International Journal of Applied Research 2016; 2( 6): 408 -410

ISSN Print: 2394-7500

ISSN Online: 2394-5869
Impact Factor: 5.2 Issues and challenges of ‘LGBT’ minority people in
IJAR 2016; 2(6): 408-410
www.allresearchjournal.com
India
Received: 25-04-2016
Accepted: 26-05-2016
Dr. Kalpana V Jawale
Dr. Kalpana V Jawale
Assistant Professor, P.G.
Department of Law, Sant
Abstract
Gadge Baba Amravati In this article the researcher has tried to discuss about concept, nature of LGBT People, discrimination
University, Amravati, on the ground of sex in the society it results in violation of their rights including fundamental rights and
Maharashtra, India. human rights. The researcher also tried to give focus on legal definition and its scope, lacunas, issues
and challenges before LGBT minority people in India.

Keywords: LGBT, Minority People, Human Rights, Fundamental rights, issues and challenges.

Introduction
The reference of homosexuality finds in pre-colonial societies in India. Homosexuality was
treated as heinous offence in Manusmrithi and punishment for such offence was there. In the
Manusmriti Lesbianism was treated as serious offence and for it more serious punishment
was there. In Islamic period, the Muslim Shariat law treats homosexual conduct as a serious
offence. Therefore in different religion different punishments were provided to homosexual
offences in India.
Codification of laws started during British period first enactment took place for uniform
criminal laws in India in 1860. Under the Indian Penal Code uniform prescription of
homosexual behavior in the form of unnatural offences its nature and punishment has been
prescribed. Although sexuality minorities have always existed in India sometimes in various
forms like culturally sanctioned (such as the hijra) and at other times in invisibility and
silence, their issues have never seriously been articulated. Before 19 th century these issues
were only limited to the society but in 19th century the rights of LGBT minorities raised their
issues relating to violation of their human rights. These serious issues come forward through
by various civil society organizations in India. In India the first gay magazine Bombay Dost
in the late 1980’s and the starting of a lesbian collective in Delhi called Sakhi, lesbian, gay
and bisexual issues were first articulated in a public forum. Since this Magazine LGBT
minority movement has been increased in India.
It is only in the final decade of the 20th century that the gay/ lesbian/ bisexual/ transgender
movement brought to the fore the rights of those discriminated against because of their
sexuality. In the mid 1990’s, the Human Rights Committee held that the anti sodomy law of
Tasmania violated the right to privacy and the right to non discrimination guaranteed to all
persons under the International Covenant on Civil and Political Rights. In Scandinavia, the
provision of equal rights for sexuality minorities, including marriage rights, was an
important. The other major development has been the South African Constitution, which for
the first time expressly prohibited discrimination on grounds of sexual orientation. But while
the scope of human rights has been extended to include hitherto marginalized communities at
Correspondence the global level, a similar movement is yet to take place in India.
Dr. Kalpana V Jawale In fact, most human rights organizations in India the People’s Union of Civil Liberties –
Assistant Professor, P.G. PUCL have not begun to address the question of rights of gays, lesbians, bisexuals and
Department of Law, Sant
transgender others who are oppressed due to their sexuality. Sexuality is sometimes viewed
Gadge Baba Amravati
University, Amravati, even in liberal and radical circles as a frivolous, bourgeois issue. In such a context,
Maharashtra, India. homosexuality is seen implicitly as something deviant and unnatural that is at best defended
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International Journal of Applied Research

as an individual freedom but not a matter of priority for the Prevention of unnatural offences under Indian Penal Code
human rights movement. Generally, issues of poverty and Legal Discrimination against the sexuality minorities takes
gender, class and caste oppression are seen as more many forms, the most notorious being Section 377 of the
important than that of sexuality. But this ignores the fact that Indian Penal Code (IPC), a British colonial legislation
sexuality is integrally linked to ideologies and structures of criminalizing homosexual behavior, that continues to be in
social oppression such as patriarchy, capitalism, the caste the Indian statute book although it has long since been
system and religious fundamentalism. Hence, the struggle for removed from the British statute book. This section says that,
sexuality rights cannot be separated from the broader human “Whoever voluntarily has carnal intercourse against the order
rights struggle for economic, political and social liberation. of nature with any man, woman, or animal, shall be punished
with imprisonment of either description for a term which
Methodology: Researcher has adopted Doctrinal method may extend to 10 years and also be liable to fine.”
therefore collected data from various Books, Journals, The unnatural offences under IPC are sodomy or bestiality.
articles and News papers etc. The parties involved in this offence active and passive both
are liable for punishment as per the above section. Therefore
Objectives
e this section clearly shows that sodomy is prohibited in India.
 To explain the concept of LGBT.
 To analyse Legal provisions. Right to privacy of LGBT minority People
 To discuss Constitutional protection to LGBT Minority The right to life and personal liberty includes right to
people in India. privacy. The Constitution of India does not directly provide
 To highlight their issues and challenges in the society. the right to privacy as a part of the fundamental right but it
 To find out consequences of discrimination in the has been emphasised time to time by the Supreme Court in in
society. some cases therefore it is considered as a part of
 To provide recommendations. fundamentals rights. Hence right to privacy should not be
violated by the state under any circumstances.
Concept of LGBT
In matters of sexuality, the terms people use and identify Issues of LGBT minority Communities in India
with can vary widely from culture to culture. In this report Scope of the Section 377 of IPC is Ambiguous
the terms ‘lesbian’, ‘gay’, ‘bisexual’ and ‘transgender’ Under section 377 of IPC scope of unnatural offences is an
(LGBT) are used because they are the English terms most ambiguous because there is no clear distinction between
commonly used in the international human rights discourse. consenting and coercive sex, against the order of nature etc.
However, this is in no way intended to ignore the diversity of
other terms and identities, nor to deny the cultural Discrimination on the ground of sex
connotations attached to these terms. In the interests of The fundamental right under the Constitution of India
readability and in order to respect the wealth of terms, a prohibits discrimination on the ground of sex. Therefore it is
variety of forms are used in this report, largely violation of fundamental rights of LGBT Minority people as
interchangeably. So, for example, the term “lesbian and gay under.
human rights” should be read as shorthand for the human  Lack of educational facilities.
rights of lesbian, gay, bisexual and transgender people.  Right to life and personal liberty.
 Sexual orientation: this term used to describe patterns  right to live with family
of emotional, romantic, and sexual attraction and sense  right to livelihood
of personal and social identity based on those  Right to speech and expression.
attractions. Sexual orientation exists with exclusive  Right to profession and business.
attraction to the opposite or the same sex. When a  Equal pay for equal work.
person’s sexual and emotional attraction to people of the  Freedom of Religion
same gender is called homosexual orientation if  Right to live with human dignity
attraction towards opposite sex called heterosexual  Right to equality.
orientation and if the attraction towards both gender is
called bisexual orientation people. Family issues
 Gender identity: refers to a person’s experience of self- Lack of communication and misunderstanding between
expression in relation to social constructions of parents and their LGBT children increases family conflict.
masculinity or femininity (gender). A person may have a These problems with communication and lack of
male or female gender identity, with the physiological understanding about sexual orientation and gender identity
characteristics of the opposite sex. can lead to fighting and family disruption that can result in
 Sexual identity is used in this report to refer to sexual an LGBT adolescent being removed from or forced out of
orientation and/or gender identity. the home.
 Transgender: It means someone whose gender differs
from the one when they were born. Transgender people Discrimination at workplace
may identify as male or female or neither the label fits to Discrimination of LGBT persons at workplace is a significant
them. These people’s internal feelings and labels may be factor in the differences in socioeconomic status for LGBT
male, female or transgender. persons. Gay and transgender individuals suffer from
socioeconomic inequalities in large part due to discrimination
Legal discrimination against sexual minorities in India in the workplace. Discrimination directly causes on their job,
Legal discrimination against sexuality minorities operates stability and it result in unemployment and poverty.
through the criminal and civil law systems. The regime of
discrimination can be analyzed under the following heads:
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International Journal of Applied Research

Drug Addict 2. A Report of PUCL-Karnataka (February, 2001) is

Due to loneliness LGBT people becomes drug addict and available
turn toward alcohol, tobacco and other drugs than the general athttp://www.pucl.org/Topics/Gender/2003/sexual-
population. minorities.pdf
3. https://www.psychologytoday.com/basics/sexual-
Victims of crime orientation
These LGBT minority people become victims of violence 4. for more detail see sec. 377 of the Indian Penal Code,
and crime. However, LGBT individuals ‘experiences of 1860
violence and discrimination differ depending on a number of 5. Article 21 of the Constitution of India states that, No
factors including race, gender, income, immigration, status person shall be deprived of his life or personal liberty
and language barriers. LGBT immigrants are more likely to except according to procedure established by law.
face violence based on race and ethnicity and/or sexual 6. Kharak Singh V. State of U. P. AIR 1963 SC 1295 and
identity and/or gender identity. In Muslim Countries, R. Rajagopal v. State of T.N., 1994. 6 S.C.C. 632
homosexuality is heinous crime and for it fine, imprisonment 7. India: Supreme Court rules to overturn decriminalization
and capital punishment has been imposed on LGBT minority of homosexuality, 2013. Retrieved
people.

Injustice on LGBT minority

Human rights and fundamental rights are applicable to all
persons but state is failed to create special legislation which
protects rights of LGBT minority community and to provide
real justice to them. They are also human being and such
treatment should be provided by the state to these people. In
many instances LGBT individuals are not legally protected
from abusive and discriminatory actions.

Following are recommendations

 State has to protect their fundamental rights without any
discrimination.
 Special law should be enacted.
 Provide opportunities in social and economic activities.
 Need to protect human rights.
 Need to take preventive measures in family, public and
domestic violence.
 Government should take initiatives to support employers
in making workplace and workplace culture more
supportive and inclusive of LGBT people.
 Need to change social attitude toward LGBT Minority
people.
 Free health facilities should be provided by the states to
them, including health.
 Need to organize workshops and seminars about their
rights.

Conclusion and Recommendations

On the basis of above discussion it comes to the conclusion
that, LGBT minority people who basically have different
sexual orientation which results in face discrimination in the
family and society. But prima facie they are the human being
and therefore they are entitled to all human rights as well as
fundamental rights in India. Lesbian, gay, bisexual and
transgender people have long been involved in efforts for
racial and economic justice. Today, LGBT organizers and
groups are increasingly drawing attentions between the
movements for LGBT their rights and the movement for
economic, social, political and racial justice. Therefore today
there is needed to protect their rights as a human being in the
society.

References
1. Indrani Sen Gupta. Human Rights of Minority and
Women's: Human rights and sexual minorities, Gyan
Publishing House. 2005; 4:217.

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