Open Access Research Article
BREAKING BARRIERS AND AMPLIFYING VOICES: ENHANCING LGBTQ+ COMMUNITY ACCESS TO JUSTICE AND LEGAL INNOVATION BY: - SHAKIR MOHAMMEDRAFEEK RADHANPURWALA
Published Paper
Article Details
BREAKING BARRIERS AND AMPLIFYING
VOICES: ENHANCING LGBTQ+ COMMUNITY ACCESS TO JUSTICE AND LEGAL INNOVATION
AUTHORED BY: - SHAKIR MOHAMMEDRAFEEK
RADHANPURWALA[1]
ABSTRACT
In the country like India, where
people still follow orthodox mindset up to some extent, it is difficult to
ensure the rights and privileges of the people. In many regions of the India,
people are still struggling for their rights. However, the supreme law of land,
Constitution of India has guaranteed the fundamental rights to everyone.
Although, normal people in their course of lives faces the transgression of
their basic rights. In this kind of scenario, it becomes very difficult for the
people of the LGBTQ+ Community to ensure their rights in the society. Article
14 and Article 15 of the Indian Constitution describes about the Right to
Equality and Prohibition of Discrimination respectively, considering the same,
the hon’ble Supreme Court of India has given landmark judgments on the same. I
regret to inform you that we continue to hold outdated belief systems in this
modern day. Allow me to ask you a question, even in this modern age, we are not
able to accept the live-in relationship, how we will welcome the people of the
LGBTQ+ Community? With our old and rigid mindset, we are never ever going to
give the equal status unlike us. In the history, there were so many movements
took place for the enlistment of the rights of the LGBTQ+ People. However,
judiciary has taken the efficient measures for their benefits, but we are lacking
in the execution of the judgments of the court. In my opinion, it is not just
enough to provide the column of the third gender in the application form until
we accept them with our open mind and heart. In this paper we will discuss the
struggle of the people of the LGBTQ+ Community.
INTRODUCTION
To understand the problems of the
marginalized community, it is very important to understand the definition of
the marginalized community. The term ‘Marginalized Community’ means a group of individuals or communities who have
socioeconomic or ideological disadvantages and are deliberately excluded or
disadvantaged from society as a whole. Marginalization may take place because
of a wide range of reasons such as ethnic background, sexual orientation,
race, socioeconomic standing, impairment, religion, or language. Marginalized
groups frequently confront impediments to assets, possibilities, and processes
for making decisions. People of marginalized community may face prejudice,
taboo, and disparities in treatment, which can result in discrepancies in
training, employment, medical care, accommodation, and access to justice.
Institutional or fundamental problems, such as biased statutes, regulations, or
societal practices that support inequality and drawbacks may extend
marginalization. Recognizing and meeting the needs of people who are
marginalized are essential for developing equality, social equity, and
inclusion. Acknowledging marginalized populations’ distinctive circumstances,
fighting for their rights, and trying to eliminate all possible societal
obstacles that promote marginalization are all part of efforts to strengthen
marginalized communities. This includes guaranteeing equitable access to
opportunities, services, and resources, as well as encouraging marginalized
populations’ participation, inflammation, and voice throughout decision-making
processes. Marginalized community covers the following groups:
I.
Minorities of ethnicity and racial background
II.
Socially and economically Unprivileged People
III.
People of the LGBTQ+ Community
IV.
Refugees and Immigrants
V.
People with Impairments
VI.
Women and Gender Minority Groups
VII.
Religious and Linguistic Minority Groups
VIII.
Indigenous Groups
In this context, we will discuss the
people of the LGBTQ+ Community. Firstly, we have to understand the meaning of
each and every alphabet of the LGBTQ. Here, ‘L’ stands for Lesbian, ‘G’ stands
for Gay, ‘B’ stands for Bi-sexual, ‘T’ stands for Transgender and ‘Q’ stands
for Queer. Moreover, there are so many definitions are also available in many
authenticate sources. As per the definition mentioned in the Oxford Dictionary,
Lesbian means[2], “A
woman who has feelings of sexuality for other women.” Gay means[3], “Individuals,
especially men, who have a physical attraction towards other men.” Bi-sexual
means[4], “A
scenario where people are physically tempted for both sexes.”
Transgender means[5], “Describing
or referencing people whose sexual orientation does not match the sex that was
given to them at birth.” Queer means[6], “Identifying
or relating to a gender or sexual orientation that departs from traditional
gender and sexual orientation views.”
These people, from the very inception, are facing the discrimination and
not getting any basic rights in the society. The people of the society look
them towards as a societal failure. LGBTQ+ is not new phenomenon from the
medieval period, the individuals of this community exist. But due to immense
efforts and movements, they came into light and people started thinking about
them. There are many scriptures that indicate that in the ancient times of the
Mahabharat and Ramayana and during the rule of the Mughal Emperors, people was
engaged in the homosexuality. After a long time, in the 20th
Century, people of the LGBTQ+ Community started untired efforts to seek their
rights from the society and demanded to accept them as a part of the society.
Dawning of Equality: The Rise and Flourishing of LGBTQ+ Rights
Movements
When Britain ruled India in the 1860s
homosexuality and having relations with a person of the same sex were regarded
as criminal offences. Following
that, in 1947, when the country obtained freedom from British rule, and later
in 1949, the Constitution of India was adopted, and under the same, the
notion of being homosexual was not included under article 14 at that point in
time. In the August 1992, around 43 years following the enactment of
the Constitution of India, the first gay and lesbian rights rally was organized
in the capital of the nation, Delhi. The constitution of our country has been
modified 74 times till 1992, and we still have not put these individuals inside
the scope of Article 14 of the Indian Constitution. Following that, in the year
1999, with only fifteen individuals, the Calcutta Rainbow Pride took place with
the intention of safeguarding the freedoms of the LGBTQ+ population[7].
Following such endeavors by
individuals of various groups, the Indian judiciary ruled in the case of Naz
Foundation v/s. Govt. of NCT Delhi[8]
in 2009. The court concluded that
defining consent-based sexual relations as an offence is an infraction of basic
rights granted by the Indian Constitution. This verdict was given by the High
Court of Delhi and however, after 4 years of this verdict, the said case was
challenged before the Hon’ble Supreme Court of India. The Supreme Court of
India, however, in the case of Suresh Kumar Koushal and Others v/s.
Naz Foundation[9],
and reinstate Section 377 of the Indian Penal Code and overruled the verdict of
the Delhi High Court. In the meantime, one Member of Parliament also suggest
the bill for the protection of the LGBTQ Community, that was also not accepted
by the Parliament of India. There were so many protests was going on the many
parts of the country and here and there it was argued and said that the people
of the LGBTQ+ Community is in very less in the population and there should not
be any separate legislation should be enacted for the same. Subsequently, in
the case of National Legal Services Authority v/s. Union of India[10],
the Apex Court of India provided the "third genders" definition
for people from the transgender community in a landmark ruling. Prior to this
judgment, these persons had been compelled to describe themselves as
male or female, but with this decision, they were able to firmly
designate as a third gender. Furthermore, in its decision in the aforementioned
case, the Supreme Court of India stated that it set a framework to grant the
LGBTQ+ Community a wide range of significant basic rights.
However, after all of these efforts,
there was not enough protection was available to this community and just
providing the space in the application form is not enough for the people of
this community. We are not obliging them by giving the tag of the third gender.
Subsequently, to check the validity and constitutionality of the Aadhar Card, a
Retired Justice K S Puttaswamy filed a writ petition. This case is also known
as Aadhar Case across the country. In the case of Justice K S
Puttaswamy (Retd.) v/s. Union of India[11], the landmark decision was given by the
Supreme Court of India and under the parameters of the Article 21, Right to
Privacy was also added under the same. This verdict was very crucial for the
people of the LGBTQ+ Community, and it also gave them a hope to sustain and
protect their right in its true manner. Following the same, after an extended
legal battle from the beginning of the twentieth century to 2018, the Supreme
Court of India ultimately rules Section 377 of the Indian Penal Code
constitutionally invalid in the case of Navtej Singh Johar v/s. Union of
India[12]. On top of that, the Transgender Persons
(Protection of Rights) Act, 2019 received approval for ensuring the security of
this group and following shielding of their interests and rights. This
legislation establishes a system for the administration of the Transgender
Community's rights.
Challenges and Progress:
Navigating the Position of LGBTQ+ Community in Contemporary India
In
recent times, many people are still struggling for availing their rights and
fighting the legal battle for their betterment. There are so many verdicts are
passed by the various High Courts and Supreme Court of India regarding the
fundamental rights and public welfare. In the public welfare cases, judicial
activism and Public Interest Litigation has played vital role for the people
who have faced lot of struggles to avail their basic rights. Following a
lengthy legal fight, the Transgender Persons (Protection of Rights) Act, 2019[13]
was approved in 2019. I would like to ask you a question: is it adequate for
them to simply enact law and provide shielding on sheet of paper? We achieved
the freedom from the British Colony in the year 1947 and even after so many
years of independence, people of the country are having the same mindset as it
was in the ancient times. We as a society are not ready to accept them as a
part of among of us. When it comes to equal laws we always think
first about male and female equality, we never focus on this community Each and every time, we just eliminate
individuals of the LGBTQ+ community. Even the most important law, the
Indian Constitution, has granted Fundamental Rights to all citizens of the
nation.
Recently,
there was an article published in the Bar and Bench[14]
in which it was contended that, even after the 8 years of the landmark judgment
of the Supreme Court in the case of National Legal Services Authority v/s.
Union of India[15],
the Government of Maharashtra still didn’t make any arrangements for the
reservation policy for the LGBTQ+ Community, and it was remarked by the Bombay
High Court. On the 25th of March in 2023, an advocate at the
Apex Court of India wrote a letter to Supreme Court Justice asking
for bathrooms that are gender-neutral and the addition of the LGBTQ community a
member on the court's Gender Sensitization Committee for the people of the
LGBTQ+ Community[16].
In the southern side of the India, two males recently married and for the
registration of the marriage they filed a writ petition in the High Court and
same was accepted by the Single Judge Bench[17].
In yet another instance, a homosexual man named Saurabh Kirpal was refused to
serve as a judge in the Delhi High Court. Saurabh Kirpal is an eminent counsel
at the Delhi High Court and a lawyer for the rights of LGBTQ people. The
central government contested to his appointment as a judge at the Delhi High
Court solely due to he is homosexual and in an intimate relationship with an
outside citizen. This has been a point of debate since 2017, and after a
four-year period, a collegium of the Supreme Court granted the order of
appointment on the eleventh of November 2021. The Supreme Court collegium
stated that Saurabh Kirpal’s gender identification was not sufficient to
preclude him from holding the office of the High Court Judge[18].
One
of the most recent issues which is prevailing in India is the case which was
filed before the hon’ble Supreme Court of India for the recognition of the
Same-Sex Marriage. The said petition was filed in the name of Supriyo @
Supriya Chakraborty v/s. Union of India[19]. By
looking the seriousness of the matter and substantial question of law, the said
matter was kept for the hearing in the Constitutional Bench of the Supreme
Court of India. This matter was heard by the hon’ble Chief Justice D. Y.
Chandrachud, Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam
Sri Narasimha. The five judges bench heard the case of the recognition for the
same-sex marriage. For this landmark case for the upcoming future, to represent
the petitioners, the great minds of the nations were engaged in this case. For
the petitioner side, Senior Advocate Mukul Rohatgi, Dr. Menaka Guruswami,
Senior Advocate Saurabh Kirpal, Senior Advocate Raju Ramchandran, Senior
Advocate K V Vishwanathan, Senior Advocate Geeta Luthra, Senior Advocate Dr.
Abhishek Manusinghvi and many other lawyers were appeared. In this case, to
represent the Union of India, Solicitor General of India, Attorney General of
India, Senior Advocate Kapil Sibal and many other lawyers of the Supreme Court
were appeared.
The
background of this case was, on the 12th of November 2022, two
couples who were engaged in the same-sex relationship, filed a writ petition
before the Suprme Court of India for demanding the legal acknowledgement of the
Same-Sex weddings in the country. The petitions emphasized on the legality of
the Special Marriage Act, 1954. The contentions of the petitioners were on the
Section 4(c) of the said act. Section 4(c) of the Special Marriage Act, 1954
only allows the marriages between only ‘men’ and ‘women.’ By refusing them to
marry is the discrimination in the eyes of the law. As per the contentions of
the petitioners, by denying marrying is the transgression of the fundamental
rights of LGBTQ+ Community, and they also cited the landmark judgments of the National Legal Services Authority v/s. Union of India[20] and
Navtej Singh Johar v/s. Union of India[21]
in which Supreme Court of India itself in which Supreme Court itself had
recognized the equal rights of the Transgender Community. Moreover,
since no legislation governs gay marriages, couples who are LGBT are not
allowed to have the actual advantages of getting married, such as
inheritance rights, insurance, and adoption rights[22].
On the
12th day of March 2023, the Centre filed a counter affidavit in
reply by rejecting the idea of the same-sex marriage in the cultural country
like India and moreover it was contended that, “The concept of wedding
essentially, inevitably and unavoidably entails a relationship among two
individuals of opposing sex.” Next day, the hon’ble
Chief Justice of India assigned this matter to the constitution bench by
stating there is an involvement of the substantial question of law as well as
Constitution[23].
This
hearing was continued for 10 days and many Senior Advocates includes Attorney
General and Solicitor General had argued the matter in the favour and against
the notion of the same-sex marriage. Prima facie it has appeared that, the
Union was strongly against the notion of this petition and moreover, Bar
Council of India also opined that, this issue of the same-sex marriage should
be left on the legislature. Many other religious groups and organizations had
protested against this petition and more than 12 states which was joined as a
party in this case by the central government were against the notion of the
same-sex marriage. After the completion of the full argument in this case,
Supreme Court of India on the 11th day of May 2023, ordered for the
completion of the argument and the Judgment was reserved by the Court.
This is
how this matter was argued and both Petitioners and Respondents had pointed out
their submissions. In my opinion, this kind of matters should be dealt with
very sensitively and with utmost care because today or tomorrow it is going to
affect our future generations. However, I am not saying that, Supreme Court is
not looking properly behind this case. And this kind of matter should also
consider the opinion of the public at large because ultimately the people of
the LGBTQ+ Community is the part of our society only, and they are residing
with us only. In this case many lawyers have argued that, still there are no
any laws for the LGBTQ+ Community and for their enough protection. My
contention is that, even after having these landmark verdicts in favour of the
LGBTQ+ Community, why this community is still struggling so long for
single-single thing? In the developing country like India, there are lack of
resources we accept that fact, but we are fast-growing economy so that, we can
provide enough protection to each individual of our society. As per the Supreme
Law of Land, Constitution of India, no individual should suffer unnecessarily.
Therefore, the spirit of the Constitution should not be compromised.
CONCLUSION, SUGGESTIONS AND RECOMMENDATIONS
Ultimately,
this research paperwork on the title “Breaking Barriers and
Amplifying Voices: Enhancing LGBTQ+ Community Access to Justice and Legal
Innovation” concentrated specifically on the significance
of elimination of impediments and mobilizing the LGBTQ+ community inside the
legal framework. Throughout the paper, we talked about various challenges which
individuals of the LGBTQ+ community confront in obtaining justice, as well
as the need of creative legal techniques in safeguarding their fundamental
freedoms and wellness. We have come to understand the significance of
taking proactive action towards eliminating discriminatory obstacles in order
to create an additional equitable legal environment. This involves raising
legal knowledge, advancing the rights of LGBTQ+ people, and establishing that
promotes laws focusing on their special legal demands. Additionally, we
stressed the importance of legal inventiveness in responding to the changing
environment of LGBTQ+ rights, acknowledging the importance of for dynamic and forward-thinking
measures to ensure justice and equality.
We have
witnessed the influence of activism and engagement with the community via the
process of amplifying voices and establishing venues for LGBTQ+ persons to
express their lived experiences, issues, and ambitions. We can develop a more
equitable discussion, fight against prejudice, and develop a legal
framework which acknowledges and upholds the civil liberties of all persons,
irrespective of sexual orientation or gender identity, by elevating many different
opinions and perspectives.
However,
it is critical to acknowledge that there is still a lot to be done. To keep
continuous Collaboration between legal practitioners, policymakers, LGBTQ+
groups, and those in the community will be vital in tearing down obstacles and
making sure equitable access to justice for everyone. The findings given in
this paper is a call to action, pushing stakeholders to carry on working for
positive change, improving legislative safeguards, while creating a space in
which the LGBTQ+ community's opinions are considered, acknowledged, and valued.
Pursuing
equality and legal innovations is a shared duty. We can establish a society
where the rights of the LGBTQ+ people are fully realized by knocking down
barriers and elevating voices, promoting an equitable and inclusive tomorrow
for all of us.
[1] Student, GLS Law College
[2]Oxford Learners’ Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/lesbian_2#:~:text=lesbian,noun,sexually%20attracted%20to%20other%20women, (Last Visited May. 31, 2023,
11:41PM)
[3] Oxford Learners’ Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/gay_1#:~:text=gay-,adjective,the%20same%20sex%20synonym%20homosexual, (Last Visited May. 31, 2023,
11:43PM)
[4]Oxford Learners’ Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/bisexuality#:~:text=%2F%CB%8Cba%C9%AA%CB%8Csek%CA%83u%CB%88%C3%A6l%C9%99ti%2F-,%2F%CB%8Cba%C9%AA%CB%8Csek%CA%83u%CB%88%C3%A6l%C9%99ti%2F,gender%20compare%20heterosexuality%2C%20homosexuality%2C%20pansexuality (Last Visited May. 31, 2023,
11:45PM)
[5]Oxford Learners’ Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/transgendered#:~:text=%2Ftr%C3%A6nz%CB%88d%CA%92end%C9%99rd%2F,the%20term%20trans%20or%20transgender. (Last Visited May. 31, 2023
11:49PM)
[6]Oxford Learners’ Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/queer_1#:~:text=%E2%80%8Bdescribing%20or%20relating%20to,non%2Dbinary%2C%20bisexual%20or%20transgender
(Last Visited May. 31, 2023 11:51PM)
[7] Riya, LGBTQIA+ Community: A
Detailed Discussion, DRISHTI IAS BLOG, (Last Visited June. 1, 2023, 03:31PM), https://www.drishtiias.com/blog/lgbtqia-a-detailed-discussion
[9] Suresh Kumar Koushal and Another v/s. Naz Foundation, CIVIL APPEAL NO.10972 OF 2013, (Arising out of SLP (C) No.15436 of 2009)
[10] National Legal Services Authority v Union of India, WRIT PETITION (CIVIL) NO.400 OF 2012
[11] Justice K S Puttaswamy (Retd.) v/s. Union of India, WRIT PETITION (CIVIL) NO. 494 OF 2012
[12] Navtej Singh Johar v/s. Union of
India, AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
[13] The Transgender Persons (Protection of Rights) Act, 2019,
No. 49, Acts of Parliament, 2019 (India)
[14] Neha Joshi, Maharashtra in deep
slumber, no reservation for transgender persons 8 years after Supreme Court’s
NALSA Verdict: Bombay High Court, (2022) (Last visited June. 02, 2023, 02:31PM)
[15] National Legal Services Authority v/s. Union of India, WRIT PETITION (CIVIL) NO.400 OF 2012
[16] Ratna Singh, Lawyer writes to
Supreme Court for gender-neutral bathrooms, LGBTQIA+ representation on Gender
Sensitisation Committee, (2023) (Last visited June, 02, 2023, 02:39PM)
[17] LiveLaw News Network, Gay Couple
Moves Kerala HC for Recognition of Homosexual Marriages Under Special Marriage
Act, (2020) (Last Visited Apr. 20, 2023, 02:29AM)
[18] LiveLaw News Network, Saurabh
Kripal’s Openness About Sexual Orientation Doesn't Make Him Unsuitable for
Judgeship: Supreme Court Collegium Reiterates Proposal, (2023) (Last Visited
June, 02, 2023, 02:48AM)
[19] Supriyo @ Supriya Chakraborty v/s.
Union of India , Writ Petition (Civil) 1011 of 2022
[20] National Legal Services Authority v/s. Union of India, Writ Petition (Civil) No.400 of 2012
[21] Navtej Singh Johar v/s. Union of India ,WP (Crl.)
76/2016; WP (C) 572/2016
[22] R. Sai Spandana and Joyston D’Souza,
Plea for Marriage Equality: Constitution Bench Day #1, Supreme Court Observer,
(Last Visited: June 02, 2023, 07:19PM)
[23] Ibid
Article Information
BREAKING BARRIERS AND AMPLIFYING VOICES: ENHANCING LGBTQ+ COMMUNITY ACCESS TO JUSTICE AND LEGAL INNOVATION BY: - SHAKIR MOHAMMEDRAFEEK RADHANPURWALA
Authors: SHAKIR MOHAMMEDRAFEEK RADHANPURWALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.