In 2018, the Supreme Court of India decriminalized consensual and private same-sex relationships in Navtej Singh Johar v. Union of India- – a landmark judgment that overturned the Supreme Court’s own ruling in Suresh Kumar Koushal v. Naz Foundation which upheld the now notorious Section 377 of the Indian Penal Code. Even though the Navtej judgment was momentous, it was merely the first step in the long fight for LGBTQIA+ equality- a step that should never have taken the Indian courts so long in the first place.

But even after Navtej, the journey for LGBTQIA+ acceptance has not been easy in India, especially for those living in small towns and rural areas. A lack of LGBTQIA+ friendly-spaces and radio silence on the issue of sexuality and gender identity has made it difficult for not only society to accept the LGBTQIA+ community, but also for LGBTQIA+ people to come to terms with their own identities. But in spite of these challenges, LGBTQIA+ activists across the country have continued to work tirelessly to change laws and mindsets alike. Back in 2017 (even before Navtej), Opposition party politician Dr. Shashi Tharoor tabled an anti-discrimination and Equality Bill in the Indian Lok Sabha that is comparable to the Biden Administration’s recently introduced Equality Act. However, unlike Biden, Tharoor wasn’t able to pass his Bill, ostensibly because of its radically transformative nature.

More recently, the BJP-led Central Government slammed efforts to legalize same-sex marriage in India by responding rather acerbically to three separate petitions seeking to secure these very same rights. The Government stated same-sex couples in India did not have the fundamental right to marriage because the Navtej judgment merely decriminalized ‘a particular human behavior’. Rather, the Government said, marriage in India should remain restricted to ‘biological men and biological women’.

The Government’s counter-affidavit also claimed that “Western ideas cannot be imported to the Indian context”; yet failed to prove how the idea of same-sex marriage was inherently ‘Western’. In fact, the terminologies of “western”, and “eastern” themselves are contested and require significant academic deconstruction. To merely claim that something is “western” or “eastern” is indeed a sign of intellectual laziness. The Government’s argument falls apart further when one considers the curious cases of two Asian, non-Western countries– Taiwan and Thailand. Taiwan not only legalized same-sex marriage back in 2019 but is now on track to legally recognize international same-sex marriages . Thailand is also considering expanding the scope of marriage to also include same-sex relationships. Moreover, rich historical and sociological evidence of the existence of same-sex marriage in India has been well-documented by scholar Ruth Vanita in her 2005 book Love’s Rite: Same-Sex Marriage in India and the West. This affirms that there is nothing quintessentially ‘western’ about same-sex marriage in India.

Two more of the Central Government’s arguments are grossly egregious. The first has to do with the Government’s labelling of sexual orientation as a “particular human behaviour” and the second is the Government’s idea of marriage as constitutive of a union between only ‘biological’ men and women. If we consider the first argument, we see that the Government’s line of reasoning is false because sexual orientation is not a behaviour, it is an integral aspect of one’s identity. Here is an excerpt from the Navtej judgment that drives this point home: “Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.” So, if one’s orientation is indeed intrinsic to one’s being and concomitantly, can’t be changed, then why should homosexuals be denied the same legal rights that their heterosexual counterparts enjoy- which includes the legal recognition of marriage? Ironically, arguments of ‘behaviour and choice’ are never made against heterosexuals because they constitute the majority in society, so much so that their sexual orientation is not only seen as the de facto ‘normal but also codified in multiple personal laws in the country that recognize various forms of opposite-sex unions. Yet, not a single law in India exists that recognizes LGBTQIA+ unions.

I wonder whether it is even morally justified for a country that prides itself (no pun intended) in the diversity and the multiplicity of its people, to deny a large section of these very same people equal rights?

The Government also claims that marriage can only be between a “biological man” and a “biological woman”, yet fails to define what a ‘biological woman’ is. In 2019, the Madras High Court ruled that the meaning of the word ‘bride’ in Section 5 of the Hindu Marriage Act “cannot have a static or immutable meaning”. Rather, it had to be expanded to include not just biological women, but also Transwomen, Transgender people, and intersex people. The Court further opined that the Constitution was a living document that needed to evolve with changing times in order to be relevant; furthermore, in Shafin Jahan v. Asikan K.M., (2018) it was already decided that “the right to marry a person of one’s choice is integral to Article 21 of the Constitution”. Why then, were these progressive arguments not made to grant equal rights to same-sex couples? Expanding the scope of marriage to same-sex couples does not take away anyone else’s rights. Rather, it makes for a more inclusive and diverse family unit. For a community that routinely experiences stigma, discrimination, and ostracization in Indian society, legalizing same-sex marriage would have been one way of rectifying historical wrongs. To argue that same-sex marriages could somehow cause “complete havoc with the delicate balance of personal laws in the country” (as the Government has also stated in its counter-affidavit) is gaslighting, plain and simple.

It isn’t surprising that valiant displays of compassion, courage, and love still threaten the small-minded and cold-hearted.

The arc of the moral universe is long, but it bends towards justice.

Dr. Martin Luther King (cited by Justice D.Y.Chandrachud).

On the 6^th of September, 2018, a 5 judge bench of the Indian Supreme Court unanimously found that S. 377 of the penal code violates Articles 14, 19, and 21 of the Constitution of India[1]. This means that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. Bestiality, sex with minors, and non-consensual sexual activity between LGBT persons continue to be criminal. The decision was unanimous in the sense that all judges reached the conclusion mentioned above. However, the judgment was plural in the sense that they offered different reasons for reaching those conclusions. While this judgment is rich in many philosophical strains, this blog will study those reasons.

1. 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 (“377”) criminalized carnal intercourse against the order of nature which was punished by an imprisonment term extending up to 10 years:

377. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. [Emphasis mine].

Agitation against the section began in the late 1980s after the outbreak of AIDS in India and the section was challenged for the first time in the Delhi High Court in 1994. This challenge was quickly dismissed. Since then, this section has been challenged multiple times. The longest running legal challenge to this section was initiated by Naz Foundation, a NGO working in the field of HIV/AIDS. This action started in 2001 in the Delhi High Court (Naz Foundation case) and in 2013, the matter reached the highest court of the land, which found it constitutional (Koushal decision). That decision was awaiting a curative admission hearing when the Navtej Writ was filed in 2016 alleging that 377 violated the right to, sexuality, sexual autonomy, and sexual partner, rights that the petitioners argued, were protected under the fundamental right to life (Article 21). By this decision, the court resolved the 377 matter and overruled Koushal. In other words, this decision concludes the 377 question and there will be no admission hearing on the curative petition filed in the Koushal case. For more on curative petitions, see here. Before delving into the specific rights, I mention below, 3 notable philosophical strains that frame the decision:

1. Transformative constitutionalism: it is the idea that the constitution is created for the progressive realization of more and more rights. It is accompanied by the concept of non-retrogression which states that the march of rights must be forward and not backward.
2. Constitutional morality: it is the idea that the constitution embeds commitment to certain values, which must be upheld even if they are not overtly mentioned in an Article. All judges had different conclusions as to what these values were.
3. Fundamental rights apply regardless of number: fundamental rights are not meant for the protection of the majority. These are guarantees that each and every person/citizen enjoys. These rights cannot be denied to a community just because they are a small community. That said, the court accepted the research that 8-10% of the population is LGBT. The court uses the term LGBT so I use it here. However, it is a shorthand for all non-heterosexual sexual desire regardless of labels.

Right to Equality

Article 14

Article 14 of the Indian Constitution guarantees the fundamental right to equality, to all persons:

“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While “equality before the law” has been understood as a command to the State to treat all persons equally, “equal protection of the laws” has been understood as a command to the State to create conditions of equality between different members of the society (for example through affirmative action measures). Suppose A alleges that a particular law treats them unequally compared to B. The test applied to check a violation of equality is to ask: 1. Whether there is any intelligible differentia separating A from B or is this an arbitrary division?; and 2. Whether there is a reasonable nexus between this differential treatment of A and B and the proposed legitimate State goal, or is the connection tenuous?

Difference Between Natural and Unnatural?: A majority of the court[2] found that there is no intelligible way to differentiate natural forms of having sex from unnatural forms of the same activity, especially because sex is no longer associated just with procreation even in legal discourse. On the contrary, they said that natural sex is whatever kind of sex 2 consenting adults decide to participate in. Mental health studies worldwide have found that being LGBT is not a mental disorder or a psychological problem. 1500 species occurring in nature display homosexual orientation and it is a natural variation of sexuality. 377 criminalized sexual acts based only on the fact of sexual orientation, a naturally occurring trait. Justice Chandrachud went so far as to deconstruct the meaning of the word “natural” itself and made 2 notable points: 1. “natural” was a social construct that has historically been used to create a hierarchical society. He cited miscegenation laws which segregated between black and white populations as an example. 2. Not all “naturally” occurring things were desirable (e.g. death) and not all “unnatural” things were undesirable (e.g. heart transplant). In fact, all justices found that this law disproportionately targeted LGBT persons such that the real distinction created by this law was not between natural and unnatural, but between LGBT and non-LGBT persons.

Objective of the Law: 2 judges found that the objective of 377 was to protect women and children subjected to unwilling carnal intercourse. On the other hand 2 other judges found that the objective of the law was to impose Victorian mores of sex on the Indian society – i.e. sex only for procreation.[3] One justice did not overtly identify any State objective behind the law. Whichever objective they identified, they all agreed that 377 does not meet it. If the objective was to protect women and children then the new rape law and POCSO met it[4]. In fact by virtue of the new rape provision all kinds of non-consensual sexual acts by men against women were rape[5]. Therefore, the justices reasoned, all consensual acts, being not rape, were natural and out of the purview of 377. However, all sex acts of LGBT persons was per se “unnatural.” Therefore LGBT persons were subjected to a criminal law just by virtue of being LGBT. The judges found this distinction based on a naturally occurring trait and supported only by prejudice[6], a constitutionally unjustifiable reason. If the objective was to impose Victorian mores of procreative sex then of course 377 only unevenly met it because all forms of sex, whether or not procreative, were allowed between heterosexual couples.[7]

Article 15

While Article 14 provides a general equality guarantee, Article 15 specifically prohibits discrimination on the basis of sex:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

While traditionally this Article has been used to strike down discriminatory laws against women, 2 judges of this court endorsed a growing trend to understand Article 15 to include a freedom from sexual orientation discrimination as well. They reasoned that the constitution prohibited sex based discrimination because sex was the site at which gender roles became fixed and freedom and capacities became pre-determined. Article 15 intended to strike at these presumptions which included the presumption that men desire only woman and woman desire only men. Consequently, as 377 furthered this sex based stereotype, it violated Article 15 of the constitution. Other judges did not engage with this thread.

Right to Freedom of Expression

Article 19 of the constitution guarantees to every citizen, freedom of expression, among other things. This freedom can be reasonably restricted in the interest of decency and morality.[8] Not all justices dwelled on this Article but a majority[9] of the court found that freedom of expression includes the freedom to express oneself sexually, with a consenting partner of any sex. Justices Misra and Khanwilkar specifically pointed out such expression does not violate decency or morality, because these concepts are not majoritarian in character. Therefore, societal disgust with this population is not a constitutionally permissible reason to restrict the freedom of expression of LGBT persons.

Right to Life and the Scope of Privacy

Article 21 of the constitution guarantees to every person, life and liberty:

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Previously, another bench of the same court had found that a fundamental right to privacy was implicit in this guarantee.[10] That court had found autonomy of choice and dignity i.e. respect for the choice, to be the building blocks of privacy. That court had also found the right to sexual orientation to be intrinsically protected by privacy. A majority of this court endorsed that reasoning and extended it further to say that an autonomy based conception of privacy recognizes the freedom of persons to a sexual partner of their choosing and to make other intimate decisions.[11] A majority of the court also noted that sexual expression of LGBT persons needn’t be confined to spatially private places. In other words, LGBT persons can sexually express themselves even in public subject to other laws that regulate public displays of affection.[12] In fact, Justice D.Y.Chandrachud went so far as to deconstruct the word “private” by pointing out that many a times, homes are also not private places because they are the epicentre of heteronormativity.

Ratio of the Case

Although, it is doubtful that this judgment will ever be read in a narrow technical way, if we must, we can zero in on a ratio decidendi of the case–i.e. the reasons for the decision. A ratio decidendi will emerge when: 1. 3 or more judges find that the same legal provisions have been violated; 2. For the same reasons. As such, the following ratio emerges from this case.

1. 1. Although the distinction between natural and unnatural sex is indeterminate, 377 classed all consensual non-heterosexual sexual activities as “unnatural” whereas all consensual heterosexual activities were “natural.” This distinction was based only the sexual orientation of persons involved and does not further any legitimate State objective being rooted only in prejudice against LGBT persons. Therefore, it violated Article 14 of the constitution. All forms of consensual sex between adults is natural.
   2. 377 violated Article 19 because the freedom of expression includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation.
   3. 377 violated Article 21 because the right to life includes the right to sexual partner of choice. They can exercise this right in public and private, subject to the same laws which apply to non-LGBT persons.
2. On MarriageThis case was concerned expressly with 377 and the marriage question was not addressed by any judge directly, except J. Chandrachud, who stated that all persons should be eligible for this institutional recognition of their love regardless of sex and gender. Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union. However, they immediately mentioned that this case was not about marriage. As such it would be incorrect to say that this case has provided marriage rights to LGBT persons. However, it has certainly laid the philosophical foundation for marriage, and many other rights—anti-discrimination, parenting etc., just to name a few. Law will incrementally advance to provide all these rights to LGBT persons. The future is equal.[1] Constitution of India, 1950.[2] Justices Dipak Misra, A.M. Khanwilkar, Indu Malhotra and Justice D.Y.Chandrachud. Justice Nariman did not address this strain.[3] Justices Rohinton Nariman and D.Y.Chandrachud.[4] Except marital rape. Protection of Children from Sexual Offences Act, 2012.[5] Except marital rape.[6] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

   [7] Justices Rohinton Nariman and D.Y.Chandrachud.

   [8] (1) All citizens shall have the right

   (a) to freedom of speech and expression;

   (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

   [9] Justices Dipka Misra, A.M.Khanwilkar, and Indu Malhotra.

   [10] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1.

   [11] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

   [12] Justices Dipka Misra, A.M.Khanwilkar, and D.Y.Chandrachud.

Note: Orinam thanks Surabhi Shukla for consent to republish this analysis from her blog post on lawandsexuality.com,

IIT students and alumni petition in SC against Section 377 of IPC

This petition is being filed by 20 of us – current and past students of the Indian Institutes of Technology on behalf of 350+ LGBT alumni, students, staff and faculty from the IITs who are a part of an informal pan-IIT LGBT group – Pravritti, which has been a safe space for us to interact, connect and network. We are ordinary citizens of this country, and most of us have never been involved in activism. We come together today to file this writ petition in front of the Supreme Court of India challenging the constitutionality of Section 377 of the Indian Penal Code on several grounds. We are extremely proud of all our petitioners who have come out to take this stand and tell our country and the court – how this regressive law has violated their fundamental rights, prevented them from living a life of dignity and how it has had first, second and nth order effects in the lives of LGBT individuals. In all humility, despite having worked and studied with the best minds of this country and studying in arguably the best scientific institutions of this country the law has had a very deep impact in our lives; one can only imagine the amount of suffering and pain that S377 has caused and continues to cause in the lives of LGBT individuals across the country.

We, the petitioners, come from diverse backgrounds in terms of religion, age, sex, gender identity. We belong to different parts of India – from Kakinada in Andhra Pradesh to Sambalpur in Odisha to Korba in Chhattisgarh and across the metropolitan cities of Mumbai, Delhi, Bangalore to name a few. We are scientists, entrepreneurs, teachers, researchers, business owners and employees in companies. We are children of farmers, teachers, homemakers and government servants. Our youngest petitioner is 19 years old, 90% of us petitioners are below the age group of 30; most of us are recent alumni from various IITs. There are 2 female petitioners and one trans woman.

Section 377 legitimizes the stigma associated to the sexual orientation and its expression – something which is essential, fundamental, intrinsic and innate to an individual. The existence of this law which relegates some of us to second-class citizenship has subjected many of us to mental trauma and illnesses such as clinical depression, anxiety to name a few. The stigma, silence and violence that S377 brings in its wake has led to some of us dealing with suicidal tendencies; one of the petitioners has attempted suicide in the past. The silence thus of our legislative wing and its ineffectiveness to even consider debating the need for the existence of this law is shameful to say the least. S377 has also further contributed to the brain drain of several LGBT individuals including some of the petitioners from the IITs across industries. Within India, LGBT alumni including some amongst the petitioners have chosen sectors or companies with progressive policies over those that might have provided better career trajectories or in STEM fields which are instrumental in building a modern and strong India. One of the petitioners was very keen on becoming an IAS officer and never pursued it due to the fear of being discriminated against as a civil servant and the fear of losing the job due to the criminalization of a core part of their identity.

THIS PETITION

The Petitioners have approached this Hon’ble Court by way of this writ petition under Article 32 of the Constitution, inter alia seeking:

a declaration of their right to equality before the law and non-discrimination on account of their sexual orientation, and

for a declaration that Section 377 of the IPC violates Articles 14, 15, 16, 19 and 21 of the Constitution of India.

The Petitioners’ life experiences have demonstrated the impact of Section 377 on their lives, and the infringement of their fundamental rights, as follows:

The criminalisation of the sexual orientation and very identity of the Petitioners has resulted in a sense of shame, loss of self-esteem and self-worth, and stigma being associated with their very identities as LGBT persons. As a result, several of the Petitioners have had to grapple with depression, self-harm, and other mental health issues, including even suicidal thoughts and attempts, all of which have had a very deleterious effect on their academic and career prospects.

Lack of access to information on various sexual identities in their formative years, and the culture of taboo and shame built around discussions of LGBT identities, in large part because of Section 377, deprived several of the Petitioners of timely knowledge, resulting in a lack of awareness and their questioning of their own self-worth and rejection of their innate identity.

Unlike heterosexual persons, the Petitioners have been deprived of opportunities to freely seek love and companionship with partners of their choice, thereby denying them an essential and immutable aspect of their right to life.

The Petitioners have also been denied equal access to the State machinery in instances where they have been victims of crime.

Several of the Petitioners have had to forego better paying employment prospects, including employment under the State, and to instead choose employers who would be more accepting and accommodating of their identities.

Many of the Petitioners are contemplating settling abroad or have done so, leaving behind their residence of choice at home, only because of the sense of vulnerability and inability to lead a free existence, solely on account of their identity as LGBT.

We are extremely thankful to Naz Foundation, Voices against 377, Navtej Singh Johar & ors., Akkai Padmasali, Keshav Suri, Arif Jafar, Ashok Row Kavi & ors., and all the other NGOs and individuals who have come forward and have been fighting for the repeal of 377. We, by the way of this petition, would like to submit that this is our humble contribution to the community and building of a progressive, strong and tolerant India. We are hopeful that the court would consider the unbearable wrongness of Koushal and thereby reaffirm all the rights conferred to every individual of our country.

Email: pravrittiagainst377@gmail.com

Please email if you want to reach out for comments from our spokespersons.

Lawyers: Dr. Menaka Guruswamy, Pritha Srikumar and Arundhati Katju.

Media flash https://www.youtube.com/watch?v=nam0m8SsUpI

Although the decision was unanimous, there were six separate concurring judgments. A common thread runs across the findings given in all judgments that while the right to privacy is rooted in the right to life and liberty under Article 21, it is also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms under Article 19 of the constitution. It unanimously overruled the right judge decision in MP Sharma v. Satish Chandra to the extent that it holds that it indicates that there is no right to privacy and also overruled Kharak Singh v. State of UP to the extent that it did not give a positive finding on the right to privacy.

I would like to focus this piece on the manner in which the right to dignity has been the focus for the Court for the development of the right to privacy. This argument has special significance for the guarantee and protection of the rights of the transgender community. That the right to live with dignity includes the right to autonomy, to make decisions about one’s life choices was eloquently affirmed by Justice Dhananjay Chandrachud where he holds, “ …The best decisions on how life should be lived are entrusted to the individual. ……The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” He went on to hold that dignity permeates the core of the rights guaranteed to the individual under Part III of the constitution and privacy assures dignity to the individual.

Privacy ensures that a human being can lead a life of dignity by securing a person from unwanted intrusion. In the context of dignity, specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy. Justice Chandrachud went as far as to hold that the reasoning of the Supreme Court in Suresh Koushal vs. Naz Foundation and Others that only a miniscule minority was affected was flawed and held “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.”

The Court went on to hold that sexual orientation is an essential attribute of privacy and that the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. This settles the rights for the setting aside of Section 377 of the Indian Penal Code. Sexual orientation rights, sexual orientation is not limited to the gay, lesbian and bisexual groups but inextricably linked to transgender and intersex persons as well. Not limiting the recognition of the right to sexual orientation, the Court went on to hold that “The rights of the lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” It held that “Equal protection demands protection of the identity of every individual without discrimination.” This would most certainly include the right to one’s self-identified gender identity as upheld as an integral part of the right to life in NALSA v. Union of India.

The Court also held that the prosecutions under Section 377 while they may be only in a few cases, such acts of hostile discrimination are constitutionally impermissible because of the chilling effect which they have on the exercise of the fundamental rights and held that merely because there may have been a low number of prosecutions cannot mean that there was no violation of rights. The chilling effect of criminal law that violates the rights of the trans community is particularly relevant not only in the context of Section 377 but in the context of other criminal laws as well. Section 36A of the Karnataka Police Act, which has now been amended, and the Telangana Eunuchs Act are examples of criminal laws which have been targeting the trans community. While there may not be many prosecutions under such laws, they are used as threats by the police to permeate fear and violence among the community. For the first time this chilling effect faced by sexual minorities has been recognized. What is fascinating is the manner in which not only Justice Chandrachud’s main judgement, but many of the separate judgements referred to the right to gender identity and other rights relating to one’s intimate life in an very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he or she is. It is interesting that these issues have been addressed by the courts because washrooms and toilets are the sites were current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

How is Privacy defined?
Privacy has been defined quite simply as the right to be let alone. An elaboration of privacy has been defined by the Court as the autonomy of the individual to make his or her personal life choices. It held that the notion of privacy enables the individual to assert his / her / their personality. Justice Nariman gives three parts to the this right – (i) the aspect of privacy that relates to the physical body, such as interference with a person’s right to move freely, surveillance of a person’s movements etc., (ii) informational privacy relating a person’s private information and materials and (iii) the privacy of choice which includes the rights and freedom to make choices of one’s most intimate and personal choices. This third prong of privacy would relate to the intersection between one’s mental and bodily integrity and entitles the individual to freedom of thought, belief and self-determination and includes the right to determine one’s gender identity. Family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and the fundamental freedoms under Article 19 entitled an individual to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to make choices on all aspects of life including what to eat, how to dress, or what faith to follow. What I found most relevant and moving was the observation of Justice Nariman that the guarantee of privacy as a fundamental right was important as it would protect it, despite the shifting sands of the majority government in power. It would protect non-majoritarian views, diversity and plurality which is so crucial to our country, especially in present times where we are witnessing such intolerance of differences.

Interestingly, it was also held that privacy has both positive and negative content. Not only does the right to privacy restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes a positive obligation on the state to take all necessary measures to protect the privacy of the individual.

The Horizontal application of the Right to Privacy:
Justice Kaul is the only judge who refers to the protection of the right against non-state actors. He held that there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors in addition to the need for protection of such information from the State. Privacy is a fundamental right, which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. This is particularly an important issue facing the trans community as they face a serious amount of violence at the hands of private actors – family members, employers, neighbours and the society that discriminates against them on the basis of their gender identity. This is a huge step and the development of the right to privacy against private persons needs to be developed judicially.

Conclusion and Learnings:
While we should celebrate and savour the gains of at this far-reaching judgement, what the learnings? As a  women’s rights and transgender rights activist and lawyer, I find this judgement points out the need for the gender rights movements to align with other social movements and the interconnectedness of rights. The privacy rights battle in the context of Aadhaar was a battle that the LGBT movement and the women’s rights movement had not engaged with. We are incredibly fortunate that we had a Court that rose unanimously in favour of declaring proudly the rights to sexual orientation and gender identity but this should only strengthen our resolve to work for the protection of rights across movements, of class, gender, caste, disability and religion if we want to strive to protect diversity and difference.

The stakes involved in this simple point are difficult to overstate. The Central Government and other BJP ruled states argued there was no constitutional right to privacy. Instead they stated that the right to privacy was a common law right or a statutory right, meaning that they could take away that right merely by passing a legislation – a legislation like s. 377 of the IPC. But in holding that the right to privacy was a constitutional right, the government now has to meet a higher standard in order to legitimately restrict the exercise of that right. Had the government’s view prevailed, there would be no space or choice that would be free from government intrustion. With a mere majority vote, the government could legitimately take away the right to privacy of citizens. Thankfully because of this judgment, this is not the case.

While the history of this case has roots in democratic opposition to the imposition of surveillance technologies such as Aadhar, this case has a direct impact on the 377 case currently pending before the Supreme Court.

The most obvious interlink between the two cases is Justice Chandrachud’s judgment in the Right to Privacy case, where he criticizes the Supreme Court’s reasoning in the Naz Foundation case. In the Naz Foundation case, Justice Singhvi (who authored the judgment) proceeded on the footing that there existed a fundamental right to privacy, but that the constitutional protection was not extendable to LGBT people. He reasoned that LGBT people constituted a “miniscule fraction” of India’s population and that in the 150 years of its existence, 377 has only been officially used less than 200 times against adults. In other words, Justice Singhvi argued that the Constitution could not be concerned with the small population of LGBT people and that the prosecutions under s. 377 were too scanty to merit any serious constitutional considerations.

Justice Chandrachud’s leading judgment pilloried the logic of Justice Singhvi’s argument. First, that of fundamental rights in a democracy are meant to protect minorities from majorities. It makes no sense to say that some populations are too small or too reviled to have fundamental rights. Fundamental rights are not some a popularity contest. They inhere in all persons regardless of who they are. Secondly, Chandrachud pointed out that the fact that there were only about 200 prosecutions under s. 377 was of little consequence. He argued that a violation of a fundamental right does not become tolerable because only a few people’s rights were affected. Chandrachud argues that to test the constitutionality of s. 377 one does not have to look at its direct application (i.e. prosecutions) but rather its “chilling effect on the exercise of fundamental rights.”

In the pages where he discusses the Supreme Court’s Naz Foundation judgment (which he brackets along with the court’s infamous ADM Jabalpur judgment, which upheld the suspension of Fundamental Rights during the Emergency), Chandrachud echoes the language used by the Delhi High Court in its Naz Foundation judgment. He holds that “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.” As Justices Shah and Muralidhar did in the Delhi High Court, Chandrachud here places sexuality and rights in a common framework, thus laying down the foundation for overruling the Supreme Court’s Naz Foundation judgment.

More generally, the Supreme Court’s right to privacy judgment, reaffirms the principles of privacy that Naz Foundation and Voices against 377 invoked before the High Court and the Supreme Court – that privacy was about people not places. Meaning, that while the right to privacy may have spatial dimensions, it was centrally about preventing one from interfering in the daily life choices of another. As Justice Chamleshwar stated in this case “I do not think that anybody would like to be told by the State as to what to eat or how they should dress or whom they should be associated with in their personal, social or political life…”

The claim to the right to privacy is not just essential to claiming a space away from the public eye. In order to live and flourish in a democratic society, people need to be able to go about their daily lives without interference from state or society. As invoked in the Naz Foundation case, the right to privacy was not just about protecting the bedroom from the state. It was fundamentally about the ability to participate in public life without interference from any person or any institution.

According to Anjali Gopalan (the director of Naz Foundation) and Justice Shah, yesterday’s Right to Privacy judgment severely undermines the Supreme Court’s Naz Foundation judgment, and it would seem like the next logical step would be to overturn the SC’s Naz Foundation decision. I would agree, but would include the following caveats.

Firstly, the Supreme Court is a Janus-faced institution. Justice Chandrachud who yesterday waxed eloquent about the autonomy of the individual and the right to privacy, is the same Justice Chandrachud who gave the order in what has become known as the ‘love jihad’ case. In annulling the interfaith marriage and endorsing a pernicious piece of right-wing propaganda, Justice Chandrachud denied the autonomy and privacy of an adult woman and returned her to the custody of her parents. So notwithstanding the idea of precedent, the Supreme Court can say one thing today, and another tomorrow.

Secondly – and more legally – all fundamental rights, including the right to privacy are subject to reasonable restrictions. The Court could still find that the reasons offered by the government in the 377 case – protection of public health, or public morality – as legitimate reasons to infringe the right to privacy.

That said, the Supreme Court has in this judgment has affirmed a constitutionally protected right to privacy. The right to privacy is imagined not just as a negative right over certain spaces, but as the right to move freely in society, and as a right to participate in everyday life. The establishment of this fundamental principle, is a victory not just for LGBT people in India, but for all people who choose to act or think differently. It is a huge victory for the shrinking democratic spaces in this country.

The Right to Privacy judgment [PDF link here] earlier today in no way changes the status quo in relation to Section 377. That provision continues to criminalise homosexual sex, and this will not change until the Supreme Court overturns its own judgment of 2013 (Koushal), or if Parliament acts to remove the section from the Indian Penal Code.

Yet, today’s judgment makes some critical observations, which could help in the removal of Section 377. The court recognises its own error, describing the Koushal judgment and some of its reasoning as “flawed”, “misplaced” and the sort that “cannot be accepted”. It further states that the Koushal judgment is a “discordant note which directly bears upon the evolution” of understandings on the right to privacy by the Supreme Court over the years.

What this signals is that the four judges who affirmed these statements (the other 5 judges agreed but with different reasoning and wrote separate individual supportive statements) believe that Koushal and the validity of 377 need to be seriously reconsidered.

On 377 the judgment also says that, “Consequently, we disagree with the manner in which Koushal has dealt with the privacy–dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”

Most significantly, in the concluding portion of this main section of the judgment the Supreme Court lays down the law on privacy, stating that, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

DISCLAIMER 1: This article presents general musings on the law. This is not meant to be a legal white paper or reference guide, but more as a resource for awareness of the options available to the community. For specific legal guidance, please consult a lawyer.

DISCLAIMER 2: Legality, morality and social acceptance are different aspects. Just because something is not illegal, it does not mean that the society around you will accept or tolerate certain acts or situations. Please exercise caution and use your own discretion and judgement to gauge your safety within the socio-cultural environment of your locality/community.

There have been a few recent incidents that have highlighted the confusion among the general public, and among members of the queer community about the legality and illegality of certain situations. In April 2017 there were reports of a police sub-inspector in Punjab getting married to her partner. In July 2017 there was an incorrect report of a marriage between two women in Bangalore. Are such marriages illegal? Can you be arrested for using gay dating apps? What rights does one have if they are being harassed by cops, family members or exploiters because of their gender identity or sexual orientation? Does the queer community even have any protections in the law?

The laws pertaining to queer India, like Section 377, are filled with ambiguities. While the laws themselves may not be used to convict or persecute, the mere presence of them causes fear and anxiety in the queer community, which fuels power to real criminals like extortioners, harassers, rapists, abusers etc. The law has been used to oppress the community, sometimes even by the police themselves or by the own families of queer individuals. In this murky climate, the knowledge of the law is a more powerful safeguard than the very laws which are meant to protect us (in some cases indict us).

Before we get into specifics of our situations, let us understand a principle; “Not being legal does not equate to being illegal”. When something is illegal, it means that there is a provision in the law that specifically prohibits it and makes it a crime. For something to be legally validated, there should be a provision in the law which allows it or regulates it (for example selling a property is regulated by Transfer of Property Act). Now, there is an in-between scenario where there something is not illegal, while – at the same time – there is no law that governs it or regulates it, and it is not a crime. One example is the use (buying/selling/trading) of the bitcoin currency. It would not be illegal unless there is a law that specifically prohibits it, at the same time there is no legal law/authority to regulate the trading of it – which makes it legal but unregulated.

Let’s look at the legal situation for queer Indians in four brackets – Allowable Activities (not illegal – ideally cannot be convicted for), Activities not allowed (because of not having legal provisions), Illegal/Criminal activities (activities you can be convicted for under the current laws), and Legal protections available to individuals.

I. Allowable Activities in the current legal context

Ideally, you cannot be arrested/convicted for any of the following:

I.A. Gender Identity, Gender Expression and Sexual Orientation

– Being open about your gender identity and/or sexual orientation: There is no law today that criminalizes one’s identity of being Gay, Lesbian, Bisexual, Transgender, Queer, Intersex etc. Revealing that someone is a gay man only means that he is (mostly/exclusively) interested in other men: it does not necessarily equate to an admission of the sexual act with a man (which will anyway require evidence to incriminate – Read Section III for more). There are hundreds in India who have come out loudly and openly in print, visual, social media. Bottom-line, one cannot be arrested for coming out and being open about their identity.

– Expressing oneself in any gender or attire (gender-affirmative dressing, cross-dressing etc): “All persons, not just adults, have the right to dress in the attire they choose. This is a fundamental right as per Art. 19(1)(a) and affirmed by the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.” (Shukla, pers. comm.)

Para 62 hereunder states: “Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”

Caution: Though this is not illegal, expressing oneself by dressing or other mannerisms in a way that may not be perceived as acceptable by mainstream society, may provoke violence, especially against visibly gender non-conforming or non-binary individuals.

– Undergoing gender affirmation surgery or procedures at hospitals/clinics: Gathering Information or accessing gender affirming surgeries (formerly sex reassignment surgeries) and related procedures such as endocrine therapy  is a matter of right under the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.

– Legally affirming gender in official identity and documentation: Applying for Gender/Name Change (better put as affirmation) in Government Documents (e.g., Passport, Election Card, Educational Certificates is a matter of fundamental right under the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.

I.B.  Right to Personal Freedom

– Watching/reading gay porn in private, storing gay porn on your laptop is not illegal (except child porn), publishing porn is illegal. Watching/reading anything pornographic in private, possessing pornographic literature are not offenses under the law, as long as it doesn’t involve pedophilic porn (child porn). However, acts of publishing and transmitting any sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.   [Section 67A, Information Tech, Act, 2000]. Section 67B criminalizes browsing, downloading, creation, and publishing child pornography. Child anime porn is also explicitly criminalized.

 – Using dating apps: There is simply no law to regulate dating/hookup apps allowing their users to find matches for same-sex sexual intercourse/socialization. Hence, their usage is not illegal per se. However, with malicious intent, these acts might inadvertently make gullible users susceptible under section 377, IPC (See Section III).

– Meeting people and going for casual dates: Meeting people/going on a casual date/blind date is completely legal as there is no law that bars such an act. Also, meeting people is an act guaranteed as Right to Freedom of Assembly under Article 19(1)(b), which is a fundamental right under the constitution.

– Holding hands or hugging in public is not illegal though it might provoke violence or harassment from cops or others. Holding hands and hugging could be considered a guaranteed fundamental right as Right to Freedom of Expression under Article 19(1)(a) of the Constitution. However, kissing in public could be considered an offense under Section 294, IPC as an obscene act. However, it is often found that prosecution of such offenses fail as it is very difficult to establish “annoyance to public” which is the most important ingredient for this offense to have been committed. [references could be made to the judgment of the Delhi HC in A and B vs. State of NCT of Delhi, (25.05.2009 – DELHC) MANU/DE/0768/2009].

I.C. Partners, Relationships and Romantic Freedom

– Living together with your partner(s) of any gender as long as they are adults: Adults (persons more than 18 years of age) living consensually together in private premises is not an offense. See Arasu and Thangarajah (2012) for a discussion of how kidnapping charges are often levied by parents against the same-gender partners of their queer daughters: in cases like these, demonstrating that the individuals are adults and living together consensually is critical.

– Renting an apartment together and having a rental agreementFor rent agreements, there is no prescribed legal format which mandates the tenant(s) to disclose their relationship.

– Conducting a same-gender marriage ceremony/reception –Exchanging rings or solemnizing marriage through vows/rituals, with or without the presence of a priest, between persons of the same-sex is not a criminal offence. It is just that the law may not recognize such marriages as legal marriages, but that doesn’t make them illegal either.

In fact, Ruth Vanita has also argued a point that same-gender marriages could be legal (Vanita, 2005, in Shukla pers. comm.)  “The Hindu Marriage Act allows for a marriage to be solemnized as per customary rites (S.7)”, says Shukla. This means that if as per the customs of one of the parties, same sex couples were wedded, it could be argued that such marriages are legal. In reality, there is no judgment wherein, any court has ever validated any such custom on such a matter or otherwise. See Narrain and Ohdedar (2011) for a legal perspective on same-sex marriage in India.

Whatever be the deal, conducting a ceremony is not illegal – just as throwing a birthday party or house-warming party isn’t.

– Sharing pictures of you and your partner/your marriage ceremony:Sharing pictures of you and your loved ones (friends or partners) online/offline is not an offense. Do be cautious that sharing pictures publicly might prompt haters to gather evidence to indict you under Section 377 (Refer Section III).

– Buying a property as co-owners – subject to rules of apartment / society: Buying a property as co-owners is legally possible. Accessing joint home loans is also possible, but in most cases the Banks discourage such practices. However, there are no explicit law that disables any person(s) to apply or avail home loan jointly. There are ways to get around this law.

– inheritance as part of a will (preferably a registered will): “There is no bar on willing away one’s self acquired property to anyone. The person need not be related to the maker of the will. After all, people do will their property to charities/causes etc.”  (Shukla, pers. comm).  However, do note that if, the legal-heirs of the deceased (testator) may always go to court claiming the invalidity of such a will – and then the issue gets complicated.

I.D. Freedom to participate in and organize queer events

– Participating in pride parades, queer film festivals or gay/queer parties: Participating in Pride Parades, Queer film Festivals, cultural events or parties is a matter of a fundamental right guaranteed by the constitution as a Right to Freedom of Expression and peaceful assembly under Article 19(1). The onus is on organizers to take the requisite permissions for conducting the event,

– Organizing a queer pride parade – Organizing a pride parade is legal (similar to holding a rally/march). Permissions need to be sought from local municipal body, civil and traffic police, on the specified route approved by them. This has religiously been followed by pride organizers across India. The police though has very vague/broad powers to not allow or stop an ongoing programme under Section 144 of Criminal Procedure Code, 1973 and under the respective State Police Acts.

– Organizing a queer film festival – It is just as legal as organizing any other national or international film festival. There are specific rules that apply for public screenings and private screenings of films. Please reach out to organizers of popular queer film festivals for more details.

– Organizing gay/queer parties – Queer parties are as legal as any other parties. Like organizing a party at any other party venue, permissions should be taken, and the local municipal laws must be abided by. Local municipal laws may restrict localities, timings, alcohol service, noise decibel levels, number of persons etc. Needless to say, it is illegal to possess or distribute illegal drugs during any such parties.

I.E. Other acts

– Money in exchange of sexual services: The law is vague on sex work itself, and tends to conflate sex work with trafficking. In India, sex work (the exchange of sexual services for money) is legal, but a number of related activities, including running a brothel, living on earnings of sex work, procuring, inducing an individual or detaining them for prostitution, with or without consent, sex work in areas notified by police and near public places and soliciting are crimes, as per the Immoral Traffic Prevention Act [1986 amendment of the original 1956 Act]. The 1986 Amendment also made the Act gender-neutral, replacing “girls” and “women” by “persons”, thereby bringing cis-men and trans persons within the ambit of the Act.

It is not clear if online solicitation though dating apps or websites is illegal or not.The clients can be punished for sexual activity at or close to a public place (or notified area).

II. What is not possible in the current legal context

– Same-gender partners legally being recognized as married spouses: Same-gender partners are not recognized as legal spouses in the absence of a law allowing same-gender marriage or union. The rights available to married different gender (“heterosexual”) couples are not available. Since there is no marriage or legal civil union, there is no question of divorce.

– Being recognized as spouses for life insurance (possible but tricky): There appears to be no restriction on nominating anyone one desires as a nominee under an insurance policy as per the Insurance Amendment Act (Shukla pers. comm). However, nominating unrelated parties (since the partner is legally unrelated), that is, those who do not have an insurable interest in the life of the insured increases the risk for the insurer. Therefore, insurance companies usually avoid registration of unrelated parties as nominees, and it is almost impossible to negotiate such a deal with them.

– Being recognized as spouses/family for medical insurance: Same-gender partners are typically not covered under a family medical plan. However, some progressive companies in India have managed to provide this under their corporate group insurance policy. See this video from the Diversity Dialogues series for some options.

– Being able to sign as next-of-kin in a medical emergency: Same-gender partners cannot take legal decisions with respect to the medical condition of their partners, or sign the dependent forms in hospitals.

– Being considered as a legal-heir (in the absence of a will): if a person dies before making a will, then as per the laws on succession, the property of the deceased by default is succeeded by the legal-heirs of such deceased, i.e., persons who are related by birth or marriage (heteronormative-kinship ties). Same-gender partners are not considered as legal surviving heirs.

– Opening a joint account as spouses: Since there is no legally recognized relationship between same-gender partners banks will not create joint accounts. However, there are other juggaads to do this (If you can’t create a family entity you can always create a business entity!)

– Acquiring a joint home loan: In most cases the Banks discourage such practices. However, there are no explicit law that prevents any person(s) from applying or availing of home loans jointly. There may be (difficult) ways to get this done.

– Adopting children as a same-gender couple. Joint custody of a child is not possible. Though adoption is possible as a single individual, there are many rules.

– Surrogacy as a couple or as a single individual – It is still not clear whether it is legal/illegal, as there is no law in effect to address this at the moment. So, technically, it is still possible, but it appears  very difficult under the current governmental regime as surrogacy – both as a single individual or a same-gender couple – may not possible as per amendments proposed in the law in 2016, where homosexuals were specifically called out and excluded from access to surrogacy. However, the Surrogacy (Regulation) Bill, 2016, is yet to be passed by the Parliament.

III. What IS illegal / crime (you can be arrested for)

Section 377 of the Indian Penal Code criminalizes sex “against the order of nature”, even if it is consensual and private. This covers anal sex, oral sex, etc. The Criminal Law (Amendment) Act of 2013 included non-consensual oral and anal sex of the “heterosexual” variety in its definition of rape (Ramakrishnan, pers. comm.) Thus, same-gender acts alone, whether consensual or not, continue to be considered a crime under 377/

There needs to be evidence of such an act happening between two individuals for getting convicted under Section 377. Now, if someone with an intention of malice tried to indict someone under section 377, they would have to collect evidence of the sexual act. Unless the victim is caught having sex in public, the perpetrator would have to themselves violate one or more laws to gather such evidence – such as trespassing into the victim’s private space etc.

While convictions haven’t happened (unless in the case of non-consensual acts and child sexual abuse) – intimidation, blackmail, harassment, unlawful detention and arrests by the police do happen. Queer support organizations can help individuals in such situations. Refer to the next section on legal protections available.

IV. Legal protections available to queer individuals

– Protections under the NALSA judgement:

A two-judge bench of the Supreme Court of India, after hearing the petition filed by the National Legal Services Authority, passed a historic judgement on Transgender Rights on April 15, 2014. Detailed coverage of this ruling is available on Orinam here.

Quoting from Lawyer’s Collective, “The Supreme Court also firmly secured the right to equality and equal protection for transgender persons under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity. It has broadened the scope of the term ‘sex’ in Articles 15 and 16, which till recently   meant   biological   sex   of   male   and   female,   to   include ‘psychological sex’ or ‘gender identity’. Significantly, the Court also declared that no one can be discriminated against on the ground of sexual orientation.”

– Section 388 and 389 of the IPC

Sec. 388. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.—Whoever commits extor­tion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be one punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 389. Putting person in fear of accusation of offence, in order to commit extortion.—Whoever, in order to the committing of extor­tion, puts or attempts to put any person in fear of an accusa­tion, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 388 thus covers  instances in which in which extortion is actually committed after putting a person in fear of being accused of an offence such as Sec 377 that carries with it a large punishment. Sec. 389 covers situations in which actual extortion does not occur,  but the extortioner puts a person in fear of being accused of an offence such as Sec 377 (Shukla pers. comm.)

Essentially Section 388 and 389 can be used against persons found guilty of extortion/harassment or attempts to do so, in relation to accusations that relate to Section 377. Punishment for extortion under Section 377 is explicitly called out in both sections. See Suraj Sanap’s detailed discussion on Sec 389 in Gaylaxy magazine here.

 – Blackmail/Extortion/Defamation for outing a person

The regular laws for blackmail and extortion could typically be used against perpetrators claiming to ‘out’ queer individuals to their families, workplaces or in public media, if it could be argued that the intention was to create a fear of injury to the person’s reputation. One could also explore filing a defamation (Sec. 499) case for the same.

In case money or valuables are demanded – robbery or other forms of extortion under Sections 385-387, IPC can be helpful.

In case images are being used – Section 292-A – printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail.

Read a detailed resource on dealing with extortion on Orinam here.

 – Protection of Women from Domestic Violence Act (PWDVA), 2005

The Protection of Women from Domestic Violence Act, 2005, includes with in its ambit physical, mental, emotional and sexual violence perpetrated by family members. It can be potentially be invoked against parents of queer cis women (and, arguably, of trans masculine persons whose assigned gender at birth was female) if the parents are forcing their female-assigned adult offspring to marry a man. In cases where the individual is not out about being queer/trans, the fact of being forced to marry suffices for relevance, and the sexuality/gender identity of the individual need not be offered as a reason (Ramakrishnan, pers. comm.)

– Can workplaces fire individuals for their gender identity or sexual orientation?

While, we have labor laws that can generally protect against unfair dismissal of employees from service without valid reasoning, there is no specific protection in labor laws for individuals fired specifically for being queer.

However, the NALSA judgement does mandate equal opportunity and protection to transgender individuals in matters of employment. As Surabhi Shukla says, “Paras 58 and 59 of the NALSA judgment say that dismissal from employment on grounds of non-conformity to stereotypical generalization of binary genders are protected under Art. 15 and 16.”

In his summary of the NALSA judgement Danish Sheikh writes “The Court maintains at several points that discrimination on the basis of sexual orientation and gender identity is violative of fundamental rights. While it maintains at   different   points   that   its   analysis   is   limited   to   the   transgender   community, statements like these have the potential to be used for pushing for non-discrimination and relationship recognition provisions for the LGBT community as a whole. Even within the category of gender identity as a ground for discrimination, the Court notes that the right against sex discrimination stands “to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.” This   reasoning   can   be   used   to contend against discriminatory workplace behaviour against men and women who don’t conform to gender stereotypes of being attracted to persons of the opposite sex, amongst other applications”

There are many progressive employers who are starting to create anti-discrimination policies and equal opportunity policies that specifically include sexual-orientation, gender identity and gender expression. Queer individuals must start reviewing such policies before joining organizations and understand if their workplace would truly protect them from discrimination on the grounds of being queer.

While there is still a long way to go before which queer individuals can claim to be equal citizens of this country, we should not take for granted the freedom we already have. We must not overlook our own privileges, compared to some of our brethren in many parts of the world.

It is said that Knowledge is Power. This knowledge of the law will help us stand up against our oppressors, or find our way out of tricky situations. Here is a wonderful short film that shows how an empowered and enlightened mother can stand up for her [possibly] queer child.

More queer power to all!

Credits: The authors would like to thank Surabhi Shukla and L. Ramakrishnan for their review and points referenced in this article. This article originated in a post by Ritesh Rajani in the Facebook^TM group of the Bangalore-based queer collective Good As You.

Request: Lawyers, legal researchers and individuals experienced in crisis support are invited to add (caveats) to this compilation by leaving replies in the Comments section below.

References and Further Reading:

Arasu, Ponni and Priya Thangarajah. 2012. Queer Women and Habeas Corpus in India: The Love that Blinds the Law. Indian Journal of Gender Studies. Vol. 19(3), page(s): 413-435
DOI: https://doi.org/10.1177/097152151201900304

Narrain, Arvind and Alok Gupta. 2011. Law Like Love: Queer Perspectives on Law. Yoda Press 650 pages.

Narrain, Siddharth and  Birsha Ohdedar. 2011. Same-sex marriage and other queer relationships in India: a queer perspective. ALF and Orinam. https://new2.orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-india/

Vanita, Ruth. 2005.  Love’s Rite: Same-Sex Marriage in India and the West. Palgrave Macmillan US. Hardcover ISBN 978-1-4039-7038-1 Softcover ISBN 978-1-349-53208-7

The study is part of Sharanya’s senior thesis being supervised by psychology professor Dr. Chandra Mason, and has received ethics approval from the Mary Baldwin University Institutional Review Board (Protocol #1617-21). The study has taken all steps to protect the rights of research participants.

Inclusion criteria: Any non-pregnant adult (>=18) of Indian origin, regardless of citizenship or current residence.

Incentive: The first 100 individuals to complete the study have the opportunity to receive a Rs. 200 recharge for their prepaid phone.

For more information, go to the information sheet and consent form at https://marybaldwin.co1.qualtrics.com/jfe/form/SV_79Grt2cmpATwGeV

Asmita came out to herself at age 12, while a student in her hometown in Bardhaman. Growing up, she internalized prevailing notions that homosexuality was unnatural. “But later when I started gaining more and more knowledge, I started understanding and getting my identity clear”, she says.

A national-level badminton player and photography enthusiast, Asmita has been actively involved in campus activism around gender-based discrimination.

When asked about her decision to represent AISA, she said “AISA gave me a platform to uphold my identity in front of the students of JU”, noting that Left parties had, by and large, responded positively to LGBTIQ+ issues. Incidentally, the first reported out LGBTIQ+ candidate, JNU’s Gourab Ghosh, also contested as a Left party candidate in 2013.

As a key election issue, Asmita is championing the cause of LGBTIQ+ acceptance in society, both on- and off-campus. She wants to counter myths that same-sex desire and transgender identities are unnatural, and to mobilize public opinion against Section 377 of the Indian Penal Code. She strongly feels that basic sex, gender and sexuality education, including LGBTIQ+ issues, should be given to school-going students. She asks that admission in educational institutions be accessible to all, based on their aptitude, with no discrimination based on gender identity or sexual orientation.

Asmita said that JU is relatively LGBTIQ+ friendly as Indian university campuses go, and she has not personally faced any problem on campus due to her identity. She noted that transgender people face much more difficulty. She also questioned the prevailing practice of marking all transgender people as “third gender” on admission forms, a category that not all identify with.

Other issues in Asmita’s election manifesto include proper functioning of the Gender Sensitisation Committee against Sexual Harassment (GSCASH) on campus, and 24×7 availability of sanitary napkin vending machines in all women’s restrooms.

Her accomplishments notwithstanding, Asmita has a long way to go. She is not yet certain about the profession she would take up in the future. Her parents still do not accept her. “I still need to struggle with my family and in neighborhood to [get them to] cope with my identity”, she signs off.

* Readers: please let Orinam know if there have previously been any other out queer women students contesting campus elections in India.

A comprehensive list of Orinam blogposts on educational institutions and LGBTIQA+ issues is at https://new2.orinam.net/resources-for/educational-institutions/from-the-blog/.

The Writ Petition by Dr. Akkai Padmashali and others, is similar to the Writ Petittion (Criminal) No. 76 of 2016 [Navtej Singh Johar v. Union of India] in challenging the constitutionality of Section 377, in the sense that the petitioners are directly affected by the Section.

However, it makes the case more persuasive by arguing that the constitutional protections set out by the Supreme Court in National Legal Services Authority Union of India, (2014), protecting the fundamental rights of the Petitioners as transgender persons under Articles 14,15, 19 and 21, are violated by Section 377 of the IPC.

The petitioners have asked that a constitutional Bench of the Supreme Court decide on the constitutionality of Section 377.

Read the petition Akkai_vs_UOI_2016 here. It has been drawn by Jayna Kothari, Varsha Iyengar, and  Rohit Sharma, and filed by  O.P. Bhadani, Advocate for the petitioners.

It has been referred to the CJ.