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ISSUE 4 || August 2020 || www.whiteblacklegal.co.in ISSN: 2581-8503 VOLUME 2 : ISSUE 4 || August 2020 || Email: [email protected] Website: www.whiteblacklegal.co.in 1 www.whiteblacklegal.co.in ISSN: 2581-8503 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise. 2 www.whiteblacklegal.co.in ISSN: 2581-8503 EDITORIAL TEAM EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. Phone - +91-9990670288 Email - [email protected] EDITOR Name - Mr. Anand Agrawal Consultant|| SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR (HONORARY) Name - Smt Surbhi Mittal Manager || PSU EDITOR(HONORARY) Name - Mr Praveen Mittal Consultant || United Health Group MNC EDITOR Name - Smt Sweety Jain Consultant||SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR Name - Mr. Siddharth Dhawan Core Team Member || Legal Education Awareness Foundation 3 www.whiteblacklegal.co.in ISSN: 2581-8503 ABOUT US WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario. With this thought, we hereby present to you WHITE BLACK LEGAL: THE LAW JOURNAL 4 www.whiteblacklegal.co.in ISSN: 2581-8503 LGBT RIGHTS IN INDIA: AN OVERVIEW (By Komal Soni) ABSTRACT: Right to Equality refers to unfairness and also includes equality on the grounds of caste, race, religion, place of birth. Social Equality is mentioned under the Article 15 of the Constitution of India. Constitution is equally applicable for all of us, it does not differ or vary person to person or on any other ground. Thus, the provisions given by the constitution are equivalent for all of us. Discrimination on the grounds of a person’s caste, race, place of birth, gender or his religion are not valid. People with differ gender identity has nothing special but are also equally entitled with the constitutional provision. Although Indian constitution gives equal rights and equal provisions to all, yet the people belonging to LGBT community are being treated differently and not in right way. Many changes and amendments have been made in legal provisions for LGBT community people. The study of this research belongs to LGBT community people, their lives, their condition in Indian society, what have been the historical background of the LGBT community in India, what changes they had and the sufferance they had to face due to unacceptance in society. The researcher discussed about the incidents, events and movements took place during the period of LGBT community being an expelled part of society to become an accepted part in society. The researcher in this study discovered the actual condition of LGBT community people in society, how they are being treated in society and how they are functioning in society. Also the legal judgements and other events took place for the LGBT community will be shown by the researcher. The present research is based on the doctrinal methodology, theoretical resources like books, novels, reviews, judgements and other sources. KEY WORDS: The constitution of India, functioning, movements, Articles, methodology, community, discrimination, entitlement, dignity, pathetic, sufferance, criminalisation, differentiate, lesbians, homosexuality. 5 www.whiteblacklegal.co.in ISSN: 2581-8503 I. INTRODUCTION: In today’s era equality of gender is the main matter of concerned. Though our constitution in it consist the laws which are sufficient enough to bind people to follow those laws. The subject of male and female gender has been in concerned for o long but nowadays the other gender that is people belongs to LGBTQI community is in air. While the Article 14-16 of the constitution states that every person equally entitled to be treated equally, all have equal opportunity of being heard before court of law, equal opportunities of employment and also the constitution says that no person shall be subject to discrimination on the basis of race, caste, sex, religion, and place of birth. They all have given equality1. They people belonging to special identity shall also be entitled with same under the article of constitution. Article 21 gives a person right to love with dignity, people under all the categories fall under the same and the article is applicable over all. Fundamental rights of Indian constitution are given for people at large, n this does no differ on any ground given in Article 15. Earlier the condition of this community people was pathetic in terms of their living. But with the time situation started changing2. Since 1970’s the LGBTQ’s are being given the health services in U.S. While during the same period a book named “Transvestia” was published, the content of book was all about a man who wish to be dressed up like a woman. Not only in Indian constitution but also other countries have given a great support to the special community people. IN last few years the condition has taken a drastic turn. Society somehow accepting the community people. For the first time in 1999, and 2000 the month of June declared as “Gay and Lesbian Pride” month and after that the President Barack Obama continued the same. Amendments were made in legal provisions, not only in India but many other countries did the pleasure to the community people worldwide3. In a recent judgement passed in 2018 that was a big victory for the Lesbian and Gay community people. Hon’ble court held 377 partially unconstitutional and decriminalised homosexuality. II. A BRIEF OF INDIAN HISTORICAL BACKGROUND OF LGBTQIA: India being the south Asian country, has a long and complicated history of it as many people came and went but the britishers stayed and ruled over around 200 years and left in 1947. The 1 Quoted from J.N. Pandey, “Constitutional law of India”, 84, Central law Agency, 54th Edition. 2 Ibid. 3 Available at https://thehill.com/blogs/blog-briefing-room/502870-obama-wishes-country-a-happy-pride- month-after-scotus-decision last visited on 21.8.2020. 6 www.whiteblacklegal.co.in ISSN: 2581-8503 criminalisation of sexual activities is active since than because these activities have said to be “against the order of nature” under section 377 of the Indian Penal Code in 1861and that too is 150 years ago4. In 1977 Shakuntla Devi, mathematician, extra ordinaire, published the effort study of homosexuality in India, called “The world of homosexuals”. It called for decriminalisation and “full and complete acceptance-not tolerance, sympathy”. The book however, went unnoticed at that time. In 1981, the first all-India “Hijra” conference was called in Agra. 50,000 members of the community form worldwide attended it. In 1994, “Hijra” were legally granted voting right as a third sex. The first petition challenging section 377 was filed in 1994 by AIDS, Bhedbhav Virodi Andolan. This petition was eventually dismissed.5 In the name LGBTQIA L stands for Lesbian, G for Gay, B for Bisexual, T for Transgender, Q stands for Queer, I for intersex, A for asexual agender. LGBTQIA is an English umbrella term intended to include all the subsections of a very diverse community. There are many other inclusive acronyms, each more so than the next. LGBTQI is broad, inclusive and work best as an umbrella term. All the above-mentioned Articles are equally applicable to the person of LGBTQ community. Though there is no special provision is given in such respect, as these are sufficiently available for the people with different identity. Lately this has come into implementation6. Though the irony is, it’s been raining on our parade quite a bit over the last few years. India is a South Asian country with a long and complicated history and lots of different people came here from all over the world and stayed. The last ones here were the British, and they stuck around for over 200 years and left only in 1947. The British empire criminalised sexual activities “against the order of nature” arguable including homosexual sexual activities, under section 377 OF Indian penal code in 1861, which was 150 years ago7. III. CONSTITUTIONAL PROVISIONS: An American author A.V. Dicey gave the concept of rule of law. Rule of law is the supreme body. This principle simply means that no authority or nothing is above law and law is supreme. It is the ruler and the king. Even the king is under law8. 4 Available at http://www.asianinfo.org/asianinfo/india/history.htm last visited on 22.8.2020. 5 Available at https://www.indiatoday.in/magazine/special-report/story/19940515-eunuchs-fight-back-755619- 1994-05-15 last visited on 21.8.2020. 6 Quoted from Tappan Biswal, “Human Rights Gender and Environment” 231, published by Viva Books. 7 Id. at 10. 8 th Quoted from J.N.Pandey, “Constitutional law of India”, 84,Central law Agency, 54 Edition.
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