Beyond Section 377 | The Quint

Op-Eds by Vidhi Aid · August 27, 2019
Author(s): Akshat Agarwal, Namrata Mukherjee and Diksha Sanyal

Last year, the Indian Supreme Court in its much celebrated verdict in Navtej Johardecriminalised same-sex relationships by reading down Section 377 of the Indian Penal Code. This came a few years after the Supreme Court’s landmark decision in NALSA where it recognised the constitutional rights of transgender persons.

Read together, both judgments lay down strong foundations for the equal citizenship of LGBT+ persons. However now a year after Navtej Johar and almost five years since NALSA, equal citizenship remains a distant reality for the community.

This is quite visible in Indian laws. Ranging from laws that recognise one’s identity and protect against discrimination at the workplace to legal provisions regulating the family and providing remedies for sexual offences, exclusion of the LGBT+ community is striking.


In Search of Answers

Making such laws inclusive, however, is not a simple exercise. While the need for ID documents to recognise identities other than male and female while also facilitating the smooth change of gender identities is obvious, the question of inclusion of LGBT+ relationships in India’s already complex family laws that govern marriage and inheritance, for instance, pose far more difficult questions.

Thus the path for legal inclusion, in all cases, may not simply be to ‘add and stir’ LGBT+ persons in existing laws but in many cases existing legal regimes may have to be re-imagined to account for the lived realities of the community.

Queering The Law

The Vidhi Centre for Legal Policy’s new project, ‘Queering the Law: Making Indian Laws LGBT+ Inclusive’ is a small step in this direction. It maps central laws that discriminate against LGBT+ persons by operating in the binary of male and female or on assumptions that relationship can only be between men and women. It makes the case for legal inclusion in such laws and engages with questions of what the way forward for inclusion could be.

It however does not make any suggestions for direct legislative reform but seeks to act as a resource for the community to discuss, debate and engage with issues of law reform to chart a way forward. The project looks at the broad themes of identity, violence, family and employment and engages with issues within each of these themes.


How Does the Law Deal With Vexed Questions of Identity?

Even though NALSA recognised the right to self-identification of gender identity and constitutional protections for transgender persons, laws continue to operate in the binary of male and female thereby making transgender persons invisible in the law.

Further, the concepts of ‘sex’ and ‘gender’ are often conflated in law and end up being used interchangeably, with there being little clarity in policy-making about where the category of ‘sex’ or ‘gender’ may become relevant. While sex may be biologically determined, gender refers to one’s own self-perception as male, female, transgender or otherwise.

Persons with intersex variations face another set of problems where infants are surgically forced into the sex of either male or female upon birth, without informed consent and with their being no uniform protocol to assign sex.


Should Sexual Offence be Made Gender Neutral?

Laws relating to sexual offences such as rape etc., currently only cover acts of violence committed by a male perpetrator against a female victim thereby excluding violence in the context of the LGBT+ community such as instances when transgender persons or gay men are victims.

However, reforming the law will not only have to account for criminal law provisions in laws such as the Indian Penal Code but also laws relating to criminal procedure and evidence that also operate on the premise of women being victims.

For instance, under evidence laws, there is a presumption of lack of consent if the woman alleges rape but could such presumptions be carried forward if the victim was to be made gender neutral? The question of neutrality has witnessed spirited debates in India with even neutrality of the victim being opposed on the basis that such suggestions ignore the gendered context of violence and power.


Is Marriage Equality the Answer We Are All Looking For?

While there has been a growing demand for marriage equality, it is also important to understand that existing family laws privilege marriage at the cost of other relationships. Such laws are also exclusionary because they do not account for genders beyond the male and female binary and the existence of relationships that may not be based on romantic coupling.

Since only marriage is recognised as the legitimate form of expressing emotional and financial dependency, all other rights flowing out of it such as maintenance, adoption, guardianship and custody continue to reflect the heterosexual, romantic couple. The LGBT+ community often witnesses alternative family structures or families of choice that are currently not legally protected. Further, for even marriage equality to work in practice, laws around intimate partner violence and inheritance will also have to be made inclusive of LGBT+ identities.


How Do We Create Discrimination-Free Workplaces?

LGBT+ persons continue to face discrimination at workplaces on the basis of their gender identity and sexual orientations with policies being absent or inadequate in addressing these issues. In the context of transgender persons there are also significant barriers to access employment in the formal sector which results in a lot of them turning to sex work and begging to make a livelihood.

Lack of legal rights for sex workers and criminalisation of begging in various states renders transgender persons particularly vulnerable to violence in the informal sector. Existing laws such as the Equal Remuneration Act and Prevention of Sexual Harassment laws also fail to account for the LGBT+ persons. The dismal state of protections at workplaces underscores the need for a comprehensive anti-discrimination law.


Queering the law i.e. the process of making laws inclusive however is a work in progress. As the recent experiences with the introduction of the Transgender Rights Bill and the community opposition to it have shown, any process of law reform should take place on the basis of extensive consultations with members the LGBT+ community that it seeks to protect. Through this project we thus hope to facilitate conversations on inclusion within the community so that the equal citizenship of LGBT+ persons becomes an actual reality.

Originally published –

About Akshat Agarwal:

Akshat is a Research Fellow at Vidhi and currently works with the Vidhi Aid initiative. At Vidhi, he has advised on projects relating to the regulation of the digital economy, privacy and federalism. Currently, he is working on research projects relating to LGBT+ rights, withdrawal of care from terminally ill patients and public health. His research interests include public law, human rights, family law and gender and sexuality. Akshat is an alumnus of the National Law School of India University, Bangalore and was previously an Associate at the leading Indian law firm Khaitan & Co., where he worked with their disputes and regulatory practices. He has been published in peer reviewed journals as well as media outlets such as The Wire, LiveMint etc., and has also contributed to international blogs such as the Oxford Human Rights Hub and the IACL-AIDC blog. He served as the Chief Editor of the National Law School of India Review and was also on the editorial board of the Indian Journal of International Economic Law. Link to full bio

About Namrata Mukherjee:

Namrata was a Research Fellow in the Vidhi Aidl. She graduated from the National University of Juridical Sciences (NUJS) with a B.A. LL.B. (Hons.) in 2016. At NUJS her areas of engagement included human rights, labour law, inter-disciplinary research, gender, sexuality and the law, and philosophy. Prior to joining Vidhi, she interned with advocates as well as in organisations such as the Alternative Law Forum and Centre for Equity Studies.

About Diksha Sanyal:

Diksha was a Research Fellow at Vidhi and was engaged with the Justice, Access, and Lowering Delays in India (JALDI) Project. She graduated from NUJS in 2016 and thereafter worked as a litigator and researcher at the Centre for Law and Policy Research, Bangalore. At Bangalore she was involved in constitutional litigation and lawyering in the public interest on issues pertaining to disability rights, the right to education and health, among others. She is interested in feminist and queer jurisprudence, adjudication of socio-economic rights and constitutional theory.