Adopting Demosprudential Approach for the Empowerment of Sexual Subaltern in India

I. Introduction

The society has always been bound by customs which time and again been questioned for its relevancy. The believe of the society in the existence of two gender and non-acceptance of the third gender community and other sexual orientation is because of their specific believe in the customs. Looking back at our history, it can be seen how there have been many social movements and protests against any law or bill passed by the government. These social movements have played a crucial role in bringing about a change. The determination of the ordinary people marching on their foot has helped in bringing about the desired change in the law or bill which ultimately takes the form of a social change.

A term “demosprudence” is coined by Lani Guerner and Gerald Torres to define legal practices that specifically target social movements and attempt to catalyse law. The word demos in the term demosprudence refers to who are collectively mobilized people who aim at bringing about a change and creating constituencies of accountability. The term prudence means knowledge. Demosprudence focuses on social movements by the minorities or by the ordinary people. It is an attempt to bring a legal change that instigates a social movement. Social movements are critical and make durable change possible. It focuses on how to justify the effects of democratic action to bring about social, cultural or legal change.

The objective of the paper is to see how social movements have played an important role in redefining the definition of democracy by providing the conditions required for a ‘culture of consent’. A modern model of demosprudence has been applied to research the same. It explores the complex balancing of force between the making of legislation and social movements. The primary emphasis is on legitimizing the consequences of political intervention to bring about legal, social, and cultural reform. It also reflects on the relationship between mass movements and law-making, purposeful mobilizations that aim to find lasting political, social, or economic reform. The study of this research is based on the highlights of how LGBTQ activism gained momentum in India. The changes that these activisms caused in the legal database. Also, how international movement gained national importance.

Instead of increased global recognition and acceptance of alternative sexuality, ‘sexual subalterns’ continue to be culturally fragmented in a culturally diverse country like India. The term ‘sexual subalterns’ was coined by Ratna Kapur, it refers to all the groups that can be categorized as sexual minorities in India³. The term ‘sexual subalterns’ has been used instead of the more commonly used term LGBTQ because the term LGBTQ does not fully capture the diversity that exists within sexual minorities. Against this backdrop, we aim to explore how demosprudence has helped in transforming unfair and unequal laws and societal perception.

The research methodology used in this paper is doctrinal research. Secondary source of data consisting of journals, articles, books and online sources have been relied upon for the present research. The research focuses on the description of the demosprudence and social change that marked the society.

II. Demosprudence

“Guinier defines demosprudence as “a law making or legal practice that builds on the collective wisdom of the people. It focuses on the relationship between the law making power of legal elites and the equally important, though often undervalued, power of social movements or mobilized constituencies to make, interpret, and change law.”⁴

“Gerald Torres, further explains that demosprudence is “the jurisprudence of social movements”⁵ which means that it is a call for new forms of representation that ensure that the power shifts are not just pendulum swings between two different groups of elite actors (from the business elite to the academic elite or from the conservative think tankers to the liberal ones) but change that actually bring the voices and bodies of non-elites into the discourse.”

Demosprudence creates a link between cultural and social change which differentiates it from the other forms of legally influenced social change. Torres differentiates demosprudential lawyering from cause lawyering by stating that demosprudence in context of culture stresses upon the democratization of the legal process instead of focussing on particular causes or clients. He also points out Brown v. Board of Education⁶ where cause lawyering resulted in legal change but failed to produce real social change.

III. Demosprudence vis a vis jurisprudence and legisprudence

Professor Upendra Baxi⁷ has stated about three types of prudences determining constitutional hegemony. Jurisprudence studies and determines the doctrines, principles, maxims of law and the concept of the law written. It mainly deals with the application and interpretation of law and analysing the work of lawyers and judges by means of formal ways like courtrooms. Legisprudence refers to the theory of legislation that takes it beyond the contingency of politics. It focuses on the secondary literature by explaining the role of elected representatives as an important source of law making. It further explains law by the use of tools of legal theory. Demosprudence is more like a judicial review process that aims at enhancing a constitutional democracy through social movements. The main focus is on the ongoing collective action of the ordinary citizens through social movements that can bring about a permanent change or alter the practice of democracy.

The scholars of jurisprudence explain the nature of the law by focusing upon collecting the rules made by the authorities and their interpretation by the jurists. Whereas the scholars of legisprudence emphasize on the lawmaker being a crucial actor. Constituencies refers to the group of people that act as a main body of support to the leaders involved in the governing process. The constituencies of accountability refer to those groups who have a particular vision or idea of change and are not related to any particular leader. Demosprudence studies the state of balance of power between social movements and law making and justifies how democratic action has brought in social, cultural or legal change.

IV. Relevance of demosprudence

A decade-old struggle by LGBTQ campaigners and advocates helped to overturn the legislation of the colonial period that explicitly discriminated against same-sex sexual behaviour and the identity of transgender persons. The legalisation of same-sex intercourse in India started in 2018 through the landmark judgment of Navtej Singh Johar v. Union Of India⁸. A good decision alone, however, does not lead to emancipation and acceptance into a place of equality and happiness. Despite this, the Indian community appears to have strong homophobia. Judicial wins, which merely guarantee formal equity, frequently lull progressives into a false sense of confidence and may potentially harm the movement's eventual success.

The philosophy of demosprudence contradicts the simple notion that a panacea for traditionally deprived minorities can be provided through favourable judicial rulings. It claims that those who seek sustainable progressive change must recognize that change will only result from concerted social change. Failure to properly resolve the complaints of sexual subordinates at the hands of the judiciary and government could be overcome by the philosophy of demosprudence and helped to overcome the ostracization of sexual minorities directed at fundamental inclusion and not just procedural fairness.

The ongoing collective action by ordinary people by way of social movements did help in getting rid of a colonial law paving the way for a better future. Despite this move, the laws in India remain to be hostile and prejudicial towards sexual minorities but by adopting the theory of demosprudence, it can be seen how social movements that influences the democracy. This ongoing collective effort and action by ordinary people have helped in bringing about a durable social change.

V. New outlook- the demosprudence of law and social movements

A fundamental argument of legal liberalism notes that as they convert their arguments into legislation, social movements accomplish their target. Via lawsuits and regulatory measures, social reform will be more easily accomplished. For legal reform to represent actual social change, new forms of influence must be taken into consideration. Lawmaking can be viewed from the viewpoint of popular mobilizations such as mass movements by those involved in social reform. The ability to transform lived reality into social justice is one of the core features of the legislation. The liberal approach to representative democracy relies on human liberties, is obsessed with a procedural definition of justice rather than a substantive one, and appears to misinterpret it beforehand.

The Indian LGBTQ citizens had been continuously facing social and legal difficulties. They have faced many setbacks in their struggle to have the same rights as the heterosexual couples. The colonial era law is repealed in 2018 moving ahead towards transformation. The homosexuality can be seen in mythological and historical texts in India. There are evidences that shows the homosexuality is not the new concept. Legal initiatives related to the LGBTQ population have recently moved from the right to have same-sex intimate affairs to the right to be private people. And have the right to have status granted by statute to partnerships. The distinct LGBTQ-centred reform movements that resulted in this change in the emphasis of rights from decriminalization to civil acceptance and security. India had LGBTQ advocates of its own who dared to speak publicly about this taboo. Shakuntla Devi for the first time explained the plight of homosexuals back in 1977 in her book “The World of Homosexuals”⁹. It comprises separate interviews with homosexual men and is believed to be India's first study of homosexuality. She shared her view by pointing out that racism and discrimination in sexual affairs was the prime source of human problems.

VI. Evolution of the lgbtq movement in india

The beginning of the LGBTQ rights movement can be traced back to the early 1990s . If one traces the path of the movement, the first known protest was held in August 1992 by an organisation called AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi against rounding up men on charges of homosexuality. The ABVA activists also filed the first PIL in Delhi High Court challenging the constitutionality of Section 377¹⁰. This was seen as the first legal protest and attempt to legalize homosexuality in India. The workers of ABVA have been actively involved by organising various public meetings, public demonstrations and protest action. The efforts of ABVA through its grass root work in Delhi slums and its continuous campaigns against the criminalization of sodomy in India resulted in repealing the discriminatory legislation. They also presented a report titled “Less Than Gay: A Citizens' Report on the Status of Homosexuality in India”, it is considered to be the first document that publicly demanded queer rights in India. The reason for filing the PIL was that the Tihar jail authorities had refused the distribution of condoms to the prisoners by ABVA activists.

The first ever Gay Pride Parade called Friendship Walk was held in Kolkata in 1999 sent out a long overdue message to the whole country- “being queer and being proud”. In the same year, a Delhi based organisation CALERI (Campaign for Lesbian Rights) also released a manifesto “Lesbian Emergence” to break the silence around queer women who according to them were more invisible than queer men. In response to the ongoing protests, the NGO Naz Foundation and the Lawyers collective filed another petition at the Delhi High Court for decriminalising homosexuality. The verdict was long overdue but short lived. Post this 2013 judgement by the Supreme Court, there was an upsurge in Indian LGBTQ activism. This has commonly referred to as golden period of LGBTQ activism in India. The Humsafar Trust was established by Ashok Row Kavi, a reputed journalist and one of India's most influential LGBTQ rights activists. This group has risen to be one of India's biggest voices for LGBTQ people in favour of health and human rights.

Ashok Row Kavi and the others filed a petition before the Supreme Court to decriminalize Section 377 of the Indian Penal Code, which in direct violation of Articles 14¹¹, 15¹², 19¹³, and 21¹⁴ of the Constitution of India, deprives LGBTQ citizens of equality before the law, freedom of speech, personal autonomy and the right to dignity. Ashok Row Kavi is also the editor of Bombay Dost, India's first queer-men magazine. This magazine proved to be a massive success and with the encouragement of many Hindi film industry actors and actresses, it helped to transform and change the view and attitude of people towards the LGBTQ community in India.

VII. Landmark moments shaping lgbtq movement in india

An increasing number of Indians began to recognise their “queerness” in response to the liberalization and inter country cultural exchange. Back then the people depended more on the western theory to define what it meant to be queer in India. but with increasing activism and activists sharing their experiences and stories resulted in the creation of a unique space for the sexual subalterns in India. Some of the landmark instances are listed below:

• Coming out in Public- In 1986, a journalist Ashok Kavi Row penned the first coming out story of modern India in a magazine called Savvy. It for the first time explained the meaning of the word “gay”.
• The First Gay Magazine- a newsletter started by Row in 1990 in support of issues like HIV/ AIDS, discrimination, STIs, etc went on to become India’s most popular and first gay magazine “Bombay Dost”.
• In 1996, “Fire” by Deepa Mehta was released following the forbidden sexual desires of two women. This was a landmark moment for lesbian women in India against homophobia after which they started asserting their identities.
• In 1999, CALERI (Campaign for Lesbian Women) manifesto “Lesbian Emergence” proved to be a significant shift for queer women.
• Pride walks- The very act of walking in public claiming one’s queerness was enough to get massive attention. Since the first pride walk, the march has only got bigger over the years.
• Every new decision in relation to section 377 has continuously spurred active community action which bore results in 2018 when it was decriminalised. The government still refuses to fully accept the idea of homosexuality in India but recent attempts in the form of new bills in the form of the Transgender Rights Bill, 2016 and 2019 has only made the LGBTQ activism in India more popular and strong.

The shifts in the popular perceptions and significant legal advancements through LGBTQ activism have helped in bringing about both social and legal changes in India.

VIII. Changes bought about by the lgbtq movement in india

The morality of a culture tends to vary from time to time, as does the role of the legislature on a given law. Throughout the 21st century, there have been mixed opinions and changing viewpoints on Section 377. The Indian Penal Code’s Section 377 is viewed as a statute of the colonial period. With the emancipation of cultures from colonial rulers, by the changing modern culture, the outdated and obsolete laws began to be replaced with the new legislation.

In India, a shift in the views and attitude towards the LGBTQ society could be seen first in the metropolitan cities. This was done by way of publishing various books, magazines and organizing pride parades, protests, etc. Looking at the increasing public participation, more and more activist groups and non- governmental organisations started coming forward in the march for the rights of the sexual minorities in India.

The year 2001 saw some of the landmark events in the history of LGBTQ rights activism in India. The petition filed by Naz foundation¹⁵ in 2001 against section 377 got the attention of the Indian judiciary. Naz Foundation played a major role in the movement to repeal the colonial era law seeking the legalization of homosexual relationships in India. in 2009, the Delhi High Court decriminalised the same but it was overturned by the Supreme Court of India in 2013. It was stated that matters in relation to amending or repealing section 377 should be left in the hands of the parliament instead of the judiciary.

In the case of Suresh Kumar Koushal¹⁶, returning Section 377 of the Indian Penal Code,1860 to its original form, the Supreme Court recriminalized homosexuality. It was of the view that Parliament was free to pass a bill in respect of homosexuals or that homosexuality could even be decriminalized. Section 377 will continue to operate in India until then. This move highly distressed the LGBTQ community and its supporters. The overturning of the judgement meant reinstating the colonial era law. It was a huge blow for the Indian LGBTQ community and people who had started coming out of the closet after the progressive judgement.

But this was not the end of the LGBTQ rights movement in India, in 2013, Guwahati held its first pride walk highlighting the presence of the LGBTQ community in north-east India. National Legal Services Authority v. Union of India¹⁷ in 2014 brought in a new ray of hope for the transgender community in India by recognising them as the third gender. The court recognised the difference between gender and biological components of sex. Another landmark judgement of K.S. Puttaswamy v. Union Of India¹⁸ in 2017 where it was observed that sexual orientation falls within the ambit of right to privacy. Thereon, LGBTQ rights activism has grown all over India and made its mark, as a result of which in 2018 the Supreme Court agreed to hear a petition to revisit the 2013 judgement of Naz Foundation. The matter was heard from January to July in the same year and on 6 September, 2018 the path-breaking judgement of Navtej Singh Johar v Union Of India¹⁹ was passed which decriminalised homosexuality in India and held that Section 377 of the Indian Penal Code was unconstitutional. This decision overturned the 2013 judgement of Suresh Kumar Koushal²⁰ where the court had upheld the law but retained a portion of section 377 in relation to sex with minors, non-consensual sexual acts and bestiality. LGBTQ activism has helped in changing the stance of Indian judiciary with respect to the recognition and rights of the sexual minorities in India.

IX. Role of demosprudence in the fight for acceptance of alternative sexuality in india”

“The philosophy of demosprudence by Lani Guinier and Gerald Torres has opened the way for a shift from criminalization and the formal ban of homosexuality to the establishment of a social and legal system to accept and defend the privacy of sexual subordinates. LGBT activists in India have been working for the abolition of Section 377 of the Indian Penal Code, 1860, during the last decade. This clause has been widely used as a blackmail weapon, and sexual minority extorting is a platitude.”

Homosexuality’s decriminalization does not ensure full emancipation into a place of equality and satisfaction. The courts' fundamental shortcomings leave them powerless to deliver anything other than a ‘hollow hope’-a fight won, but a war lost. Despite recent p campaigns in favour of LGBT rights, there is a large amount of discrimination prevalent among the Indian community, with about half of Indians objecting to same-sex marriages. It has compelled the judiciary to answer the issues of sexual subalterns sufficiently, along with the Indian Government’s failure to encourage tolerance for and recognition of alternative sexuality.

The concept of demosprudence focuses on the following aspects:

• Continuing concerted activity by ordinary citizens will transform the practice of government forever.
• Represents philosophical commitment to the law making force of meaningful participatory democracy
• Examines social movements that represent those who challenge the legitimacy of rules of exclusion
• Role of lawyers and other public citizens representing social movements to make law.

The objective behind the demosprudence is to understand the significance of the law in respect to the social changes. The law is usually accustomed with the conventions or the culture or in other cases it is the mechanism for the revolutionisation against the social evil. The article focuses on the perspective of society against the acceptance of third gender community and also the sexual orientation of the people.

The theory of demosprudence is based on the principle that those who demand social change who recognise that durable social change can be achieved only through sustained collective action. The judiciary and the government alone are not enough to put an end to the concerns of sexual subalterns. This theory fills up this gap and aims at achieving the objective of overcoming the concerns of the sexual subalterns by way of substantive equality and not only formal fairness. Guiner and Torres highlight the three vital components of a successful social movement-

1. Shift in the rules governing social institutions.

2. Transformation of the culture governing and controlling the meaning of social changes.

3. Influencing the interpretation of the legal changes through naturalizing such changes into doctrinal structure of law.

X. Changing cultural norms and social institutions

Relying solely on human rights approach to solve the problems of sexual subalterns does not suffice. Instead the focus should be on interactions with them in social and cultural settings. It is important to critically reflect on the meaning of gender equality, justice and personal autonomy. This theory provides that the social activists should not limit just to reduce their struggle to that for legal recognition but to make them feel more invested in the cause by explaining how their struggle is for deepening the meaning of Indian democracy. The movements should be situated on a broader social context. The broader vision should be how sexual subalterns conceptualize justice calling out to the society at large to make right the wrongs of such social stigmatization. Only when the society stops looking at the sexual subalterns as the sexual others, a durable change ensuring diversity and inclusion becomes possible.

XI. Translating cultural norms into legal change

Challenging the existing cultural and social conceptions of alternative sexuality through activism is important for the creation of an enabling environment. This should create a legal architecture for the same. In a new Supreme Court decision, where transgender persons are accepted as the third gender and entitled to the same substantive protections, the other two genders are enjoyed. LGBTQ advocates should seek equal rights for transgender people as other communities who have been traditionally denied. Second, LGBT activists must make a deliberate attempt to pursue judicial pronouncements on multiple implicit manifestations of prejudice encountered by sexual subalterns without having to assume a firm moral stand, which courts would be prepared to strike down. They should stay in touch with the local policymakers to overcome the structural and legal barriers. Concrete legal changes can only be guaranteed when the favourable social norms have been embedded into the social fabric. This ensures a socio-legal foundation to depend upon for the actualizing of their conception of justice.

The prime focus is how the activists and a mobilized community together can make a change in the perception of the content of law. LGBTQ movements is way through which sexual minorities in a majoritarian democracy create a constitutional crawl space for themselves. This is done to protect their rights and challenge the existing norms to create an alternative meaning of the constitutional narrative making a durable change possible. This approach has helped the sexual minorities to challenge as well as participate in the decision making in a democratic society.”

XII. Impact of globalisation in social reform

The globalisation is the reason that has created the interdependency among the rational being, the regional politics and nations. It is the driving force for creating the social awareness against the evil cultural bondage and the conservative approach toward the sexual orientation and third gender community. The concept of globalization through social movements have created the scope beyond the discussion as a theory or as a rationale for the role of judicial review in the defence of sexual subaltern over legal liberalism. There emerged a modern concept termed demo-prudence. The analysis of the complex balance of power between law making and social movements is Demosprudence.

Demosprudence reflects on the legitimizing consequences of political intervention to bring about changes in government, law, and culture. While democratic transparency involves citizen movements mobilized to impact a particular election, distinct legislation, or a judicial decision as a normative matter, we concentrate on the relationship between legislation and common, purposeful mobilizations that pursue meaningful social welfare, economic or political that is truly sustainable. It aims to recognize, examine, and track all social movements that enhance our political system's current democratic capacity and do so in a manner that creates meaningful social and legal reform.

The concept of demosprudence stands slightly different from that of jurisprudence. The jurisprudence investigates the degree to which specific minority interests are secured by the application of the ordinary legal and constitutional doctrine by judges, demosprudence discusses how political, social, or economic differences do not necessarily rely on judicial decisions to fix their problems. They must find a way to incorporate lawyers not as officials but as fellow supporters, rather than handing their department over to lawyers. Proponents of radical social reform, taking a term from social philosophy, must be supporters of themselves and with themselves and others. It is crucial to our research to consider the positions played by social movements in creating durable social and legal reform.

Demosprudence as a tool allows one to address two overarching questions:²¹

(1) How and why are marginalized or poor minorities empowered in a majority democracy to defend their rights?

(2) Does it have a democracy-enhancing impact to mobilize these constituencies?

By strengthening democracy, the mobilization opens up room for those traditionally disadvantaged or oppressed and encourages them to engage more actively in helping to make life-affecting decisions.

Demosprudence, then in the development of definitive interpretation within a democratic political structure, is the analysis of the relationship between social movements and law. In comparison to jurisprudence, which analyses the conduct of judges operating in institutional places such as courts or legislatures, and generates secondary literature on how the role of elected officials is an important source of legislation, demosprudence focuses on the ways in which common people’s continuing political intervention will fundamentally alter the practice of government by modifying the people who make it happen.

Jurisprudence scholars concentrate on the set of laws enforced by authorization and understood by jurists; the representative or elected representative is seen by legislative scholars as to the main player. Demosprudence theorists, on the other hand, draw attention to the “dynamic constituencies” that call for transparency through their involvement in disputable politics and other types of legal significance that often call for accountability for democracy. In the process of governance or legislative reform, constituencies apply to all players that make up the body of support for politicians and elites. We use the word ‘accountability communities’ to refer to those audiences who are not primarily dedicated to any single individual or leader, but rather to a clear goal of reform by which they assess the success of those that use state power.

The ability to incorporate the lived reality into the experiences regarding human and social freedom and justice is one of the essential roles of the law. While courts and lawyers are key players in the development of these interpretations, social classes and mobilized constituencies of non-expert participants often play a significant role in establishing authoritative evaluative structures in the forming of the discourse of law.

A central argument of legal liberals is that as they convert their arguments into legislation, social movements fulfil their objectives. Therefore, the most successful means of implementing social reform is directly through lawsuits and regulatory steps. The litigation and policy emphasis that is the priority of mainstream because activism is motivated by a commitment to legal liberalism. It postulates almost the reverse for legal reform to represent actual social change, alternate or contending forms of influence must be taken into account and active. Such transition must also, to some degree, change the society.

Legislation from the viewpoint of mass mobilizations, such as social movements and other sustained modes of controversial politics and direct action, which seek to make formal institutions, including those governing legal culture, more inclusive, is beneficial for those involved in social reform.

Through building on social networks, mutual purposes, and shared cultural structures, the strength of social movements derives from their capacity to mount joint challenges. Despite their numerically or politically poor role in a majoritarian democracy, social movements can broaden the capacity of historically excluded or oppressed representatives of a political party to narrate constitutional sense. The recursive relationship between social movements and law, in particular, will extend the field in which the institutional institutions of society work more efficiently as venues that enhance democracy.

XIII. Transformative constitutionalism

While technically a neutral statute criminalizing “unnatural” actions and not identities, Section 377 attacks the queer community in its practice, forming a class of presumptive offenders and perpetrating racist attitudes against LGBTI citizens. Since the sexual acts identified and criminalized under Section 377 are most closely linked to non-normative gender identities and sexual orientation, the legislation perpetuates stigma, racism, bigotry, and abuse against LGBTQ persons, not because of what they do, but on who they are or what they are considered to be.

To refuse the right to sexual identity to LGBTI people is to strip them of their right to full citizenship under the Constitution. The judgment upholds constitutional morality over social morality and standards to ensure that an oppressive colonial rule does not force the lives of LGBTI people into anonymity, which as Justice Chandrachud points out is anathema to the constitutional guarantee of equality, freedom, and fraternity.

The rights of LGBTI people to liberty, independence, and independence are upheld, denying majoritarian notions of morality. Chief Justice Misra observed that the purpose of having a constitution is to transform society and to accept the “ideals of justice, liberty, equality, and fraternity.”²² The Indian Constitution was developed as an instrument for the achievement of constitutional morality, the discouragement of prevailing social morality, and the integration of different classes of people and diverse ways of life. As correctly noted in the decision, this concept of a transformative Constitution complements the idea of a progressive realization of citizenship for the LGBTI community. The judgment argues that the object of creating a Constitution is to turn society for the better, noting that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a modern, egalitarian democracy into a medieval, hierarchical society.

XIV. Comparison with other countries

Focusing on the policies of the United States and Europe:

As Harvey Milk joined the Board of Supervisors of San Francisco in 1977, this campaign gathered speed. In the United States, he was the first openly gay man to be elected. He is responsible for proposing laws to defend homosexuals and lesbians in the workplace and the principle that their sexual identity alone should not be shot. Just five years later, the state of Wisconsin boldly outlawed sexual identity violence against people of the LGBTQ culture.

There was the case of Bowers v. Hardwick²³ in 1986, with the substantive issue, "Does the Constitution give homosexuals a fundamental right to engage in consensual sodomy, thus discrediting the laws of many states that make such behaviour illegal?" In other words, despite the laws being in place, could two consensual adults execute homosexual acts in the privacy of their home?

The 1996 Defense of Marriage Act was considered unconstitutional and overturned in 2013. President Barack Obama signed an executive order protecting federal staff from discrimination based on gender identity. The Supreme Court ruled, monumentally, that fundamental marriage rights should be extended in 2015 to same-sex married couples. This ruling made the United States the world’s 21st country to legalize the marriage of the same sex.

Many of us who come under this phrase “LGBTQ” is influenced by government rules and regulations from all factions. Sadly, some policy harms them more than supports, particularly with today's inclusive state of culture. At the federal level, the United States has enacted a reasonable amount of laws about the LGBTQ culture over the last half-century. Most importantly, as described above in the history section of this community, the 1996 Protection of Marriage Act was passed by former President Bill Clinton, and was damaging to the LGBTQ community as they made great strides in securing support and freedoms for themselves in the 1970s and even the 1980s.

During the 2000s, little laws related to the LGBTQ community was passed as there was a great deal of attention from both sides of politics on the military aspect in terms of defense and funds due to the terrorist attack on the United States and the War on Terror. "Despite the focus on military issues, a law was passed before this decade and reversed in the following decade to influence LGBTQ people serving in the military: “Don’t Ask-Don’t Tell”.

This policy was signed into force on 1 October 1993 and technically abolished a ban on homosexual service imposed after World War II, although a formal ban remained in place. Homosexuals served in the military were not permitted to speak about their sexual identity or participate in sexual conduct under the provisions of the statute, and 20 commanding officers were not permitted to ask members of the service about their sexual orientation. Despite the introduction of this program, many LGBTQ+ citizens were ridiculed in their positions and many were even discharged depending on their sexual identity.

Based on their sexual identity, many eligible soldiers and high-ranking officers from many branches of the military were discharged and the Obama administration felt it was necessary to revoke this decision. On November 30, 2010, the Pentagon issued its “Don’t Ask, Don’t Tell” study paper, which concluded that repealing the strategy would pose little danger to the effectiveness of the military. The Independent U.S. following a continued filibuster of the National Security Authorization Act Sen. Joe Lieberman and Sen. Susan Collins of the Republic of Maine presented the U.S. A stand-alone Senate bill that would repeal “Don’t Ask, Don’t Tell”. In the House of Representatives, where it passed 250-174 on December 15, a similar bill was adopted.

XV. The way forward

After looking the evolution of LGBTQ rights activism in India and seeing how it has led to various favourable judicial pronouncements, it can be clearly seen that this social rights movement has been able to bring about a social and legal change in India. it has brought about a major change through the decriminalisation of section 377 which is important form the future perspective of this movement. Favourable judicial pronouncements do not completely ensure the end of discrimination and various other issues in relation to the sexual minorities in India. there are still many areas and issues which have to be dealt with in relation to sexual minorities in India. Demosprudence has brought about some major changes in the perception of the people as well as in the constitution. A lot of civil rights in relation to right to adoption, right to marriage, freedom from sexual assault, etc need to be catered to. The LGBTQ activism should be openly supported and not condemned as these social movements have long lasting effects both on the people and law.

Looking at the harassment and inequality faced by LGBTQ community in India, there is a wide scope of improvement and change in the existing perception and laws. LGBTQ activism aims at ensuring that the future becomes more inclusive and gender neutral by way of new legislations. These movements aim to eliminate prejudice, stereotypes of homophobia and transphobia. Adopting a demosprudential approach can help in achieving the same.

XVI. Conclusion

“The active participation of the masses has helped in changing the prevailing meanings of legality and justice. Their active participation and efforts helps in changing the wind of democracy truly into government by, of and for people. Demosprudence, then in the development of definitive interpretation within a democratic political structure, is the analysis of the relationship between social movements and law. It has helped to change and reshape common notions of alternative sexuality, personal liberation and fundamental equality in the context of the Indian LGBT movement. Not only must the desires of sexual subordinates be balanced by the limits of the justice proceedings due to the intrinsic limits of court-centred tactics, but they must also consciously partake in broader social conversations to protect their access to firmer legal moorings.”

To be sure, this technique will take immense grit and perseverance, and the willingness of actors to make difficult decisions and behave dynamically will ultimately decide its effectiveness. However, it can signal a new age of activist citizenship and restructure the essence of Indian democracy fundamentally.

“LGBTQQIAAP2S” is the present abbreviation for the sexual subalterns fighting for their right and identification in the society. The material human life relies on economic support that one receives by inheritance, self-employment, support from outside the family, and kin network. Inequality resulting from sexual identity and delinking age with society at large involves support structures at many levels of existence. The external mechanism of support could come from the society or the state.

A “support” is characterized as any entity or behaviour that is defined as appropriate or helpful by the recipient or the giver in sustaining a life-style. A “support system” is a collection of aids of a similar kind. Our analysis indicates that 56 percent of respondents said they had support networks, while 44 percent said there was a lack of family support. It was found that to expand linage and leave an identity as a legacy, there is an impulse among homosexuals for parenthood.

However, sadly, domestic abuse against victims of same-sex partners do not get the support they deserve. This is attributable to the lack of statutory approval. It was found that physical, mental, and psychological violence was suffered by their spouses that left them with feelings of loneliness, anxiety, and guilt. Another surprising discovery was that homosexuals were also blackmailing their partners. All of them have been noticed by bullying their partners by 'outing' to their mates and colleagues. Striking down Section 377 of Indian Penal Code and giving recognition to the third gender community or sexual subalterns is not the absolute transformation. There is need of specific laws in regard to their marriage and other activities giving them equality and equal opportunity within the constitutional framework.

XVII. References

1) Scholarly Articles/ Journals

a) Ratna Kapur, Out of the Colonial Closet, but Still Thinking 'Inside the Box': Regulating 'perversion' and the Role of Tolerance in Deradicalising the Rights Claims of Sexual Subalterns, 2(3) NUJS L. REV. 381, 384-385 (2009) [hereinafter “Ratna Kapur”].

b) Lani Guinier, Foreword:Demosprudence Through Dissent, 22 HARV. L. REV. 4 (2008) [hereinafter Guinier, Dissent].

c) Gerald Torres, Legal Change,55 CLEV. ST. L. REV. 135 (2007).

d) Lani Guinier, Beyond Legislatures: Social Movements, Social Change, and the Possibilities of Demosprudence- Courtingthe People:Demosprudence and the Law/PoliticsDivide, 89 B.U. L. REV. 539 (2009) [hereinafter Guinier, Courting].Brian Ray, Demosprudence in Comparative Perspective, 47 Stanford Journal of International Law 111 (2011).

e) Professor Upendra Baxi, Demosprudence and Socially Responsible/Response-able Criticism: The NJAC Decision and Beyond, (Accessed at a017/01/2016-9-3-4-Professor-Upendra-Baxi-Demosprudence-and-Socially-ResponsibleResponse-Able-Criticism_-The-NJAC-Decision-and-Beyond.pdf on June 2,2021).

2) Case Laws

a) Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

b) Navtej Singh Johar v. UOI, AIR 2018 SC 4321.

c) Naz Foundation vs Government Of Nct Of Delhi And Ors., (2009) SCC OnLine Del 1762.

d) Suresh Kumar Koushal and another v. NAZ Foundation & Ors., (2014) 1 SCC. 1.National Legal Services Authority v. Union of India, AIR 2014 SC 1863.

e) Justice K.S. Puttuswamy & Anr. V. Union of India & Ors., (2017) 10 SCC 1.

f) Bowers v. Hardwick 478 U.S. 186 (1985).

3) Books

a) Shakuntala Devi, The World of Homosexuals (Vikas Pub. House 1977).

4) LEGISLATIONS

a) Indian Penal Code, 1860 (Section 377).

b) Constitution of India. (Articles 14, 15, 19 and 21).

*****