Despite its decreasing overall democracy scores, India has progressed forward with LGBT rights on the last decade. Still, LGBT activists and international organisations are not satisfied with the recent developments and the ruling party BJP seems to be trapped in between.
On 6th of September 2018 a landmark decision was given in favour of LGBT rights in India, parts of Section 377 of Indian Penal Code that criminalises homosexuality were declared unconstitutional. The Penal Code was introduced during the British rule of India in 1861. Before that homosexuality was not a criminal act in India. In old Hindu and Indian texts, it is possible to come across homosexuality and in most cases, it was seen natural and equal to heterosexuality.
The ruling party, Bharatiya Janata Party’s (BJP) stance on LGBT rights is unclear. Just two months before the decriminalisation of homosexuality in India, BJP MP Subramanian Swamy said “It (homosexuality) is not a normal thing. We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured.” (The Times of India, 2018). While BJP spokesperson Shaina NC told the press in 2015 that “We are for decriminalising homosexuality. That is the progressive way forward.” (Ratnam, 2015). Clearly BJP has internal conflicts regarding the issue. This conflict might be caused because BJP does not want to lose votes from either its conservative or progressive voters. Instead, BJP told the press that they trust to the “the wisdom of the court” on the topic, clearing themselves from expressing any further opinion. (Saberin, 2018)
Also, another major change happened more recently in 2019 as Indian Parliament passed The Transgender Persons (Protection of Rights) Bill. However, this bill was controversial from the start and the current version is seen as a bill that violates and disrespects trans people rather than protecting them. While the Bill recognises self-declared identity, it requires a “certificate” to change the legal gender. To get this certificate, the person applying should provide a gender change surgery certificate provided by a hospital. This second part of the process requires persons to “qualify” for their self-declared gender and even can push people for surgeries while it is not desired in the first place. This Bill itself is against the 2014 decision in NALSA vs. India by Indian Supreme Court where the court declared that “any insistence for [sex reassignment surgery] for declaring one’s gender is immoral and illegal.”. (Knight, 2019) In the Trans Rights Bill, by requiring a medical certificate to change legal gender, the BJP dominated parliament shows that they misunderstood the nature of being transgender.
Another point that is worth mentioning that here is no official data regarding LGBT people in India. This also means that there are no official statistics regarding crimes against LGBT people as well. In 2012, BJP government reported to the Supreme Court that there are 2.5 million gays in India. This number very misleading and is a huge underestimation because it is only based on self-declared gays and the numbers were calculated when homosexuality was still a crime. (BBC, 2012) This is a huge gap in the largest democracy in the world, meaning that statistics cannot be used to advocate LGBT rights. Or in a similar manner, governments cannot be held accountable for the impact of their policies on LGBT people.
India has been recently criticised for its problems in electoral rolls. It is estimated that overall, in India 120 million people have been missing from electoral rolls. Apart from this huge amount of people who lack their right to vote, the people who are missing from electoral rolls are mainly minorities and disadvantaged people. Out of the 120 million people missing, 40 million are Muslims and 30 million are Dalits. (Malhotra, 2019) This situation raises concerns over the protection of LGBT people’s right to vote. If there is no official data on LGBT people in India, it is impossible to create data and statistics on cases like electoral roll erasures.
While legal changes are happening in favour of the LGBT people in India, changes are much slower in daily life especially. Here, BJP has a duty as the executive to make sure that rights granted to the LGBT people are being implemented in the real life. According to a 2019 survey conducted by the Azim Premji University, almost 50% of the respondents think that same-sex relationship should not be accepted in the society. (Azim Premji University, 2019) This creates huge security issues for the LGBT community in India and suspicion on the implementation of anti-discrimination principles.
BJP is not the only party in India that lacks support and policy coverage for LGBT people. Many LGBT people believe that there are no sufficient LGBT related policies in almost any parties agendas. The DW interview with transgender people in India states that most transgender do not vote even though they recently gained he right to vote. (Krishnan, 2014) Also another interview by Hindustan Times show that LGBT people feel that political parties do not really care about LGBT people. (Jyoti, 2019) This situation is a result of LGBT people being excluded in social and political life of India for decades. In other words, millions of people in India have no political representation available for them.
From the democratic erosion perspective, the LGBT rights and representation represent a great importance. Currently India is enjoying improving LGBT rights thanks to still independent judiciary and an active LGBT right advocate base. The steps India took are just the beginning, the modernisation of a 150-year-old Victorian-era legislation. While homosexuality is decriminalised in India, same sex marriages, adoption for same-sex couples and homosexuals serving in military are still prohibited. The lack of official data is very concerning creating problems of transparency and advocacy. On the other hand, LGBT rights are still under threat as India is facing a deteriorating judicial independence and power as well as a huge lack of representation of LGBT people in political arena. Just like Muslims and Dalits in India, LGBT people are also being harmed from the policies of the BJP government, and not able to find a voice in political arena.
Cover Image: 4th Delhi Queer Pride 2011, Credit: Daniel Berehulak
Abraham, R. (2017, 11 30). All you need to know about the Transgender Persons Bill, 2016 . Retrieved from The Hindu: https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-2016/article21226710.ece
Azim Premji University. (2019). POLITICS AND SOCIETY BETWEEN ELECTIONS. Bengaluru: The Centre for Regional Political Economy (CRPE).
BBC. (2012, 03 14). India has 2.5m gays, government tells supreme court. Retrieved from BBC : https://www.bbc.com/news/world-asia-india-17363200
Jyoti, D. (2019, 03 25). My first vote: ‘Parties don’t care about LGBT people’. Retrieved from Hindustan Times: https://www.hindustantimes.com/india-news/my-first-vote-parties-don-t-care-about-lgbt-people/story-2p4dTa6dg5FtJKamYRhFLK.html
Knight, K. (2019, 12 05). India’s Transgender Rights Law Isn’t Worth Celebrating. Retrieved from Human Right Watch: https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating
Krishnan, M. (2014, 03 26). Indian transgender community not keen on voting. Retrieved from DW: https://www.dw.com/en/indian-transgender-community-not-keen-on-voting/a-17520812
Malhotra, A. (2019, 04 30). Allegations of mass voter exclusion cast shadow on India election. Retrieved from Aljazeera: https://www.aljazeera.com/news/2019/04/allegations-mass-voter-exclusion-cast-shadow-india-election-190427103455251.html
Ratnam, D. (2015, 01 14). BJP supports decriminalization of homosexuality: Shaina NC. Retrieved from LiveMint: https://www.livemint.com/Leisure/XCOl7cJw5t3DgnQZsFYIFO/BJP-supports-decriminalization-of-homosexuality-Shaina-NC.html
Saberin, Z. (2018, 09 06). India decriminalises gay sex in landmark verdict. Retrieved from Al Jazeera: https://www.aljazeera.com/news/2018/09/india-decriminalises-gay-sex-landmark-verdict-180906051219637.html
The Times of India. (2018, 07 10). Being gay is against Hindutva, it needs a cure: BJP MP Subramanian Swamy. Retrieved from The Times of India: https://timesofindia.indiatimes.com/india/being-gay-is-against-hindutva-it-needs-a-cure-bjp-mp-subramanian-swamy/articleshow/64927333.cms