PPOC), has been assigned the task of examining the practical aspects of integrating the Transgender Persons (Protection of Rights) Act, 2019 within the armed forces.