The LGBTQ community and its history of existence as well as atrocities faced by them are not new to the world. However,it is only in recent times that few countries have legalised gay relationships. Nevertheless, the unending debate about the rights of the community till date rightly echoes with the statement that the LGBTQ community rights are new, issue is old yet young. According to a government report of 2012, India had around 25 lakhs gay population and out of which around 7 lakhs had HIV. This data raised significant questions about the identity crisis of the community, health related neglect and its impact on the community, development related questions and above all it questioned the denial of fundamental rights based on moral quotient rather than constitutional quotient despite constitutional quotient being the underlying basis of nationality and rights. Pragmatically one may question, can nationality vis-à-vis rights bestandalone criteria and if so then on which lines can a diverse country be governed?
Until 2018, section 377 pertaining to criminalization of homosexuality was still very much alive and roaring while the LGBTQ community was rising with revolution and demanding basic human rights to marry, adopt, divorce, inherit property legally. Interestingly, this community all this while was living in an undeclared denial of rights. This denial of rights and the persistent denial of their existence met its climax consequentially in 2018.The NALSA judgment in 2014 recognised the third gender and the declaration of right to privacy as the fundamental right in 2017culminated into the ultimate striking down of section 377, decriminalising homosexuality in India . Though this is not the culmination of the debate regarding the rights of LGBTQ community,it has triggered the beginning of a new era for the community and the much needed social inclusion which India has been awaiting for years now.
Throughout the history of the community and till today, the primary ground of contest or discrimination for this community comes from religious prohibitions in almost all major religions across the globe .Secondly,since the order of society and its idea of natural and unnatural acts usually percolates around commonly acceptable or unacceptable behavioural expressions .Thirdly ,alienated approach of society naturally creeps in from lack of educational reforms that exclude studies about the community at primary and compulsory stages of formal education .Also, a deeply penetrated lack of sense of individuality in Indian societies and the strong societal lineage that defines our societies further restricts the accommodation of progressive realization of individual rights .
Coming to the constitutional provisions available for the citizens of the country alike are right to life and personal liberty,dignity under article 21, and the fundamental right to privacy stand as shields to judicial protection yet with section 377 there stood possibility of administrative interference in personal life which had been used as a tool for harassment of homosexuals for long. Also significantly, right to non-discrimination underarticle 15 and more so right to equality under article 14 are protections guaranteed by the constitution of India but by the time one could defend on these grounds, one is morally and socially crippled. In the light of these rights, it was essential to decriminalize homosexuality for upholding constitutional protections and also for demarcating consequences of moral policing.
Furthermore, the necessity of recognizing the community and its rights also emanates from the basic requirements for sustenance of a regular life with secured employment opportunities ,successions and inheritance rights ,well defined procedures to avail civil justice arising out of conflicts in divorce or succession or other cases of adoption ,marriage etc. Also, along with these issues significant concerns relate to the appropriate medical treatment of the community wherein disclosure of gender and sexual partner is critical for right diagnosis and subsequent treatment.
Additionally, besides hindrances in availing of generic facilities the community has been unduly subjected to discrimination and exclusion from society .Financial and social inclusion remains the biggest challenge for the country till today, the realization of which will truly make India an example of a truly progressing nation.Human rights and equality for lesbian, gay, bisexual, transgender and Queer (LGBTQ) people are usually considered through a social, cultural, or ethical lens, but equality and inclusion of LGBTQ people are also economic development issues.
The economic cost of stigma incurred because of negative attitude towards LGBTQ people and the exclusion of these people in social institutions such as education, employment, families, and health care contributes to economic growth slag as well.Exclusion can generate economic costs ,can reduce the economic contributions of these people, both directly through unemployment, underemployment, lower productivity and indirectly through behavioral feedback loops that reduce individual and social investment in human capital and health. Lower wages and unemployment are directly associated with poverty, therefore LGBT people are also more likely to have higher rates of poverty.
Besides social and economic issues, the community comparatively is faced with higher health related risks.Several studies also suggest that the rate of depression among LGBTQ people is very high in India. Also, rates of contracting HIV/AIDS are higher among sexual minority populations in India than for the population as a whole. Due to criminalization of homosexuality, the community would naturally refrain from disclosing gender or sexual orientation even at the stake of not meeting the right treatment for health related issues.
Globally, approximately between 26-30 countries out of about 195 countries have legalized gay relationships. The LGBTQ issue is also young because the global acceptance percentage is still much lesser. Besides inclusion, legalizing gay relationships has significant impact on the world outlook and global image of a country. The countries legalizing gay relationships are seen as LGBTQ friendly for migration, education, tourism, investment and other opportunities.
Towards citizens, the state has an obligation to take appropriate measures for the progressive realisation of economic, social and cultural rights but ensuring rights to one segment that do not contradict any other segment’s culture or race is a catch 22 in a culturally diverse country like India. Judicial changes have to necessarily be coupled with societal initiatives at administrative level to usher modern perspectives in tandem with cultural preservation while bringing absolute synchronization of identity and guaranteed rights without turmoil.