Section 377
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This article is written by Shambhavi Mishra, from Lloyd Law College, Greater Noida.

Abstract

There was a time when homosexuality was considered a criminal activity. Then, in 2018 in a historic judgement, Section 377 of the Indian Penal Code was decriminalized, which made private homosexual relations legal. Back in 2018, the homosexual community thought this change would bring a great effect in their lives and in their battle to be a part of society. Recently, there has been a hike in suicide cases of homosexuals, and this draws our attention towards the fact that decriminalization of Section 377 of the IPC has not brought the fulfilling effect that it was expected to bring. In this paper, I discuss the changes that have come in the lives of the homosexuals of the nation since the judgement and their present needs.

Introduction

On 10th June 2018, two women named Asha Thakor and Bhavna Thakor, aged 30 and 28 respectively, jumped to their death in the Sabarmati river.[1] They left two suicide notes near Ellis bridge. A message was scribbled with red lipstick near the Sabarmati river that read, “We have left this world to live with each other. The world did not allow us to stay together. We did not have any men with us.”.

Another message, scribbled in the same fashion, was found on a disposable plate nearby: “This world did not allow us to stay together. When will we meet again? When will we meet, perhaps in the next birth we will meet again”.[2] They ended their lives because their same-sex relationship was contradicted by the world. They also ended the life of an innocent three-year-old girl, who, according to sources, was the child of one of them. What could have led these women to take such a drastic step like that? Why was their relationship opposed by society? We need to delve into the deeper dimensions of the lives of homosexuals in India to answer these concerns. 

Section 377[3] refers to ‘unnatural offenses’ and provides that whoever voluntarily has carnal[4] intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. The 5-Judge Constitution Bench, comprising eminent judges like CJ Dipak Mishra, Dr D.Y. Chandrachud etc in their landmark judgment, held Section 377 of IPC unconstitutional insofar as it criminalized sex between consenting adults of the same gender. In the light of the Sepoy Mutiny of 1857, Section 377, the law to prosecute those who challenge the ‘order of nature’ was rushed through in 1860.

In 2001, some LGBT rights NGOs filed a petition in the Delhi High Court questioning the constitutionality of Section 377 of the Constitution under Sections 14, 15, and 19. In July 2006, in support of the Delhi High Court petition, a national AIDS control body submitted an affidavit stating that “Section 377 acted as an impediment to HIV prevention efforts”. In 2009, a landmark judgment was passed by the Delhi High Court holding Section 377 to be in violation of Articles 21, 14 and 15 of the Constitution, insofar as it criminalized adult consensual sexual acts in private. Few realized that this was not a challenge to Indian culture and that the rule of the Victorian era was simply a legacy of European prejudices against homosexuality.

On 11 December 2013, the Delhi HC verdict that decriminalized consensual sex between adult homosexual men was reversed by the Supreme Court in a verdict made by Justice G.S. Singhvi, who retired on the same day. But the SC also told the government that, through legislation, it was free to repeal the statute.[5]

This article deals with the condition of the homosexual community in India and how it was influenced before and after the decriminalization of Section 377 of the Indian Penal Code. It talks about the current situation in India for homosexual individuals and same-sex couples today. It also talks about whether decriminalization of Section 377 met their needs, and has their life changed. The burning question still remains whether the definition of homosexuality has been embraced by Indian society.

Suicide increment cases among the homosexual community

The increase in cases relating to suicides of homosexuals has created an alarming situation. We shall take an example of two such cases that occurred past the judgement to reveal the real condition of homosexuals in India today. In July 2019 a 19-year-old boy named Avinshu Patel killed himself in Chennai because he was tired of people making fun of him and not acknowledging his true identity. Avinshu Patel was a Mumbai resident who worked in a beauty salon. He was given advanced training to be a nail artist because he was good at his job. He wrote a Facebook post on his wall before taking his own life that read, “They all know that I am a boy but the way I walk, think and talk is like a girl. People in India do not like that, read the Facebook post. He added further, “Please don’t hold my family to blame. Just help them. We are impoverished. I’m in love with my mother, dad, and sister. I thank them for always supporting me. It is not my fault that I was born gay”.[6]

A 21-year-old college student named Anjana Harish committed suicide on May 12, 2020, according to the Goa police. She posted a video on her Facebook before doing so, remembering the terrible circumstances she had to face since December 2019 after she announced that she is bisexual to her family. She was reportedly coerced by her family into conversion therapy. Anjana said she was forcefully taken to two ‘de-addiction centers’ by her family, without her permission. She was slapped, she said in the video, as she tried to explain that there was nothing wrong with her. Then she was placed on heavy medicine at these clinics, she said.[7]

These are just two cases but there are numerous other such cases and a whole lot of cases that remain unreported. Avinshu’s case speaks to us about how it is still a challenge for someone like him to be a part of society. Anjana’s case tells us about the cruel outcomes that one has to face after coming out. What other cases tell us is that even today, people from the LGBT community find it easier to end their lives instead of fighting for their identity. Studies indicate that youths of the sexual minority were more than three times more likely than heterosexual peers to attempt suicide. In JAMA Paediatrics, researchers pooled data from 35 studies and found that young transgender people were at greatest risk, almost six times as likely as heterosexual peers to attempt suicide. LGBTQ advocates argue that community members still face prejudice despite the Supreme Court decriminalizing homosexuality in 2018.

Outcomes of decriminalizing Section 377: An analysis

Article 14 of the Constitution of India guarantees its people equality before the law. It says that the State shall not deny equality before the law or equal protection of the laws of any individual within the territory of India. The prohibition on discrimination on grounds of faith, colour, caste, sex, or place of birth. The burning question is, whether the nation’s homosexuals believe that they are treated with fairness and are subjected to discrimination or not. We will need a closer insight into the lives of the LGBT community to address these questions. The decriminalization of Section 377 gave these individuals a ray of hope, which was reflected by the massive way in which they celebrated the judgment, but they didn’t know that things were not going to improve that easily back then.

The LGBT group was abused in many ways prior to the verdict. As a consequence of Section 377, numerous cases have illustrated the vulnerability of the LGBTQ+ Indians. On the basis of Section 377, homosexual couples who met in parks or public places were detained and blackmailed. Homosexual men have been raped and exploited. They were seen in the light of the law as criminals. Section 377 of the IPC called for a complete prohibition on sexual acts engaged in by the LGBTQ community. This puts them at a greater risk of acquiring and transmitting HIV infection and other STDs, owing to a high degree of risky conduct and inadequate decision-making ability to defend themselves from infection. Not only that, for fear of being ‘exposed’, the section also made it very difficult for the party to seek medical assistance. They were subjected to bullying from both private and public institutions and harassment.[8]

Since the verdict, Indians have embraced homosexuality as a sexual orientation more than ever, but there are still a lot of loopholes in society. Homosexuals are also in denial about exposing themselves to places like schools, homes, and workplaces. For most Indian communities, this is taboo. Most Indian families are only cool with homosexuality as a term until one member of their own family chooses to be one. Homosexual struggles start at home. The first reaction they get from their families is regarding bringing them back to normal sexual preferences. Homosexuals have a doubt that their own families will not support them. There are enough examples to show that they have had to face rejection even when some of them have gathered up the courage to expose themselves. When they do so, they have been coerced to conceal their identities or to appear to be heterosexual. They are compelled against their will to get married.

Most of them hear phrases such as “It’s just a stage” or “There’s no such thing as this, it’s against nature’s will.” Stepping outside isn’t that convenient either. The constant fear of concealing identity continues even at school or at their workplace. Sometimes colleagues and peers make fun of them, or the worst bully and blackmail them. The fear of not being able to find love/partner in life is what continuously scares them.

There have been some instances that have shown that homosexuals are said to have some kind of mental disorder when they reveal themselves and are required to go into surgery and forced transformations. Everywhere, they face abuse. Even when it comes to getting a job, they face a struggle. And if they are attacked or raped, they have to hold their mouths shut. Homosexuals are also prone to HIV virus and other STDs. Not all gay men engage in anal sex. However, anal sex is one of the main reasons that gay men have higher rates of HIV. Men who practice insertive, unprotected anal intercourse are more likely to transmit HIV to their partners. When men do both, the combination of behaviours optimizes the spread of HIV in a way not seen in heterosexual couples.[9] They lack sufficient healthcare facilities that can cater to their unique needs. All of the atrocities and injustices faced by the LGBT community lead them to take drastic action, such as taking their own lives. What decriminalizing section 377 has not done is establish the LGTB community’s rights.

Through the above analysis, it is very clear that even after two years of decriminalization of Section 377, things are not going well for the nation’s homosexuals. They still have a lot of discrimination and violence to go through. The decision may have permitted them to have sex lawfully with their partner, but in society, it has failed to give them dignity. The state, irrespective of its political, economic, and cultural arrangements, has a legal duty to promote and protect the human rights of its people. They must fight for their rights every day. The bare minimum needs that a heterosexual couple can get, they don’t get. They have to face people’s opinions in public places.

The LGBT community finds itself helpless when it comes to reporting rapes and other assaults because there is no such law that would help them. It is high time for India to develop gender-neutral rape-laws. The government must realise how important it is for citizens to spread awareness. There’s a need for the Indian curriculum to include sex education. It is necessary to establish proper healthcare services and healthcare centers that would cater to the homosexual community’s special needs.

Through the above analysis it is also evident that even after decriminalizing Section 377 of the IPC, the homosexuals of the nation are not benefited in the way they were expected to be. All that they can do presently is to have private consensual sex.

When it comes to equality, the LGBTQ community in India lacks it. They are not getting the basic rights that a heterosexual would get. They still can’t get married or adopt children. What India calls for today is additional laws that would protect the homosexual community or at least create space for them in the existing provisions. It is time that we accept reality and, according to it, amend ourselves. Homosexual individuals are just as human as heterosexual individuals and we must begin to accept them as they are.  

Conclusion

This is the 21st century where man has evolved to an extent where man is capable enough to choose their own partners and select their own sexual preferences but due to certain stereotypes, people in India are not yet ready to accept the fact that two people belonging to the same gender can fall in love and spend their lives together. Even after two years of decriminalizing section 377 of the IPC, homosexuals are still fighting to establish a place in Indian society. When section 377 of the IPC was decriminalized, people belonging to the LGBTQ community thought that this would be a big step in the upliftment of their community but gradually they realized they have a long way to go.

Allowing them to have private consensual sex has not granted them any other rights that a heterosexual individual would get. They still need to fight battles every day. The increment in the suicide cases of homosexuals is creating an alarming situation that screams to us that this is the time to pay attention to the needs of the LGBT community. Each life that is lost is a reminder for us that discrimination exists in society. The biggest tribute to the departed would be when they will see others like them living the life they wished to live, with dignity and with the partner of their choice. The nation will uplift only when each section of the nation uplifts.

References

[1]  Gujarat lesbian couple commits suicide with child, leaves behind haunting notes, India Today, Updated on June 12, 2018 14:30 IST, https://www.indiatoday.in/india/story/gujarat-lesbian-couple-commits-suicide-with-child-leaves-behind-haunting-notes-1257218-06-11.

[2] Gujarat lesbian couple jumps to death in Sabarmati river with baby, thetimesofIndia, Jun 12, 2018, 04:50 IST, 

https://timesofindia.indiatimes.com/city/ahmedabad/two-women-in-love-end-lives-along-with-the-daughter-of-one/articleshow/64548839.cms.

[3]  Section 377 of the Indian Penal code. 

Section 377: Here is everything you need to know, The Economic Times, Updated on Sep 07, 2018, 10:35 AM IST, ttp://www.ecoti.in/EpiTSY.

[4] Relating to physical feelings and needs of body.

[5] Devika Sharma, Final Judgment| Gender Identity and self-expression basic to human dignity; Section 377 unconstitutional insofar it penalises consensual sexual acts between adults in private: SC, Sept 6 2018,

https://www.scconline.com/blog/post/2018/09/06/gender-identity-and-self-expression-basic-to-human-dignity-article-377-unconstitutional-in-so-far-it-penalises-consensual-sexual-acts-between-adults-in-private-sc/.

[6] Not my fault I was born gay: 19-year-old commits suicide over homophobia, Updated on July 9, 2019 09:55 IST, https://www.indiatoday.in/india/story/gay-man-suicide-homophobia-lgbt-helplines-1565041-2019-07-09.

[7] Richen Norbu Wangchuk, Anjana Harish’s Suicide Shows Why India Must End Practice of ‘Conversion Therapy’, May 27th,2020, https://www.thebetterindia.com/227996/lgbtqia-mental-health-conversion-therapy-ban-anjana-harish-kerala-iacp-india-nor41/.

[8] Michael Carter, Men who have sex with men in India have high HIV prevalence and multiple risk factors for HIV, 26 February 2004, ttps://www.aidsmap.com/news/feb-2004/men-who-have-sex-men-india-have-high-hiv-prevalence-and-multiple-risk-factors-hiv.

[9] Roger Pebody, Anal sex and the risk of HIV transmission, A research Briefing, July 2019, https://www.aidsmap.com/about-hiv/anal-sex-and-risk-hiv-transmission.


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