On September 6, 2018, the Supreme Court of India, while delivering the Navtej Singh Johar and Others v. Union of India, not only struck down Section 377 of the Indian Penal Code (IPC) 1872 but also declared that history owed the LGBTQI+ community an apology for decades of humiliation and exclusion. The judgment also helped in initiating conversations on the intersection of gender, sex, and sexual orientation. However, 7 years after this landmark judgment, the promises made remain unfulfilled, and the LGBTQI+ community is still finding it difficult to have equal rights as others.

The Court spoke of “constitutional morality” and transformative Constitutionalism; albeit this, outdated statutes and the new criminal code, coupled with other laws protecting their heterosexual counterparts from sexual harassment and domestic violence, have left crucial gaps, keeping the community precariously placed. 

Equal Protection Marred by Legal Blind Spots 

Ironically, the Parliament of India chose to do away with the substance of Section 377 of the IPC, altogether in the Bhartiya Nyaya Sanhita (BNS) 2023, even though it was partially struck down to the extent of non-consensual intercourse in the Navtej Singh Johar case and protected consensual intercourse till its removal. Additionally, sections for rape, stalking, voyeurism, or sexual exploitation continue to see only women as victims, leaving men, trans persons, and non-binary individuals legally invisible. Section 69 criminalizes sexual intercourse obtained through deceit or false promises of marriage, but similarly, it only addresses harm inflicted on women. 

The only Act, that is the Transgender Persons (Protection of Rights) Act, 2019, which could have protected transgender individuals and not necessarily LGBTQI+, provides for a punishment of just 2 years, which is far below the punishment prescribed under BNS. In effect, India has modernised its code, while keeping LGBTQI+ citizens outside its protection.

Besides the BNS, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), is also equally exclusionary. It fails to ensure the protection of victims other than those who are women, as under section 2(a). To file a complaint under this Act, a transgender individual will have to identify themselves as a woman, an absurd demand in itself. The Act automatically excludes men, transgender men, and many gender-diverse persons from its protection, even though sexual harassment is a reality across all sexual minorities. 

While there are different interpretations of various High Courts on whether a victim can be trans or a perpetrator can be of any other gender, this gender bias under the PoSH Act continues. The absence of an inclusive provision under the PoSH Act also impacts the choice of livelihood made by members of the community. Due to the lack of a redressal mechanism, queer persons prefer work-from-home or freelancing jobs that seemingly protect them from harassment and prejudice.

Furthermore, the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), provides important protections within domestic and intimate relationships. Over the period of time, the courts of the country have included trans women within the meaning of the word women under the Act. However, given that same-sex marriages are not legal in India yet, several LGBTQI+ couples continue to stay in live-in relationships. The PWDV Act, though, covers relationships in the nature of marriage; it does not cover same-sex live-in relationships. 

The Supreme Court in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora and Ors struck down Section 2(q) of the PWDV Act, stating that restricting the scope of the victim to only females is a violation of Article 14. The court opined that the crux of the PWDV Act is to protect persons from violence in a shared space, and thus, placing restrictions on its applicability to a specific gender or relationships is unconstitutional. Even after 9 years of the Top Court’s ruling, the Union Government is still left to make amendments to the Act.

Towards a Truly Inclusive Society

Despite the judiciary’s repeated affirmations of gender equality and India’s commitments under international human rights instruments such as the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR), sexual minorities continue to face grave neglect in accessing justice and dignity. The persistence of gender-specific sexual offence laws and the failure to enact gender-neutral provisions despite progressive efforts like the 2019 private member’s bill by KTS Tulsi underscore an ongoing legislative gap.

The Indian Constitution explicitly guarantees both equality before the law and equal protection of the laws to all citizens. Yet, these protections remain incomplete without legislative reforms that address the lived realities of non-binary and gender-diverse persons.

Disclaimer: The opinions and views expressed in this article/column are those of the author(s) and do not necessarily reflect the views or positions of South Asian Herald.

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