Over the past five years or so, India has witnessed seismic shifts in matters concerning the human rights of sexual minorities. Despite being stymied by right-wing groups cutting across religious lines, the Government of India has stood by its commitment to protect the rights of these stigmatised and ignored communities. Though it is too early to predict how new measures will change the lives of sexual minorities in India, it is encouraging to see the government acknowledge their existence and provide some hope of change.
Consider some of the actions by the Government of India:
Section 377 of Indian Penal Code
On July 2, 2009, in a landmark judgment, Delhi High Court ruled that Section 377 of Indian Penal Code violates Articles 21, 14 and 15 of the Indian Constitution. The judgment was widely celebrated and appreciated across the nation. But even before euphoria could lessen, a panoply of religious institutions queued up at the Supreme Court of India to challenge the Delhi High Court judgment. In total, 15 Special Leave Petitions (SLPs) challenging the decision were submitted to the apex court including petition from the Delhi Commission for Protection of Child Rights.
Final Supreme Court hearings appealing the 377 decision began in February 2012. When the Supreme Court requested the Government of India clarify its stand on the Delhi High Court decision, the government came out in support of decriminalising homosexuality and indicated that it would not challenge the verdict. In March 2012, the Supreme Court reserved the matter for judgment. In addition, the Government of India has accepted one of the recommendations in the UN’s 2012 periodic review of human rights and has agreed to study the implications of the decriminalisation of same sex sexual relations in light of ongoing homophobia throughout India society.
A country-level report published by the UN Working Group on Human Rights in India entitled ‘Human Rights in India – Status Report 2012’ includes a case study on Professor Siras, an scholar at Aligarh Muslim University, whose rights of privacy, housing, and employment were denied by the University due to his sexual orientation. His death in April 2010 continues to remain uninvestigated, a situation that indicates that even though same-sex behavior may be decriminalized, there remains significant societal stigma that continue to prevent the full enjoyment civil, legal and human rights by LGBT Indians.
Increased Access to Social Schemes
The Aadhar card is a social scheme initiated by the Indian government in 2009. It includes a 12-digit individual identification number issued by the Unique Identification Authority of India and is equivalent to the Social Security card in the United States. In Aadhar’s second phase, the government has included an additional category under sex in addition to male and female: transgender. Similar provisions have been made in voter ID cards and passports, but in each case the option is ‘other,’ not ‘transgender.’ Recently, the government issued an order allowing hijras to use their guru’s name instead of their father’s/mother’s when applying for a voter ID card. (A ‘guru’ is the head of a hijra family or community.) This decision recognizes that many hijras are estranged or rejected by their biological families.
National Youth Policy
In 2012, the Government of India has included issues of sexual minorities in its National Youth Policy for the first time. The draft document says, ‘Transgenders have for long been the butt of ridicule and derision of the society. They have virtually lived a life of complete segregation from the mainstream, and gays and lesbians have never been accepted in the society as same gender sex has always been treated in our society as perverted and immoral behaviour. The result of these deeply embedded stereotypes and biases has been that gays and lesbians are reluctant to express their sexual preferences openly.’ The policy also mentions that special efforts will be made for employment and entrepreneurship for marginalised youth and for building the capacities of community-based organisations to create awareness of HIV and its social and health-related implications.
Justice Verma Committee Report on Rape Laws
In January 2013, Justice Verma committee submitted its report to the Home Ministry. The special committee was constituted following the brutal gang rape and murder of a female student in New Delhi in December 2012. In its report, the committee observed that there is an immediate need to recognise different sexual orientations as an authentic part of the human condition and that the use of word ‘sex’ in the Article 15(c) of the Indian Constitution includes sexual orientation as well. One of the recommendations of the committee is to disseminate correct knowledge in respect of sexuality and sexual options, without enforcing gender stereotypes. The report stresses the importance of communication efforts to encourage respect and understand gender, sexuality and gender relations amongst youth. The report also suggests making rape laws gender-neutral as sexual assault of males and transgenders is a reality.
It is laudable that the Government of India has taken such positive steps towards making equality a reality for sexual minorities. Though these efforts suggest that India’s sexual minorities have entered a period of social restructuring, India remains a long way from realizing the dream of full equality, in law, policy and practice. For example, the recent law on surrogacy states that only a man and a woman who are married for at least two years will be allowed to engage surrogacy services in India. While facing ongoing barriers to equality, we should not be discouraged from claiming our status as full and equal citizens of India. As Martin Luther King, Jr. once said, ‘Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so must straighten our backs and work for our freedom.
The author of this post, Yadavendra Singh, is Senior Programme Officer: Capacity Building for Alliance India’s Pehchan Programme.
With support from the Global Fund, Pehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan will address some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, SAATHII,Sangama, and SIAAP and will reach 453,750 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.