Rights of LGBTQ+ and Article 377
Author – Shruti Sharma, a student at Bhartyee Vidyapeeth institute of management and research.
Abstract
A portion of the population that had endured persecution at the hands of discriminatory colonial laws had long since forgotten the fundamental principles of liberty and equality enshrined in the Constitution. On September 6, 2018, the Hon. Supreme Court of India announced a long-overdue and much-needed change. This article follows several cases pertaining to section 377 to identify the legal backdrop that ultimately resulted in the Navtej Johar ruling. It has also been briefly highlighted how the judgments have an affect and how important it is to embrace LGBTQ people for who they are. Years of LGBTQ struggle by numerous NGOs and organizations, including the ABVA, Naz Foundation, and Lawyers Collective, culminated in the ultimate ruling. In India, September 6, 2018, will always be remembered as a day of pride. The basis for an inclusive society has been established by the indelible and iconic wordings of the Section 377 ruling. Returning to the original idea of this paper, I have attempted to preserve the spirit of the opposition to section 377 and its effects on the community and society.
How article 377 provides various rights to LGBTQ+ community: –
Four years have passed since the Indian Supreme Court struck down the legislation that made same-sex relationships illegal on September 6, 2022. On this momentous day, a five-judge panel struck down a portion of Section 377 of the Indian Penal Code (IPC), removing all legal barriers to consensual sexual relations for members of the LGBT community.
It wasn’t always the case, though. Thirty years ago, India the same India that now permits people to date people of the same sex persecuted openly gay individuals and threatened to fire anyone who came out as gay or queer.
So how did the country made this transition?
In India the concept of homosexuality has always been considered as taboo. The LGBTQ community is still fighting for its fundamental rights to equality and acceptance in the twenty-first century. Although today’s Indian youngsters accept homosexuality and queer identities, acceptance inside the confines of families and homes continues to be a challenge for the community’s members.
Section 377 of the Indian Penal Code pertains to “unnatural offences” and stipulates that any person who engages in voluntary carnal relations against the natural order with any human, woman, or animal faces a life sentence in prison. In 2018, the Supreme Court decriminalized it and ruled that it is unconstitutional because it criminalizes sexual actions between consenting adults, regardless of their gender identity.
In the Delhi High Court, the Naz Foundation (India) Trust contested the validity of Section 377 of the Indian Penal Code on the grounds of Articles 14, 15, 19, and 21. The Foundation argued that Section 377 is out of date and represents a prehistoric view of sex as a tool for propagation. It also said that sex has no place in contemporary society. Moreover, the police had weaponized the provision, hindering attempts to stop the HIV/AIDS epidemic from spreading. The Foundation referenced a case from 2001 in Lucknow in which HIV prevention workers were accused of plotting a crime and as a result were arrested while giving condoms to gay men. Additionally, the Naz Foundation claimed that the clause was being abused to penalize consenting sexual practices that do not include the vagina.
Cases which lead to the transition
In 2009, the Delhi High Court decided that punishing sexual activity between two consenting adults with Section 377 would be against Article 21 of the Constitution, which protects the right to privacy and personal liberty. The Court determined that stigmatizing and discriminating against gays is against Article 14 of the Constitution’s equal protection principle. Thus, human dignity—which is fundamental to the Indian Constitution—was infringed by Section 377.
In the Supreme Court, a number of groups and individuals contested the Delhi High Court’s decision. They maintained that decriminalizing homosexuality would be harmful to the institution of marriage and would encourage young people to engage in gay activities. They also claimed that the right to privacy did not include the freedom to commit any crimes.
the 2013 case of Suresh Koushal and decided that Parliament, not the courts, should have the authority to decide whether to decriminalise homosexuality. Additionally, it was decided that Section 377 criminalizes specific behaviors rather than members of a specific group. It also made reference to the extremely small number of LGBTq+ individuals and the fact that only a small portion of them had faced prosecution under Section 377.
Numerous petitions seeking remedies were submitted, contesting the ruling of the Supreme Court. Five LGBTQ people, including well-known Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath, and media personality Sunil Mehra, filed curative petitions against Suresh Koushal while they were still pending filed a new writ suit to repeal Section 377 IPC, which criminalizes consensual sex between people of the same sex.
The Supreme Court of India struck down Section 377 in Navtej Singh Johar v. Union of India on September 6, 2018, making it one of the most significant days in the LGBTQ community’s history. The court decided that consenting gay conduct between two persons will no longer be considered crimes.
Five individuals filed a writ petition challenging Section 377’s constitutionality on April 27, 2016, arguing that the issues raised in the current petition were different from those in the 2013 Koushal v. NAZ case, in which the Supreme Court upheld Section 377’s constitutional validity. This was the first instance when all five petitioners claimed that the law had directly violated their fundamental rights and that as a result, they had all been personally harmed by it.
On June 29, 2016, the petition was presented to Justices S.A. Bobde and A.K. Bhushan. The case was scheduled for hearing by the Chief Justice’s bench on January 8, 2018 which issued an order designating the constitution bench to consider the aforementioned case.
Chief Justice Dipak Misra’s five-judge panel delivered a unanimous decision on September 6, 2018, striking down Section 377 of the Indian Penal Code. The Court noted that two consenting adults’ right to equality was violated when sexual acts between them were made illegal. Justice Dipak Misra asserts that the freedom to choose one’s life mate belongs to every individual who has reached adulthood and is capable of independent thought. Within the parameters of Article 21, a person has the right to union, which includes companionship in all its forms—physical, mental, sexual, and emotional—in addition to marriage.
In the recent times The first state to outlaw “conversion therapy” is expected to be Tamil Nadu. The Madras High Court recently ordered the Union and the State Government to take action to forbid attempts by medical experts and physical therapists to “cure” or alter the sexual orientation of members of the LGBTQIA+ community.
In India, Same-Sex Marriage
Even though LGBT rights have improved in India in recent years, Indian LGBT persons continue to strive for their rights to be recognized, nearly three years after the 2018 ruling was passed. Even while the nation interpreted Article 15 of the Constitution to forbid discrimination against homosexuals, many other legal provisions—including same-sex marriage—have not been implemented. The Indian Constitution does not even acknowledge the marriage of same-sex married couples who cohabit; hence, they are denied rights.
Regarding same-sex marriage, there is a lot of social, political, and religious support as well as opposition. Certain jurisdictions allow same-sex couples to marry legally through rules, whereas other jurisdictions have laws that penalize homosexual partnerships. In India, couples are only granted restricted rights and their weddings are not legally recognized.
An individual’s sexual orientation is a significant aspect of who they are, and nobody should be subjected to violence or discrimination because of their sexual preferences. In India, homosexuality is still frowned upon, particularly in rural areas where a large portion of the population is homophobic and views it as a crime. Following threats from friends and relatives in their community, two women who got married in 2011 were given legal recognition by the Haryana Court.
The Uttarakhand High Court acknowledged on June 12, 2020, that although the idea of same-sex relationships is not recognized under the law, cohabiting couples who are in a live-in relationship are protected by it. A lesbian couple who were living together after getting married in July 2018 filed a petition in Kerala in January 2020. They felt discriminated against since, in contrast to other couples, their legal rights were not acknowledged. They also said that society was not accepting of them.
Conclusion
It’s critical to keep in mind that the Section was not completely invalidated by the SC verdict. Crimes pertaining to minors, non-consensual sex, and bestiality are still criminal.
According to the ruling, sexual minorities will have complete access to all guaranteed fundamental rights. They don’t have to be afraid of the law to live a dignified life.
As previously said, in addition to the legal problems (which are now resolved), a social shift is required. Sexual diversity must be accepted into society, and families in particular must be more accepting of LGBTQ individuals.
It is time, first and foremost, that we give up viewing homosexuality as a “crime” or a “mental illness.” Apart from blatant discrimination, there is no reason at all why two heterosexual people shouldn’t be able to get married in a civil ceremony and receive the same protections and entitlements as married heterosexual couples. For the LGBTQ population in India, the removal of Section 377 and the ensuing decriminalization of homosexuality represent a significant milestone. Not only does it make life much simpler for sexual minorities—though social acceptability still has a long way to go—but it also moves India one step closer to establishing equality for all human classes. However, the fact that everyone is treated equally under the law is a success in and of itself.
Don’t we live in a time and culture that values a person’s freedom to select their own life partner? So why is there such a constant struggle between two men or women who want to be together? When two people, regardless of gender, demonstrate their love and commitment via marriage, how does that undermine the principles of matrimony?
References-
1. https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/#:~:text=Section%20377%20of%20the%20IPC,survived%20into%20the%2021st%20century.
2. https://blog.finology.in/criminal-law/section-377-and-lgbtq-rights
3. https://articles.manupatra.com/article-details/The-Struggle-Against-Section-377-and-its-Impact
