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 Supreme Court judgment delivered by Justice KS Radhakrishnan Panicker and Justice AK Sikri on April 15,2014 was widely celebrated as a landmark judgment that upheld the right of trans people to self identify our gender as male, female or third gender irrespective of gender affirming surgeries or hormonal therapy. This right to self identify gender without medical interventions or certification is not unique and has international precedent in New York, Malta, Colombia, Argentina, Denmark, Italy, Ireland and Ecuador. The judgment was to be implemented in six months. As is typical in the world’s largest democracy the implementation never happened due to various departments and ministries of an apathetic government playing a lethargic game of ping pong with the judgment.

In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. Though it was passed unanimously in the Rajya Sabha, it disappeared into a Bermuda triangle situated someplace in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment put up a draft of The Rights of Transgender Persons Bill, 2015 and sought comments from the public to be sent by January 2016. Many trans led groups sent recommendations to this draft, none of which was taken into account by the Ministry when they drafted the more draconian The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2, 2016. Again, trans led groups and legal advocacy groups sent recommendations and some groups deposed before the Parliamentary Standing Committee in a bid to educate them.

On July 21^st, 2017, The Standing Committee on Social Justice and Empowerment chaired by the BJP Member of Lok Sabha, Ramesh Bais, and composed of 17 Lok Sabha Members and 10 Rajya Sabha Members, presented its 43rd report on the TG Bill 2016.

The 43^rd report on the Transgender Persons (Protection of Rights) Bill, 2016

My first reaction on reading the report was gagging, followed by laughter, frustration and sadness – in that order. Then, I kicked myself for holding onto a shred of belief that the Brahmanical state ever intended to extend any rights to trans or intersex people. Inspite of all our efforts to educate the Standing Committee, the report relies heavily on the imagination of trans people as Hindu mythical creatures like Ardhanareeswara. The report begins with “Eunuchs are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Their fortunes are determined to a large extent by their looks. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups. India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today.”

The committee believes that trans/intersex people [it is unclear who they are referring to when they use the derogatory term “eunuch”] are peculiar to the South Asian context. It’s amazing that they have missed out on the transgender tipping point in the West in-spite of the power of globalised American news! Clearly, the committee is also ignorant of the fact that in January 2016, the Karnataka government submitted to a high court Division Bench comprising acting Chief Justice Subhro Kamal Mukherjee and Justice Ravi Malimath that it will remove the word ‘eunuch’ from Section 36 A of the Karnataka Police Act. This follows a PIL that was filed by the Karnataka Sexual Minorities Forum which sought to declare Section 36A of the Karnataka Police Act as unconstitutional.

It is ironic that while using the derogatory term “eunuch”, the committee points out that the term “hijra” [used commonly as a term of self identity among many trans women] carries with it “an obvious sense of denigration”.

The report goes on to say “Eunuchs lived fairly secure lives working as domestic ‘girls’ in the homes of wealthy people and by performing during numerous ritual ceremonies. This role of eunuchs ended with the advent of the British rule and abolition of many kingdoms. Eunuchs were left with no means of supporting themselves. Hence, they exist in this pitiable condition in the Indian subcontinent“. Such conclusions lacking any sociological or historical basis wouldn’t pass muster even in the term paper of an undergraduate student in any of the universities in India. But clearly, the Ministry believes that the golden period of trans/intersex people in the subcontinent was destroyed by the British, instead of our collective disempowerment being the result of various factors like caste, patriarchy, state apathy, transphobia, lack of awareness,public prejudices etc in addition to the criminalising laws of the colonial empire and the nation state. In a couple of days, the Indian Brahmanical state will celebrate 71 years of independence, but still not take responsibility for the condition of its own citizens.

A summary account of the Ministry’s ignorant farce

• Definition of transgender persons

The ministry has pinned down the definition of transgender persons as –

(A) neither wholly female nor wholly male;
or
(B) a combination of female or male; or
(C) neither female nor male.

The portion of the draft bill which included a definition of “those whose sense of gender does not match with the gender assigned to that person at the time of birth and include trans-men and trans-women, persons with intersex variations and gender-queers” has been struck down by the Ministry. They cite the reason that any person could claim that their gender doesn’t match that which is assigned to them and the screening committee would have no way to judge or certify.

They claim that widening the scope of the definition would open it up to misuse! Why any person would fake being a trans person given that there are no real welfare schemes being proposed and given the many social disabilities that come with such an identity is indeed baffling. 

• Process of issuing gender identity certificates

A trans or intersex person would have to apply to the District Magistrate, who, on the recommendation of a district screening committee following a physical examination [constituted by the Chief Medical Officer,District Social Welfare Officer with 5 years experience working with trans communities/renowned person in the field of transgender welfare in that district, a Psychologist or Psychiatrist, a representative of transgender community and an officer of the appropriate Government to be nominated by that Government] will be certified only as transgender. On the basis of this certification, it is proposed that all the identity cards like voter id, adhaar card etc will be changed, effectively making us all carry the burden of being trans everywhere, all the time. Needless to say, this denies the right of trans people who identify within the binary our basic constitutional right to equality and liberty, a right that is upheld by the NALSA judgment.

The committee in the report, points out that a physical screening process is demeaning and in violation of the Supreme Court judgment and the constitution, but then, quickly backtracks and agrees with the ministry when the latter insists on this humiliating procedure as being necessary to prevent misuse.

“In case the person requires a re-issue of the certificate after gender affirming surgeries, on production of certificate from a competent Medical Officer regarding their SRS, the District Magistrate shall, suo-motu, issue them the revised certificate regarding their being either a trans-man or trans-woman.” On the second revision of the certificate, post surgery, the committee recommends that a physical examination need not be done again. The committee says transgender persons “no doubt, are reluctant to undergo physical examination in front of the District Screening Committee for obtaining a certificate of a transgender person in the first instance. The Committee wonder why will then the same person would apply again for a certificate and undergo the same procedure which he went earlier.” It is clear that the committee understands that physical examination is a gross violation of our bodily autonomy and that we would be “reluctant” to say the least. But still, like a school child who has no option but to agree with the authoritarian teacher, they continue to nod farcically and agree with all the regressive methods proposed by the ministry. Who would moreover, voluntarily go through this process a second time to change a certificate which is issued as “transgender only” to “trans man/ trans woman”? What practical sense does that make?

• Conflation of trans and intersex categories

The recommendation of the committee to rename the bill “The Transgender and Intersex Persons (Protection of Rights) Bill, 2016 was shot down by the Ministry which believes that “Transgender is an umbrella term which includes intersex persons also. Re-wording the title of the Bill would not serve any purpose“. The committee is quickly convinced by this view and agrees with the Ministry in the report. This, inspite of hearing a brilliant, in person deposition by Sampoorna working group team, intersex activist Chinju Ashwathi in which he patiently answered intrusive and inappropriate questions from the Parliamentary standing committee in December 2016. This, inspite of multiple attempts both in person and in writing to educate the standing committee on the differences and overlaps between trans and intersex categories.

• Definition of discrimination and grievance redressal

Though the standing committee has recommended that a definition of discrimination be included and its scope be expanded to include acts by public and private institutions and for a proper redressal mechanism to be put in place, the Ministry has cited the toothless, advisory body of the proposed National Council of Transgender Persons as the grievance redressal authority. To add insult to injury, it says “the mechanism of Indian Judicial system is robust for taking care of any violations of the Act either by a person or an Establishment.” There is a glaring absence of any laws to protect trans communities and justice under the current brahmanical judiciary is inaccessible for oppressed sections like dalits, adivasis, lowered caste/class muslims, Kashmiris fighting for self determination and trans people across caste. Given this scenario, the ministry is surely inhabiting a parallel universe to call the judicial system a “robust” one.

• Discrimination in employment

The bill says that no transgender person should be discriminated in any matter relating to employment, and provides for the setting up of a Complaint Officer in every establishment (with 100 or more persons). There was no response from the ministry on what the powers of the complaint officer would be or for bringing the private sector and unorganised sector under the purview of the bill. When asked why organisations under 100 member strength could not be brought under this provision, the Ministry opined that “It is not practically feasible for small establishments to designate a Complaint Officer. However, the mechanism of police system is robust in India for taking care of such grievances“.

The ministry thus callously brushes aside recommendations that have been feasible on paper for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. So clearly, the issue is lack of will and not feasibility. The mechanism of the police system in India is “robust” in only murdering trans women like Tara and criminalising and raping trans women. It seems like a cruel joke to call those very perpetrators our protectors.

• Retention of transgender/gender non conforming children with immediate family

The bill states that transgender children be allowed to stay only with natal families and that if the immediate family is unable to care for the child, on the order of a competent court, the child should be placed in a rehabilitation centre. The committee recommended that hijra families of adoption should be recognised as a lot of young trans people leave natal families due to violence and have only hijra families for support. The ministry however struck down the recommendation by claiming that “parallel systems” cannot be allowed to exist and that if this is allowed the bill will have no meaning for the transgender community! The ministry also further said ,”as long as Transgender Person is a child, he/she should not have a choice to reside other than the household where parent or immediate family reside as it would increase the chances of his physical and sexual abuse”. It would be naive to believe that the ministry is not aware that the most sexual abuse across genders are instances of incest within natal families. To claim that there would be increased chances of physical and sexual abuse in a matrilineal hijra system than in natal families is an improbable and ignorant hypothesis. Of course, there may be hierarchies and instances of violence within hijra families like any other, but to de-legitimise as “parallel systems” our families of choice that exist as sole survival, support systems when traditional ones have failed us miserably is brutal.

• Livelihood schemes and employment opportunities

When the Committee asked for specific schemes and programmes in the Bill which are being provided by the Government to support livelihood of the transgender persons, the Ministry replied that “it is not possible to put everything in the Bill as the same is derivative in nature”.

• Education, social security and health of transgender persons

The committee recommended a definition of inclusive education, acts that discriminate trans students in educational institutions, an obligation on the part of private educational institutions akin to Right to Education Act, 2009, educational programmes on trans issues, employment schemes, career counselling, review of medical curriculum and health insurance coverage among other things. However, there was a deafening silence from the Ministry to all these points.

• Criminalisation of begging

The bill states – “Whoever, compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The ministry voiced its concern that though “well intentioned”, this might be used to harass and criminalise trans people who beg of their own volition or due to lack of employment opportunities. The ministry however responded in an off handed manner that skill training will be given once the Bill is passed.

• Reservations under economically and socially backward category in employment and education.

The committee has mentioned this under the miscellaneous section at the end of the report inspite of it being clearly stated in the Supreme Court judgment that trans people should be considered socially and economically backward and must receive affirmative action. Several trans led groups had also asked for a caste based reservation within the proposed trans reservation to ensure the more marginalised among us are not further sidelined. But there was no comment from the Ministry for this point among many others like penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants, marriage, adoption, partnership rights etc.

• Proportionality in punishment for crimes

The bill provides for a punishment of only imprisonment for a term which shall not be less than six months but which may extend to two years and with fine for whoever denies trans persons public passage or access to public places, forces a transgender person to leave a house-hold, village or other place of residence or harms/injures/endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. In a broad sweep, the bill mentions a range of crimes,makes no mention of relief amounts or whether the crimes are bailable/non bailable. In comparison, The Criminal Law (Amendment) Act, 2013 details a wide range crimes against cisgender women and greater punishments. But this law will not protect even the trans people who identify as women if they are all certified as proposed by the committee as “only transgender”. Two days back, there were reports of a court letting off all four accused of gang raping a 19 year old trans girl in Wadgaon Budruk, Pune citing that neither sec 377 [under which the case against the accused was filed] which criminalises “carnal intercourse against the order of nature with any man, woman or animal” nor IPC 376 which is the anti rape law which mentions women as the victims/survivors is applicable to a victim/survivor who is trans identified.

The question then remains, why this farce?

Acknowledgements:
A condensed version of this article appeared in The News Minute here. Thanks to Gee Imaan Semmalar for sharing the full critique here.

Further Reading on Orinam:
Full text, community critiques and legal analyses of The Transgender Persons (Protection of Rights) Bill 2016: https://new2.orinam.net/resources-for/law-and-enforcement/trans-persons-protection-rights-bill-2016

Full text and community critiques of MSJE Rights of Transgender Persons Bill 2015: https://new2.orinam.net/resources-for/law-and-enforcement/msje-rights-of-transgender-persons-bill-2015

Full text and media coverage of Tiruchi Siva’s Rights of Transgender Persons Bill 2014: https://new2.orinam.net/resources-for/law-and-enforcement/rights-of-transgender-persons-bill-2014/

Full text, media and community reviews of the Supreme Court ruling on Transgender rights in NALSA vs. Union of India and ors. 2014: https://new2.orinam.net/resources-for/law-and-enforcement/nalsa-petition-tg-rights-india/

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

From their interactions with these individuals, the Amour website administrators realized that many of the individuals seeking relationships are otherwise disconnected from their local communities, and have limited awareness of existing support or resources in their respective states/regions. Being isolated from queer/trans community spaces makes it difficult for community members to find support, whether they are single or in a relationship, especially if they lack accepting families and friends.

Writes Deepthi, a co-moderator of Amour and a long-time volunteer with Orinam, “My first break up was pretty devastating, and I didn’t have any friends from the community back then. I had straight friends to whom I was out, but it wasn’t the same. They were concerned, but couldn’t really help…as (I think) they didn’t know how to respond or what to do. They just saw it as “oh she is just going through a phase where she fell for a girl… isn’t that heartbreaking?” After that, I joined the community and made more friends than girlfriends and I love them more than anything (both friends and girlfriends).”

“I think it’s immensely important to have a support group/queer friends circle around you. I have seen people who just join the community groups, find a partner and leave, but fail (or don’t bother) to make friends. In their perspective, they don’t need friends, they just need a partner. It’s not wrong to have that perspective, but it’s not good. I can’t stress this enough: IMO it’s extremely important to have a queer support circle around you..not just a partner. ‘ learnt it the horrible way.”

To meet the existing need for contact information on queer support and social groups, mental health resources and other relevant information such as queer-friendly legal and medical providers across the country, Amour is partnering with Orinam to crowdsource a database of resources across the country. The database will consolidate  and supplement existing lists*: the latter will, in turn, be updated as new resources are added.

We invited readers to contribute to the Amour-Orinam Google Spreadsheet. Additions may be made state-wise, in the following categories:

• NGOs/CBOs supporting queer communities
• Queer support groups, collectives, initiatives, informal groups etc. (both online and offline)
• Queer campus and student collectives
• Queer-friendly lawyers and legal collectives
• Queer-friendly or community-run crisis helplines and mental health professionals.
• Queer-friendly HIV/STD/sexual health testing/treatment centres
• Queer-friendly medical professionals (other)
• Other queer-friendly institutions (including Pride organisers, if relevant)

To have editing access, readers need to be members of one of the Indian lgbt-related googlegroups. For more information, or to suggest additional categories, contact  amour.queer@gmail.com or Orinam.

*Current resource listings include Orinam’s collection of groups and lists, campus initiatives, crisis support, and healthcare providers

This study aims to understand the facets of discrimination experienced by people in same-sex and other queer/trans relationships  because of their relationship status; and to examine the relationship shared by the parties to such relations between themselves and with other persons/institutions.

The expected results of this study are (i) a critique of Indian laws relating to marriage, based on the real-life stories narrated by individuals in queer/trans relationships, and (ii) a case for recognizing rights of queer/trans people in relationships by using the Constitution as a tool of transformative justice to invoke protections of substantive equality and human dignity.

The scope of the study includes both dyadic (couple) and non-dyadic (poly) relationships that are viewed by the law as falling outside the presumed-cis, heterosexual norm. These could include, for example, relationships of two or more (cis/trans) women, (cis/trans) men, non-binary people, or cis-trans relationships where one or more of the individuals is gay/lesbian, bisexual, pansexual or queer. Individuals who are/were citizens of India, including those currently residing here, and those who grew up in India and are currently living abroad, are considered.

Methods used will include In-depth Interviews, Focus Group Discussions and Observation. The nature of questions to be posed to the participants would be generally open-ended and analytical questions. Responses may be recorded either by audio/video or in writing. Ethical issues of anonymity (when sought), informed consent and confidentiality will be strictly complied with.

Illustrative issues considered in the interview/FGD include openness about the relationship with family, social circles, neighborhood and/or workplace, discrimination faced  in housing, banking, and other areas, financial dependence and violence (physical, sexual, emotional) encountered.

To learn more or participate, email sourav.law@gmail.com or call +91 74064 47531.