Author: Nayanshree Sinha

Introduction

LGBTQ+ is a term which stands for lesbian, gay, bisexual, transgender, and queer community. LGBTQ+ represents a spectrum of gender identities and sexual orientations beyond just male and female, acknowledging non-binary, genderqueer, and other identities. LGBTQ people perceive different gender identities, which must be respected and appreciated for an inclusive society.

The ‘+’ in LGBTQ+ represents people who are part of the community apart from the people who are LGBTQ. The term LGBT was first used in June 1969 during the Stonewall riots but it became famous in late 20^th century. Earlier, this community was unrecognised but after many initiatives by this community, such as Stonewall riots, LGBTQ+ Movement, pride movement and others, this term became famous worldwide. People all over the world understood about other identities which were different from male and female. Various people started recognising and accepting their identity. This helped in engaging a greater number of people in this movement, making this movement famous worldwide.

The symbol of this movement is a rainbow flag. The members of LGBTQ+ are still fighting for the recognition of their rights.

What does each letter in LGBTQ mean?

• L: (lesbian) – a lesbian is a woman who is sexually, emotionally, and romantically attracted to Other women.
• G: ( gay) – a gay is a man who is sexually, emotionally, and romantically attracted to Other men.
• B: (bisexual) – a bisexual is a person who is attracted sexually, emotionally and romantically to more than one gender.
• T :(transgender) – a person whose gender identity differs from the sex they were assigned at birth.
• Q ( queer ) – queer is an umbrella term used for people who are exploring their sexual orientation or gender identity.

Terminologies: gender identity, sexual orientation, and sex

Gender identity is a person’s deeply felt a sense of being a male or a female. It may expand from the categories of man and woman. It may or may not be similar to the sex assigned at birth.

Sexual orientation refers to a person’s emotional, sexual, and romantic feeling with person of same or different sexes. Like, Asexual people experience little or no sexual orientation.

 Sex is a biological term, which means that a person’s gender is assigned through their genital at birth.

Traditional/stereotype belief

The traditional system of India considers only two gender-male and female. Earlier there was no recognition of other gender. After various movements, India recognised transgender. In 2014, the Supreme Court gave the transgender community the right to be called the third gender in the NALSA judgement. However, still the society feels threatened. If any gender does not follow the established behaviours set by the society based on their gender, it harms the morals of the society.

For example, the basic mindset of society is – women are always considered submissive, doing household chores. Men are considered as assertive, bossy, and breadwinner of the family. The people who differ from the binary spectrum of expected gender behaviour remained largely invisible and unrecognised because of the fear of stereotypical mindset of the society and lack of information.

Rights of LGBTQ+

LGBTQ+ community is subject to the same laws and orders as well as enjoy the same rights as other citizens of the country. However, in real life they face discrimination and violence by the people for just being who they are. They are not allowed to live a dignified life. Healthcare services are often not provided to them.

They are often disregarded in the society. International human right laws recognise the rights of the LGBTQ people and takes various measures in safeguarding their rights. Yet, many countries laws are against the LGBTQ people and still hasn’t recognised this community. 60 countries criminalise same sex relationships. India is one of those countries which is against the same sex marriage. However, India has decriminalised Article 377, which criminalised homosexuality between consenting adults in the year 2018 as it was against the principle of equality, liberty, dignity under Article 14, 19 and 21.

Section 377

Section 377 of the IPC says that “whoever voluntarily has intercourse against the order of nature, with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment, which may extend to 10 years with fine.”

This section was established by the Britishers in the year 1861, which was effective in India even after independence, which criminalised consensual homosexuality between the two adults.

In the year 2016, Navtej Singh Johar filed a writ petition to the Supreme Court of India challenging the constitutionality of section 377.

Moreover, under article 21, the petition also demanded recognition of the right to sexuality, sexual autonomy and the right to choose sexual partner of their own choice guaranteed by the Constitution. The petitioner demanded the recognition of all sexual orientation.

Judgement

The judgment was delivered by a five-judge bench. They accepted the fact that Article 377 violated the rights of LGBTQ community and also observed that section 377 promoted discrimination on the basis of different sexual identity. Considering the supremacy of the fundamental rights- Article 14(right to equality), Article 15 (abolition of discrimination), Article 19 (right to freedom) and Article 21(right to life and liberty). The judges unanimously held section 377 to be unconstitutional. However, the court clarified that consent must be free, voluntary and devoid of any force or coercion.

Views of Supreme Court on same marriage

The Supreme Court upholds the constitutionality of Special Marriage Act.

The judgement was delivered on October 2023 by 5 sitting judge of Supreme Court.

The Supreme Court followed the majority views. It was held that non-heterosexual couples cannot claim the right to marry each other because there is no fundamental right that allows same sex marriage. Out of five, two judges, namely chief Justice DY Chandrachud and chief Justice Sanjay Kishan supported the same sex marriage rule for establishing an inclusive society and upholding Article 15.

However, the majority views of justices held that there is no legal provision to recognise and grant legal status to non-heterosexual relationships. It was in the realm of the legislature to amend or improve the Special Marriage Act of 1954 to bring same sex marriage in India.

Introduction

To protect our environment, the supreme law of the land known as the Constitution has several legislative enactments to conserve our degrading environment. Due to rapid increase in the population of a country, natural resources are declining at an alarming rate. The makers of the Constitution felt the necessity of adding environment protection laws in the middle of 20th century.

The principle of sustainable development, consisting of 17 goals, has also been adopted which needs to be achieved for providing the basic needs to our future generation without compromising our present needs.

Major Changes in the Field of Environmental Law

The major changes in the environment started Mainly after the industrial revolution. Therefore, there are very few or null number of laws made for the environment before the industrial revolution. The first concern about the changes in the environment was started in 1974 by a Stockholm conference. It was the first conference which talked about preserving our environment and demanded to pass several environment protection duties for its member countries. India was also a member country of the Stockholm conference.

After the Stockholm conference, India passed several Acts for conserving the environment.

1. The water (prevention and control of pollution) Act, 1974.
2. The air (prevention and control of pollution) Act, 1981.
3. The environment (protection) Act,1986.
4. The wildlife (protection) Act, 1972.
5. The national Green Tribunal Act,2010.

Constitution law For Protection of Environment

Some basic constitutional laws along with these acts which work for the protection and enhancement of environment are:

1)  Article 47 of the Directive Principles of State Policy (DPSP) which provides for the protection and improvement of environment.

2) Article 48A of the Directive Principles of State Policy (DPSP) Having the same objective as Article 47.

3)Article 51(A)(g) of the fundamental Duties provides that it is the fundamental duty of every citizen to protect and improve natural environment.

Major Concern and Landmark Case Laws Regarding Environmental law

The major concern of today’s date is that despite having numerous Acts and laws is our environment really protected?

The answer is of course No. Our environment is not protected. Although these legislatures’ main objective is to provide a wholesome solution to environment issue but it has been observed that lack of proper legislation has failed in fulfilling its objectives. Case laws reflect the inability of the government of India, both at the Centre and the state level. The loopholes in the system of our country is leading to degradation of the environment.

M.C. Mehta V. Union of India (Ganga pollution case)

I would like to highlight my point about the lack of implementation of rules using a relevant case law – M.C. Mehta V. Union of India (Ganga pollution case) Supreme Court of India

M.C. Mehta filed a writ petition to prevent the leather tanneries of Kanpur from disposing of the domestic and industrial waste and influence in the Ganga River, Without treatment. The court stated the importance of the water (prevention and control of pollution) Act,1974.

This act was passed to prevent and control water pollution and maintain water quality. This act established central and state boards and conferred them with power and functions relating to the control and prevention of water pollution. It was noted that the leather industry is one of the significant industries beside paper and textile consuming large quantities of water. Most of the water use is discharged as waste water. The waste water contains toxic substances that deplete the oxygen content of the clean water in which they are discharged. The result is the death of the aquatic animals. The court held that despite provisions in the water act, no effective steps were taken by the state board to prevent the discharge of effluents into the river Ganga. Also, despite the provisions in the environment protection act, no effective step was taken by the central government to prevent the public nuisance caused by the tanneries in Kanpur.

Taj Trapezium case

Another major case law which could be highlighted here is the Taj Trapezium case filed by M.C. Mehta again. He is a legal practitioner by profession but an environmentalist by hobby. He visited the Taj Mahal and observed that its white marble was turning yellow. So, he filed an PIL in Supreme court regarding this problem because he knew that this had been caused by pollution. The taj trapezium zone is a zone of more than 10,000sq.km which is made to protect the Taj Mahal from pollution. The emission of pollutant gases like sulphur dioxide mixes together with oxygen and causes Acid rain over the Taj Mahal. This caused the limestone of the Taj Mahal to turn yellow. Taj Mahal is one of the seven wonders of the Earth but the pollutants emitted from the industries in the nearby areas had degraded even this.

M.C. Mehta V. Kamal Nath

The growth of industrialisation can be regarded as the major issue for the cause of pollution. The industrial owners try to deceive the laws made by the constitution by their money. In the case of M.C. Mehta V. Kamal Nath, Kamal Nath was the minster of environment and forest of Himachal Pradesh. He granted a lease deed of forest land to the Motel company for the construction of a hotel. This shows the loopholes in the implementation of the legal laws by the ministers of India for the safety of the environment. However, the independent judiciary applied the doctrine of public trust which means that certain Common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Public Trust Doctrine primarily rests on the principle that certain resources like air sea, water and the forests have such a great importance to the people as a whole and it would be unjustified to make them a subject of private ownership. Therefore, the lease deed was declared invalid by the court.

Conclusion

The Supreme Court of India has played a crucial role in holding accountable those who prioritize profit over environmental protection. However, It’s just the loopholes between the legislative and executive because of which the rivers are still choked, the air is still polluted, the wildlife is still at risk. These environmental issues of the contemporary era if remain untreated would end the human race along with the death of the environment. Therefore, proper legislative enactment as well as proper implementation of the laws sand mass public awareness is foremost needed for the protection of our mother Earth.