The Delhi High Court on Aug. 13 directed the Indian government to clarify its stance on non-consensual sexual offenses against LGBTQ people and men under the country’s revised penal code. The court’s order has spotlighted the gaps in the legal framework, urging the government to address the protection of these vulnerable groups within the new law.

The Indian LGBTQ community on Sept. 6, 2018, celebrated one of its most significant legal victories when the Supreme Court struck down Section 377 of the country’s colonial-era penal code that criminalized consensual same-sex sexual relations. The Supreme Court invalidated the law for consensual acts, but it retained provisions that concern non-consensual sex to protect transgender people and other vulnerable communities.

The Bharatiya Nyaya Sanhita, which revised the existing penal code, took effect on July 1 and entirely omits the law.

“Where is that provision? There is no provision at all,” asked the court. “There has to be something. The question is that if it is not there, then is it an offense? If an offense is not there and if it is obliterated, then it is not an offense.”

The petitioner who approached the Delhi High Court said the omission of protections in the new law could have unforeseen consequences. The petitioner, lawyer Gantavya Gulati, argued that even after the Supreme Court’s 2018 ruling that decriminalized consensual same-sex sexual relations, Section 377 continued to provide crucial protection to men and LGBTQ people from non-consensual sexual acts.

The Parliamentary Standing Committee on Home Affairs, in its 2023 report on the Bharatiya Nyaya Sanhita, noted that omitting Section 377 would result in the absence of penalties for non-consensual sexual offenses against men and trans people, and for acts of bestiality. The committee, therefore, recommended including Section 377 in the Bharatiya Nyaya Sanhita.

The Supreme Court in its 2018 ruling referred to the portions of Section 377 that criminalized consensual sex as “irrational, indefensible, and manifestly arbitrary.” The Supreme Court at the time emphasized authorities used Section 377 as a weapon to harass LGBTQ people, leading to widespread discrimination.

“Persons who are homosexuals have a fundamental right to live with dignity,” said the Supreme Court. “We further declare that such groups (LGBTQ) are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further direct that Section 377, insofar as it criminalizes homosexual sex and transgender sex between consenting adults, is unconstitutional.”

Acting Chief Justice Manmohan and Justice Tushar Rao Gedela on Aug. 12 led a bench of justices who heard the case that Gulati brought.

The petitioner argued that “the absence of Section 377 of the Indian penal code poses a threat to every individual, but especially to LGBTQ persons.” The petitioner also highlighted that the Bharatiya Nyaya Sanhita does not include any protections for a man who is sexually assaulted by another man.

The Indian government contended the court could not compel parliament to enact a specific provision, even in the presence of a legal anomaly. The government’s counsel emphasized a motion had already been submitted, highlighting this issue to the national government, and it is currently under consideration. The High Court, led by Manmohan, in response directed the government to return on Aug. 28 to clarify its position on non-consensual sexual offenses in light of Section 377’s omission.

The remnants of Section 377 after the 2018 judgment were gender-neutral, offering protection regardless of gender. When the Bharatiya Nyaya Sanhita came into effect, however, the government completely omitted this provision from the new law. It failed to introduce an alternative to protect male rape victims and trans people. Section 63 of the Bharatiya Nyaya Sanhita instead defines rape in a highly gendered manner: As an act where a man’s penis penetrates a woman’s vagina, mouth, urethra, or anus, or compels her to do so with him or another person. This definition narrows the scope of the law, failing to provide adequate protection for LGBTQ individuals.

A report the Guardian published in 2018 found 71 percent of men respondents reported being abused, yet 84.9 percent of them never disclosed their experiences to anyone. The report highlighted the primary reasons for this silence were shame (55.6 percent), followed by confusion (50.9 percent), fear (43.5 percent), and guilt (28.7 percent). The findings shed light on the profound psychological barriers that prevent male survivors from seeking help or sharing their stories.

Gulati recently spoke to the Washington Blade about the case.

He said his concern is the Bharatiya Nyaya Sanhita in its current form primarily frames rape as an act committed by a man against a woman. This narrow definition, he argued, fails to encompass the full spectrum of sexual abuse endured by trans people and men, particularly those within the LGBTQ community.

Gulati emphasized that while there are existing laws that address various forms of sexual violence, they often fall short in specifically protecting these marginalized groups in the way that is urgently needed. He underscored this significant omission within the Bharatiya Nyaya Sanhita indicates a pressing need for reform. Gulati suggested the Bharatiya Nyaya Sanhita must be thoughtfully revised and expanded to ensure that every person, regardless of their gender or sexual orientation, is afforded the protection they deserve from sexual abuse.

“Whether Parliament’s decision was deliberate or not, the removal of Section 377 provision has raised concerns,” Gulati told the Blade. “Section 377 of the Indian penal code covered important issues, like bestiality and other non-consensual acts, that are not clearly addressed in the BNS (Bharatiya Nyaya Sanhita). By leaving out this provision, the law may no longer provide the same level of protection against these acts. It’s a decision that has significant consequences, especially for those who are vulnerable.”

He also said the roles of the courts and parliament are different in a democracy.

The courts’ job is to interpret the law and make sure it is applied fairly, while parliament is responsible for creating and changing laws. Gulati said courts can point out when a law is missing or needs improvement, but they cannot force parliament to make a specific law. Gulati said that the government’s position reflects this balance of power, acknowledging only elected representatives have the authority to make laws.

Sudhanshu Latad, the dedicated advocacy manager at Humsafar Trust, an organization at the forefront of promoting LGBTQ rights in India, also spoke with the Blade.

Latad reflected on the crucial role the judiciary has historically played in bridging gaps within existing legal frameworks, particularly when they fall short of safeguarding specific groups or subgroups. Latad said the Delhi High Court’s decision to hear the Section 377 case is emblematic of this judicial intervention.

“We hope that the Honorable Delhi High Court orders the parliament to create a provision to separately address protection of transgender persons and LGBTQ+ community or reinstitute Section 377 until such provisions are made separately in BNS (Bharatiya Nyaya Sanhita),” said Latad. “Section 63 of BNS (Bharatiya Nyaya Sanhita) primarily presents itself to be written with a heteronormative perspective.”

“While if read with the NALSA vs Union of India judgment 2014, trans women may be able to seek recourse under this, there is an element of ambiguity for assigned males at birth nonbinary persons,” he added. “It does though take into consideration any person raping a woman as it refers to objects being used for the purpose of rape, which may be the case in an instance of woman or nonbinary persons raping a woman.”

Latad told the Washington Blade the Bharatiya Nyaya Sanhita’s introduction is a pivotal point of transformation for the Indian legal system and strengthening it to a position to be able to govern and protect a country with the highest population in the world may be a strenuous affair. He said rape and other sensitive topics may need longer discussions.

“Hence, I feel this is a great opportunity — a clean slate — to introduce a robust gender-neutral law against rape,” said Latad. “I am hopeful that parliament will view this the same way and will take into consideration the recommendations made by the Standing Committee. If they do not retain Section 377 to protect consent, I hope they introduce something equivalent that protects every citizen of the country from rape.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

The Indian Home Ministry in a surprising development on July 15 sent a note to state and territorial officials and prison administrators that acknowledges queer prisoners regularly face discrimination and violence because of their sexual orientation and gender identity.

The government has asked all states and territories ensure queer people receive equal rights in their prison. The government has also instructed state and territorial officials to prevent discrimination in relation to accessing goods and services inside their prisons, especially visitation rights.

The directive mandates prison officials allow inmates to meet with family members, relatives, friends, and legal representatives at least once every two weeks.

Referencing the Model Prison Manual, 2016, the government emphasized prisoners should be granted reasonable facilities to see or speak with their family members, relatives, friends, and legal representatives. This access is crucial for preparing an appeal, securing bail, or arranging the management of property, and family affairs. The directive is also seen as a significant effort to ensure LGBTQ inmates’ rights and dignity are upheld.

The ruling government, led by Prime Minister Narendra Modi, has, for the first time, explicitly referenced the “queer community” in a directive that seeks to end discrimination against them. This directive marks a significant shift in government policy.

It states conversations during these interviews should be limited to private and domestic matters, explicitly prohibiting any references to prison administration, other prisoners, or politics. 

According to the Model Prison Manual, 2016, Rule 8.03 states the number of people who may interview a prisoner at one time shall ordinarily be limited to three. The manual also directs interviews with female prisoners should, if possible, take place in female-specific cells or rooms.

“It is reiterated that these provisions equally apply to members of the queer community, allowing them to meet a person of their choice without any discrimination or judgment,” it reads.

The Home Ministry has also urged authorities to make prison officials at all levels more sensitive to queer inmates.

It emphasized the importance of treating all people equally in a fair and just manner, with a particular focus on ensuring that no one, especially those belonging to the queer community, faces any form of discrimination.

“Prisoners may communicate with their visitors, namely family members, relatives and friends through physical or virtual mode, under proper supervision of prison authorities,” reads the directive. “Visitors to inmates shall be verified/authenticated through biometric verification/identification.”

The directive also notes foreign prisoners may communicate with their family members and consular representatives, as rules dictate.

According to the report “Lost Identity: Transgender Persons in Indian Prisons,” the Commonwealth Human Rights Initiative published, a total of 214 transgender people were incarcerated in different prisons across the country between May 2018 and April 2019.

The report noted a glaring lack of awareness programs among prisoners regarding the legal recognition of trans people as a legal identity, with the sole exception of Karnataka state since 2014. The report also highlighted a significant oversight: No trans people had been hired by prison departments in any state or territory.

The report further pointed out none of the prisons included any courses in their Prison Training Institute’s curriculum that focused on awareness and sensitization of LGBTQ communities and their rights.

The Supreme Court in 2018 took a monumental step towards prison reform.

A 3-member committee that now retired Justice Amitava Roy examined the myriad issues facing the Indian prison system and made a series of recommendations. Persistent prison overcrowding and overall conditions are two of the myriad issues the committee reviewed.

The committee in 2022 issued its report, which included a chapter titled “Transgender Prisoners.”

This chapter emphasized efforts to separate trans people from other prisoners for safety and security reasons must not lead to their seclusion or isolation. It also underscored the need to ensure measures undertaken to protect trans prisoners do not inadvertently result in their marginalization, highlighting the importance of maintaining their integration and dignity within the prison community.

Sadam Hanjabam, founder of Ya.all, northeast India’s first registered LGBTQ youth-led organization that the U.N. recognizes, told the Washington Blade the ministry’s announcement is a good step. He said officials are not only looking at transgender community but LGBTQ as a whole spectrum.

“It is hopeful that at least people will have access to services without discrimination whether legally or in prison services,” said Hanjabam. “We hope that it could be this is towards more inclusive step.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on X at @mohitkopinion.

On July 10, as India’s Supreme Court was engrossed in a pivotal review petition concerning marriage equality, an unexpected twist unfolded.

Justice Sanjiv Khanna, the court’s most senior judge, made the surprising decision to recuse himself from considering the pleas. This unforeseen development added a dramatic layer to a historic and closely watched judicial review.

The pleas seek a review of the Supreme Court’s ruling from last year that declined to legally recognize same-sex marriage. Reports indicate Khanna cited personal reasons for his recusal, adding a layer of intrigue to the already high-stakes proceeding.

In the wake of Khanna’s unexpected recusal, the Supreme Court is set to undergo a significant shift.

According to the court’s procedural rules, Chief Justice Dhananjaya Yeshwant Chandrachud will reconstitute a new 5-judge constitution bench. This pivotal move marks a crucial step in the ongoing legal saga, ensuring the review of the marriage equality case continues with a fresh panel at the helm.

The Supreme Court, led by Chandrachud, on July 9 made a crucial decision regarding the review petition. It declined to grant an open court hearing, stating the constitutional bench review would be conducted in chambers rather than in open court.

The Supreme Court’s clarification came after petitioners, challenging last October’s marriage equality ruling, fervently urged the top court for an open court hearing. Their plea sought transparency and public scrutiny, hoping to bring the issue back into the spotlight.

The court in its October 2023 ruling said the power to extend marriage rights to same-sex couples lies with parliament, not the judiciary, underscoring the need for legislative action to address this crucial issue.

Although the top court refused to grant marriage rights to the queer community in India, it did recognize their right to live free from discrimination. The court affirmed queer people should have the same access to goods and services as their heterosexual counterparts, ensuring protection against bias and unequal treatment in everyday life. This decision, while falling short of full marriage rights, marked a crucial step forward in the fight for equality and dignity for the LGBTQ community in India.

The Supreme Court last year in a landmark ruling said transgender people in heterosexual relationships have the right to marry under the existing legal provisions.

Neeraj Kishan Kaul brought the review petition before the Supreme Court, requesting an open hearing on the case seeking legal recognition of same-sex marriages.

The petition specifically addressed the inclusion of same-sex marriages under the Special Marriage Act (SMA) of 1954, the Foreign Marriage Act of 1969, and the Citizenship Act of 1955, as well as under common law and other existing statutes. This plea highlighted the broad legal framework that could accommodate same-sex marriages, urging the court to reconsider its stance in a transparent and public forum.

The Supreme Court last October also declined to grant adoption rights to the LGBTQ community. The court upheld Regulation 5(3) of the Indian CARA Regulations, asserting that this provision could not be declared void.

According to CARA Regulations, specifically Regulation 5(3), “No child shall be given in adoption to a couple unless they have at least two years of a stable marital relationship, except in cases of relative or step-parent adoption.” This regulation underscores the stringent criteria set for adoption, emphasizing the importance of a stable and legally recognized marriage, thereby excluding LGBTQ couples from adopting children under the current legal framework.

The regulation outlines the eligibility criteria for prospective adoptive parents. According to Regulation 2(b) and (c), a single female can adopt a child of any gender, whereas a single male is not eligible to adopt a girl child.

Although the 2023 judgment did not favor the LGBTQ community regarding marriage equality, the Supreme Court made a significant acknowledgment. It recognized being a member of the LGBTQ community is a natural phenomenon and not an “urban or elite” phenomenon, as previously suggested by the government.

Marriage equality in Thailand gives Indian activists hope; challenges remain

Negha Shahin, who in 2022 became the first trans actress to win a Kerala State Film Awards, told the Washington Blade that LGBTQ Indians continue to face systemic discrimination and legal challenges, particularly in the fight for marriage equality.

“We live in 2024 when humanity has made remarkable advancements in science and technology. We understand the complex theories behind black holes and have successfully sent rockets into space. Yet, it is deeply disappointing that we still fail to recognize and uphold the basic rights of the queer community,” said Shahin. “For years, activists and allies have been advocating for the recognition of same-sex marriages, striving for a society where love and commitment are acknowledged and respected regardless of gender or sexual orientation.”

She said the Supreme Court’s denial of marriage rights for same-sex couples is a major setback. Shahin added it underscores the gap between technological advancements and social progress.

“Denying this right to same-sex couples not only perpetuates inequality but also inflicts emotional and social harm on a significant segment of our population,” said Shahin. “We must increase the chances of achieving marriage equality by pushing for legislative changes.”

“Our lawmakers have a responsibility to create laws that reflect the values of equality and justice for all citizens,” she added. “Without ensuring the basic rights of gender and sexual minorities, we cannot truly claim that India is progressing. It is time for India to bridge this gap and ensure that the rights of the LGBTQIA community are fully recognized and protected. Only then can we truly say that we are growing as nation.”

Shahin discussed the recent passage of a marriage equality law in Thailand, which shares a maritime border with India. (Same-sex couples can also legally marry in Nepal, which borders India.)

She noted Thailand is a monarchy, whereas India is a democracy. Shahin told the Blade that one may have expected India to extend marriage rights to same-sex couples first, given the country’s democratic values and its emphasis on equality.

“Seeing a neighboring country like Thailand legalize same-sex marriage may create pressure on Indian lawmakers to address the issue more seriously,” she said. “It highlights the disparity in rights between countries and could push Indian politicians to consider similar legalization to avoid falling behind in terms of human rights.”

Souvik Saha, founder of People for Change, one of India’s premier LGBTQ rights groups, told the Blade that as an activist who works for LGBTQ rights in Jharkhand state, he sees recent developments regarding the Supreme Court’s review petition on same-sex marriage as a significant step forward.

“The recusal of a judge and the constitution of a new bench indicate a reevaluation of existing legal perspectives, potentially paving the way for progress towards marriage equality in India,” said Saha. “The global trend towards marriage equality, such as Thailand’s recent move, can certainly influence India’s judicial decisions and societal perceptions.”

“Thailand’s legalization of same-sex marriage in 2024 reflects a growing global acceptance and recognition of LGBT rights. This shift is noteworthy because it demonstrates that cultural attitudes and legal frameworks are evolving to embrace equality and human rights,” he added.

The Supreme Court in 2018 decriminalized consensual same-sex sexual relations in India.

Saha said there has been increasing momentum towards broader inclusion and equality since that landmark ruling. The U.N. Development Program’s 2020 report on LGBTQ rights in India he notes indicates this progress has been uneven.

The UNDP notes legal recognition and protection against discrimination are crucial steps towards achieving full equality. The involvement of civil society organizations and advocacy groups, such as those in Jharkhand, plays a crucial role in pushing for inclusive policies and legal reforms.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached [email protected]. He is on Twitter at @mohitkopinion.

When schools in India’s Kerala state reopened on June 3 after a long summer break, students walked into classrooms with the usual excitement. This year, however, they were greeted with a surprising and groundbreaking change. The textbooks they received were unlike any they had seen before — filled with gender-neutral images and instructions.

The initiative, driven by the state’s commitment to fostering equality from a young age, aimed to break down traditional gender roles and promote inclusivity. Students found pictures of boys and girls engaging in various activities without gender-specific expectations.

One of the images showed the father grating coconut in the kitchen while his wife cooked food. Another picture showed the father cooking food for his daughter.

In an unprecedented move, some schools in Kerala have committed to gender neutrality beyond textbooks, introducing gender-neutral uniforms. This change marks a significant departure from the traditional Indian school uniform, where boys typically wear shirts and pants, and girls don skirts, often in different colors. Many schools in Kerala have introduced the same school uniform for all students including shirts and knee-length pants.

More than 12 schools in Kerala have shifted to gender-neutral dresses so far. While there are a total of 4,504 government-run schools in Kerala, the Kerala Child Rights Commission last year decided to remove the use of words like “sir” and “madam” for teachers and instead encouraged to use of universal terms like “teacher” on school premises, but the Department of General Education, a state government body that overseas education in schools, refrained from any changes.

The National Council of Education Research and Training, a government-autonomous body of India’s Education Ministry, in 2023 introduced a manual that directs schools to implement transgender-inclusive curricula, safe washrooms, and gender-neutral dress for students to prevent gender-based discrimination and violence.

The Mumbai-based Aditya Birla World Academy, a private international school, in 2022 adopted gender-neutral uniforms and language in its 138 branches across the country. The school replaced “ladies” and “gentlemen” and other gender-specific words with “dear guests” or “hello everyone.” The school sent an email to parents that told them how to reduce gender differentiation in uniforms so students of various genders and those who are gender non-conforming or questioning their gender can feel safe discovering and expressing themselves at the school.

The Aditya Birla World Academy has also established the Rainbow Club, an LGBTQ support group led by students and guided by teachers, to create an environment of activism in the classroom, shifted to allow students to choose the length of their hair as long as it is neatly tied up, along with other activities that include workshops with teachers and parents under the initiative of “move away from the cis heteronormative environment in the education world.”

While talking to the Washington Blade, Harish Iyer, an equal rights activist, said children should be allowed to dress the way they want. He also said the idea of uniforms in schools is that a student should feel included, regardless of what strata of society to which they belong.

“Adding gender-neutrality to uniforms would only extend the whole purpose of the uniforms,” said Iyer. “It should be appreciated by all as there is no question of any debate here. What should be debated is that some people are forced to wear what is not part of their gender identity.”

Iyer told the Blade there should not be any gender assigned to clothes. He said uniforms should be based on comfort and not based on gender.

Indrani Chakraborty, a mother of a trans child and an LGBTQ activist based in northeast India, told the Blade the Kerala government’s decision to implement gender-neutral uniforms is welcome. She said her organization, Annajoree, is also trying to sensitize people on the same issue in Assam state.

“We are promoting safe-spaces in schools in Assam so that kids can complete their basic education without any mental harassment at school,” said Chakraborty. “Kerala is doing great work, it’s a great initiative and everyone should come forward to support it. It should be everywhere in our country.”

She also told the Blade that schools not sensitized to LGBTQ issues creates a fear of bullying. Students, according to Chakraborty, in particular face bullying and they are not allowed to join classes in their preferred uniforms and do not have access to gender-neutral bathrooms. 

She has started an initiative called the “No More Holding Pee Initiative” in schools.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion.