This article has been written by Anindita Deb, a student from Symbiosis Law School, NOIDA. The article aims to exhaustively discuss the provisions under Section 377 of the Indian Penal Code, 1860 which was partially decriminalised in 2018 by the Supreme Court. It also discusses the history of Pride in India and the protests and landmark judgments that upheld the liberty of the LGBTQIA community.
This article has been published by Sneha Mahawar.
Table of Contents
“We should indeed keep calm in the face of difference, and live our lives in a state of inclusion and wonder at the diversity of humanity.”
The concept of human rights rests on the fundamental idea that all human beings are equal. In an era where revolutions for equality are ongoing all over the globe, penalising one’s sexual choices is an instance of gross injustice. Until 2018, India was also one of those counted countries where homosexuality was criminalised and people of the LGBT (Lesbians, Gays, Bisexuals, Transgenders) community were tortured and abused. Thanks to the landmark judgment delivered by the constitutional bench consisting of remarkable judges like D.Y. Chandrachud, Dipak Mishra, and Indu Malhotra, all consensual sex between adults, including homosexual relations, was decriminalised on September 7, 2018.
This article will discuss in detail the history of homosexuality in India, the provisions of Section 377 of the Indian Penal Code, 1860, and how they are violative of the fundamental rights of citizens. Further, the landmark judgments that have led to the decriminalisation of the section have also been analysed to give the readers an in-depth understanding of the timeline of the LGBT rights revolution in India.
Historical proof of homosexuality in India
Contrary to popular belief, historians and mythology experts believe that homosexuality was part of the ancient Indian culture and that the decriminalisation of Section 377 has taken India back to its cultural roots, to a time when love was accepted and celebrated in all its forms. There is a plethora of historical evidence\ regarding the existence of homosexuality in India in ancient times, ranging from Hindu Scriptures to Muslim literature, and who can forget the graphic evidence on magnificent ancient structures like the temples of Khajuraho! Let’s take you through some of the examples, shall we?
Recognition of homosexual unions in the Vedic system
In his book “Tritiya-Prakriti: People of the Third Sex,” the author Amara Das Wilhelm reports the summary of years of in-depth study of Sanskrit texts from mediaeval and ancient India, which prove that homosexuals and the ‘third gender’ were not only present in Indian society at the time but were also widely accepted.
Lesbians were referred to as “Swarinis” in the book, which quotes from the “Purushayita” Chapter of the renowned ancient Hindu literature- the Kama Sutra. These women frequently got wedded to other women and had children. Additionally, they were easily accepted by both the ‘third gender’ community and mainstream society. The book also made reference to gay men, also known as “Klibas,” who, while they might also be referred to as impotent men, mostly represented men who were impotent with women because of their ‘homosexual tendencies.’
Proof of homosexuality in the Hindu scriptures
Gender fluidity for humans and yakshas is a recognized idea in ancient India. Queerness can also be seen in ancient epics and scriptures, as well as prose, poetry, art, and architecture in the middle ages.
Proof in Ramayana
According to Valmiki’s Ramayana, as Lord Hanuman returned from Lanka after visiting Goddess Sita, he witnessed rakshasa women kissing and caressing each other. Now, there are so many people who firmly believe that Ramayana is not fiction and it is part of India’s rich culture.
Krittivasa Ramayana depicts a King born of two women
According to the text, King Dilip had two wives and died without leaving an heir. Following this, Lord Shiva appeared in the queens’ dreams and told them that if they made love to each other, they would be blessed with a child. The widowed queens obeyed, and one of them became pregnant, giving birth to King Bhagiratha. He is a well-known king who is credited with bringing the Ganga from heaven to earth.
An intriguing trans story in the Mahabharata
The story of Shikhandini, famously known as Shikandi, who was responsible for Bhishma’s death, is told in the Mahabharata. She was born as King Drupad’s daughter but raised as a man. She used the assistance of a yaksha to transform into a man later in her life in order to enter Kurukshetra and defeat Bhishma.
The story behind the birth of Lord Ayappa
One must be aware of who Lord Ayappa is after the famous Sabarimala case, but did you know how he was born? It is believed that Lord Ayappa was born out of a union between Lord Shiva and Lord Vishnu.
In the Matsya Purana, Lord Vishnu transforms into a beautiful woman named ‘Mohini.’ He intended to trick the demons into drinking all of the ‘Amrit’ (holy water). Lord Shiva was also infatuated with Mohini after seeing her, and their union resulted in the birth of Lord Ayappa.
Proof in Muslim literature
Babur, the founder of the Mughal empire, also seemed to have a sexual attraction towards the same sex. In his memoir, Baburnama, Babur expresses his feelings for a boy named Baburi in Kabul.
Certain Sufi poems contain homoerotic or same-sex references. A Sufi Saint, Shah Hussain expresses his love for a Hindu boy named Madho Lal through his literature. In the end, Shah Hussain and Madho Lal were buried together in Lahore. In several texts, their ashes represent divine love that lasted beyond their lives.
Visual and graphic proofs in Khajuraho
It’s impossible to discuss homosexuality in ancient India without mentioning one of its most constructive and visible proofs. The carvings in Madhya Pradesh’s Khajuraho temple are renowned for their observable homosexual imagery. The temple is widely assumed to be built around the 12th century.
The sculptures embedded in the Khajuraho temple appear to depict sexual fluidity between men and women. There have even been all-female orgies.
While the sculptures depict ‘accepted’ sexual relationships between male and female entities, they are best known for demonstrating the existence of intimacy between members of the same sex.
Sections 377 IPC
As has been stated, Section 377 of the Indian Penal Code contains provisions relating to unnatural offences. It was considered one of the most ‘draconian’ provisions in the Indian legal system back in the time when sexual intercourse between individuals of the same sex was also considered a criminal activity.
According to Section 377, whoever voluntarily engages in carnal intercourse against the order of nature with any man, woman, or animal shall be punished with life imprisonment or imprisonment of either description for a term not exceeding ten years, and shall also be charged with a fine. It is important to note that the term “against the order of nature” has not been defined in any source of law. Hence, deciding on the sexual choices of people was a clear violation of the fundamental rights of people belonging to the LGBTQIA+ community. Furthermore, even though same-sex relationships have been decriminalised, crimes like bestiality (sexual intercourse with animals) and child abuse are still punishable under this Section.
Nature of Section 377 IPC
Section 377 is considered a serious offence, hence, it is cognizable and non-bailable in nature. It can be tried in the court of a magistrate of first class.
Constitutional validity of Section 377 IPC
The Constitution of India guarantees its citizens fundamental rights that are an essential feature of every democracy across the globe. India being one of the fastest developing democracies, enforcement of laws in the country that restricted the sexual choices of people, which are purely personal in nature, and an indispensable part of one’s autonomy over their body and freedom of expression, was a serious infringement on the fundamental rights of Indian citizens. Penalising sexual intercourse between individuals belonging to the same sex was a prima facie infringement of the rights enshrined in Articles 14, 15, 19, and 21 of the Indian Constitution.
Section 377 not only denied equality in the eyes of law and freedom of expression to the queer community, but also subjected them to discrimination within society. Additionally, the right of a person to his or her body, enshrined under Article 21, was also clearly infringed upon. As a result, a catena of judgments have been passed regarding the constitutionality of Section 377, resulting from a plethora of petitions filed in high courts across the country. The four landmark judgments which have dealt with the constitutionality of this law have been discussed in detail later in this article.
History of Pride Movement in India
The onset of the LGBTQ struggle in India can be traced back to the early 1990s. Even after India gained its independence, the LGBTQ people were struggling for their entitlement to the same rights as heterosexual couples. The cruel impact of the law left behind by the British was gaining its roots and was subjecting the queer community to human rights violations.
If one follows the movement’s history, the first known protest for gay rights took place on August 11, 1992, 45 years post India’s independence. The AIDS Bhedbhav Virodhi Andolan (ABVA), a known organisation at the time, planned the protest in front of Delhi police headquarters by blocking its entrance to protest the arrest of men from Connaught Place’s Central Park on suspicion of homosexuality. The protest did not lead to anything.
In 1991, the ABVA also released a report titled “less than gay”, which was a citizen’s profiling of the discrimination faced by the LGBT community in India.
In 1994, a medical team arrived at Tihar Jail to investigate a greater incidence of sodomy reported from the quarters. ABVA activists wanted to give contraceptives to prisoners, but Kiran Bedi, the then-Inspector General of Prisons, refused. Bedi contended that it would amount to an implicit admission that homosexual relationships were common in Tihar, and that the availability of contraception would encourage the practice. Tihar decided to combat the ‘menace of homosexuality,’ as Bedi put it, by mandating HIV testing and segregating those who tested positive.
ABVA filed a PIL in the Delhi High Court in 1994, challenging the constitutional validity of Section 377—one of the first legal protests against the government’s repression of the LGBTQ community. The PIL gave India its first-ever gay rights advocate, Siddhartha Gautam, who was the co-founder of the ABVA. However, following Gautam’s untimely death, ABVA failed to follow through on the petition, and the case stood dismissed in 2001.
The first Pride Parade of India : an act of freedom and rebellion
The city of Kolkata hosted India’s first Gay Pride Parade in 1999. Calcutta Rainbow Pride, with only 15 participants, sent a long overdue message to the entire country, i.e., being queer and being proud. The same year, CALERI (Campaign for Lesbian Rights), a Delhi-based organisation, released a manifesto titled ‘Lesbian Emergence,’ which pursued to initiate a conversation surrounding queer women’s lives, who, CALERI claimed, were much more invisible as compared to queer men.
Police bust in Lucknow
Things came to a head on July 7, 2001. Lucknow police officers, eager to enforce Section 377, raided a park and arrested several men on suspicion of homosexuality. One of them was a healthcare worker for the Bharosa Trust, and the police immediately raided the Bharosa offices, seizing documents and arresting nine more people. A number of contraceptives, lubricants, instructional videos, and sex toys were confiscated by the police.
The Court denied bail to the nine arrested, stating that “the accused’s work is like a curse on society.” It took the Lawyers’ Collective a month to determine that Bharosa was not involved in a sex racket and to release the arrested members.
After the Lucknow incident, an NGO named Naz Foundation petitioned the Delhi High Court in 2001 to decriminalise Section 377 declaring it to be unconstitutional, and thus began the long battle of cross-litigation on Section 377 and freedom of the LGBTQ community.
Landmark judgments that lead to decriminalisation of Section 377 IPC
There have been numerous petitions and PILs filed in courts across the country for the decriminalisation of Section 377 of the IPC. However, four landmark judgments are most essential to be read whilst one is trying to understand the history of litigation around the law criminalising homosexuality.
Naz Foundation v. Government of NCT of Delhi (2009)
The case of Naz Foundation v. Government of NCT of Delhi is a landmark decision in Indian legal history; the case was heard by a bench of two Delhi High Court justices. This is the renowned decision that ruled that consensual sexual intercourse between homosexual individuals is not a crime and that criminalising it violates citizens’ fundamental rights guaranteed by the Indian Constitution. This decision overturned a long-standing law that criminalised consensual homosexual activities.
Facts of the case
This case began with the filing of a writ petition in the Delhi High Court by Naz Foundation, a Non-Governmental Organisation (NGO) that works closely with HIV/AIDS patients. They claimed that Section 377 of the IPC was unconstitutional and hence prayed that the Court decriminalise the same on grounds of being violative of human rights. Section 377’s verbatim consists of the term “unnatural offence,” which broadly disregards all types of sexuality except heterosexuality. The Naz Foundation argued in Court that this Section violates the fundamental rights guaranteed to Indian citizens under Articles 14, 15, 19, and 21 of the Indian Constitution. They also stated that as a result of this provision of the law, they were unable to carry out their responsibilities and assist people suffering from HIV/AIDS because the law makes homosexuality a punishable offence.
The Delhi High Court rejected the Naz Foundation’s plea in 2003, stating that they lacked locus standi (the capacity to bring a motion). The NGO then went to the Supreme Court and filed an appeal. The Supreme Court stated that they had the right to file a motion as a PIL (Public Interest Litigation), and then directed the High Court to scrutinise this case.
The issue involved in this case was whether Section 377 was subject to decriminalisation on the grounds that it is violative of Articles 14, 15, 19, and 21 of the Indian Constitution.
Judgement delivered by the Court
The Delhi High Court issued a ground-breaking judgement with a very liberal approach. The Court also noted that this law infringed upon the privacy of two consenting adults, which is an essential part of the right to life under Article 21. The Honourable Delhi High Court also ruled that categorising people based on sex violates another basic fundamental right, namely Article 14 of the Constitution, which provides that everyone, simply by virtue of being human, have the same human rights and equal access to them.
The Court also struck down portions of Section 377 of the IPC, but not the entire Section. The Court found that a portion of this Section violated fundamental rights enshrined in Articles 14, 15, 19, and 21 and that non-consensual non-vaginal intercourse is still illegal, and bestiality is still a crime. The Court further declared that this decision will remain in effect until Parliament amends it.
Following this landmark decision, numerous curative petitions were filed. Many organisations and social classes argued in the petitions that the right to privacy does not grant the right to commit any crime. Many of them also argued that decriminalising Section 377 of the IPC would be a disaster for the institution of marriage, swaying young minds toward homosexuality and impeding society’s growth. Hence came the case of SK Koushal v. Naz Foundation (2013), ending the short-lived freedom of homosexuals and bringing back the horror they had been struggling to end for decades.
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013)
Even though the Naz Foundation case was a historic and libertarian move by the Delhi High Court, in a society like India where people find it difficult to adjust to unforeseen changes that apparently go against their ‘culture and beliefs’, it was no surprise that the judgement received widespread criticism across the country, and this led to a petition to overturn the judgement in the case of S K Koushal v. Naz Foundation.
Facts of the case
The Naz Foundation decision was appealed to the Supreme Court, attracting a large number of interveners. The appellant, Suresh Kumar Koushal, was one such intervener. Other interveners in support of the appellant included organisations and individuals who stated an interest in preserving Indian society’s moral, cultural, and religious values. They claimed that Section 377 harmed the LGBT community, particularly homosexual men.
The appellants also contended that courts, by definition, should not undertake the task of legislating, which should be left to Parliament. The High Court was uncertain whether it was severing the law or reading it down, and there is a constitutional presumption in favour of the law as long as it is on the statute book. The question of whether a law is moral or immoral should be decided by Parliament.
Decision given by the Supreme Court
The Court determined that Section 377 does not raise the risk of arbitrary enforcement against specific groups on its face, reasoning that the law only criminalises sexual acts ‘against the order of nature,’ not acts in the ordinary course. It went on to say that the High Court ignored the fact that only a small percentage of the country’s LGBTQIAs have faced charges and prosecution under Section 377, and that “this cannot be made a sound basis” for declaring the law unconstitutional.
Concerning whether the law violates fundamental rights guaranteed by the Constitution, such as the right to privacy, dignity, and freedom of expression, the Court held that “the mere fact that the section is misused by police officers and others is not a reflection of the section’s vires.” Without conducting any additional analysis, the Court concluded that Section 377 “does not suffer from the vice of unconstitutionality.” As a result, it overturned the Delhi High Court’s decision.
National Legal Services Authority v. Union of India (2014)
Transgenders play a vital role in Indian history and culture. Still, sadly enough, people of this community face discrimination every day simply for being who they are. The life of a transgender person was very difficult in India, until the day of April 15th, 2014. On this day, the bench of Justices K. S. Radhakrishnan and A. K. Sikri delivered a landmark decision in the case of National Legal Services Authority v. Union of India, popularly referred to as the NALSA judgment. This judgment highlighted India as a country that asserts the importance of gender equality, as it declared transgender people who do not fall into the male or female categories to be in the ‘third gender’ category. It was observed that the basic rights conferred under the Indian Constitution would be equally applicable to all or any, including transgender people, and granted them the right of gender identity, which originally only included male or female, but now also includes the right to choose their sex in the third gender category. For many years, transgender people have faced torture, shame, discrimination, hatred, abuse, and violence because they were not classified as male or female. This decision finally put an end to the transgender community’s long-standing grievances.
Facts of the case
The gross injustice and human rights violations suffered by India’s transgender community prompted the filing of a petition. The laws governing marriage, adoption, inheritance, succession, taxation, and welfare were all stated to be governed by whether you were male or female. Surprisingly, this gender determination has always been done at birth. Because of the lack of legal protections for people of the third gender, they had also faced discrimination in a variety of settings. Thus, the case came before the Court after the National Legal Services Authority filed a Public Interest Litigation, which was followed by other petitioners.
Several interveners joined the petitioners. They claimed that under Indian law, only binary genders of male and female were recognised, and that the lack of legal measures to meet the needs of the represented groups violated several constitutional rights, including the right to a dignified life, equality before the law, non-discrimination, and freedom of expression. People treat them with contempt and exploit them. Hence, it was about time that the law intervened to safeguard the rights and liberties of the transgender community. Laxmi Narayan Tripathy, who confirmed his ‘Hijra’ status, also participated in pleadings before the Court on behalf of fellow transgenders and stated difficulties and challenges he faced in his own life which called for recognizing their gender as a ‘third gender.’ Tripathy contended that denying them as a third gender deprives them of their legal right to choose and exercise their sexual orientation. It violates their rights guaranteed by Articles 14 and 21 of the Constitution. The movie Laxmii released in 2020, with Akshay Kumar in the lead, was based on her life.
The defendants, on the other hand, defended by asserting that the state government had formed an ‘Expert Committee on Transgender Issues’ and that the petitioner’s insight would be sought as part of the process. Different states and Union Territories have also claimed to have taken significant steps to improve the transgender community’s status in society.
Issues to be determined
The following issues could be drawn out from the petition by the Bench:
- Whether a person born as a male with a predominantly female orientation (or vice versa) has the right to be recognised as a female according to his choice, especially if such a person decides to change his/her sex after undergoing the operational procedure.
- Is it a matter of right for transgender people, who are neither males nor females, to be identified and classified as ‘third gender’?
Judgement of the case
The Court also decided that Hijras and eunuchs should be considered ‘third genders.’ The ‘right to decide their self-identified gender’ was maintained for the transgender community, and the State is required to protect their gender identity by providing it legal recognition under ‘third gender.’ The Court also issued various orders and directions to the centre and state governments, including the establishment of separate HIV Zero-Surveillance Centres, the provision of separate public toilets and appropriate medical care in hospitals for transgender people, the development of various social welfare awareness schemes to improve the conditions of the transgender community, raising public awareness about atrocities committed against them, and restoring public trust in their community.
Navtej Singh Johar v. Union of India (2018)
After the groundbreaking judgement in the NALSA case, a bunch of eminent personalities stepped up and filed a petition before a five-judge bench of the Supreme Court to overturn the judgement delivered in S K Koushal v. Naz Foundation. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. Admittedly, it was time that India did away with an outdated law that was, in the very first place, an outrageous violation of the fundamental rights of its citizens. Hence, the case of Navtej Singh Johar v. Union of India was the holy grail that finally gave individuals of the LGBT community the basic rights and freedoms they deserved as human beings.
Facts of the case
The central issue that this case revolved around, like all other cases before it, was the constitutionality of Section 377. Navtej Singh Johar, a dancer who identified as a member of the LGBT community, filed a writ petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, the right to sexual autonomy, and the right to choose a sexual partner as part of the right to life guaranteed by Article 21 of the Indian Constitution. He also asked for a declaration that Section 377 was unconstitutional. The petitioner also claimed that Section 377 violated Article 14 of the Constitution (Right to Equality Before the Law) because it was too broad, failing to define “carnal intercourse against the order of nature.” There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. Among other things, the petitioner contended the following:
- Section 377 violated Article 15 of the Constitution since it discriminated against lesbians, gays, and others from the community for their choice relating to the sex of their partner.
- Section 377 was a blatant violation of Article 19 as it restricted people to express their sexual identity through speech or choice of a romantic partner.
- The criminal provision also violated the privacy of LGBT individuals, forcing them to live in fear of humiliation and exclusion from society.
Certain non-governmental organisations, religious bodies, and other representative bodies also filed applications to intervene in the case. The Union of India asserted that it left the question of constitutionality of Section 377 to the ‘wisdom of the Court.’ Some argued against the petitioner, claiming that the right to privacy was not unrestricted, that such acts were only but an insult and abuse to the ‘constitutional concept of dignity,’ that such acts would lead to the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be harmful to the institution of marriage and may violate Article 25 of the Constitution, which provides for freedom of conscience and propagation of religion.
Judgement delivered by the Court
While reviewing the decision in Suresh Kumar Koushal, the Supreme Court noted that it relied on a small minority’s reasoning to deny the LGBT community’s fundamental rights, and it made no distinction between consensual and non-consensual sexual practices between adults. In this regard, the Court stated that “a distinction must be made between consensual relationships of adults in private, whether heterosexual or homosexual in nature.” Furthermore, consensual adult relationships could not be classified along with sodomy, bestiality, and non-consensual relationships.
Moreover, the Court examined Section 377’s constitutionality in light of the principles enunciated in Articles 14, 15, 19, and 21. The Court relied on the NALSA decision, which granted transgender people equal legal protection, to establish yet again that sexual orientation and gender identity were an integral part of a person’s personality, and the KS Puttaswamy decision, which recognised the interrelationship between privacy and autonomy and that the right to sexual orientation was an intrinsic part of the right to privacy, to conclude that “it is imperative to widen the scope of the right to sexual privacy to protect the right to sexual orientation.” In addition, the Court cited its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India (2018) to grant that an adult’s right to ‘choose a life partner of his/her choice’ is an indispensable component of individual liberty.
Regarding the interaction of morality and constitutionality, the Court stated that a qualitative assumption of public or societal morality that discriminates against LGBT people and subjects them to prosecution solely on the basis of an intrinsic attribute runs counter to the concept of Constitutional morality and cannot form the basis of a legitimate State interest, and that any restriction on the right to privacy must adhere to the requirements of legality, the existence of a legitimate state interest, and reasonability.
The Court determined that sexual orientation was natural, innate, and unchangeable. It was held that an LGBT person’s decision to engage in intimate sexual relations with people of the same sex is an expression of their autonomy and self-determination. Furthermore, despite being a sexual minority, the LGBT community has an undeniable right to equal protection under Part III of the Constitution.
The five-judge bench unanimously declared Section 377 unconstitutional and read down Section 377 to the extent that it criminalised consensual sexual conduct between adults in private, whether of the same sex or not. The Court did, however, clarify that consent must be free, voluntary, and free of duress or coercion.
LGBT rights in India : the current status
The LGBT community rejoiced with a big sigh of relief after the 2018 judgement in the Navtej Singh Johar case, and rightly so- their over a decade long battle had finally paid off. But do they still enjoy the same rights as heterosexual couples? The law relating to LGBT rights in India till this time needs to be evolved to a great extent in order to accommodate the people of the community and give them equal protection under the law. The most basic right which is pending to date to be granted to the LGBT community is the right to marry, a PIL for which is currently ongoing in the Delhi High Court.
In order to further ensure protection and equal rights for transgender individuals, the Transgender Persons (Protection of Rights) Act was enacted in the year 2019. It aims to recognise transgender people’s identities and prohibit discrimination in areas such as education, employment, healthcare, holding or disposing of property, holding public or private office, and access to and use of public services and benefits. However, the law has faced a lot of opposition from activists since the law is bad on various grounds, such as that it criminalises begging by transgenders and forces any transgender under the age of 18 to live with their natal family. It is also objected that the Act primarily acknowledges only Hijras and transwomen, there is little to no reference or emphasis on the gendegenderqueerns men, or even intersex individuals.
The road ahead : a long way to go
The decriminalisation of Section 377 was a much much-called-for by the Indian judiciary, but it is a sad reality that more people were against this decision than in support. The LGBT community might have equal protection in the eyes of the law, but in reality, these individuals face discrimination in workplaces and educational institutions to such an extent that it has become a part of their daily lives. What’s even sadder, is that the younger generation, which is expected to be more inclusive than the past generations, has been intolerant towards them as well. Recently, a class 10th student from Delhi, Arvey Malhotra, committed suicide because he faced bullying by his batchmates. His mother, who was a teacher in the same school, has been fighting for justice for over 4 months now. This is just one of the many stories, and there are numerous other instances of forced sex conversion therapy, abuse against lesbians and gays in the family, and many other such crimes which the LGBT community is victim to.
There is also a need for an anti-discrimination law on paper which punishes those who treat LGBTQ+ individuals with prejudice. This will ensure that they are protected under Article 15 and do not have to struggle for equal opportunities in the workplace.
The right to marry has been ruled to be an essential right under Article 21 of the Indian Constitution, yet this right has not been granted to same-sex couples to this day. For the same reasons, surrogacy and adoption laws are also not inclusive of same-sex couples as the laws define a ‘couple’ referring to a man and woman in a relationship, married or otherwise, respectively. The argument that it waves the definition of marriage is ex-facie arbitrary and baseless, Indian legal system has seen a history of amendments introduced to make the laws more inclusive and foolproof. Amending the definition of marriage to include same-sex couples is surely not a very big ask.
Last but not least, we, as citizens, must practice more appropriate behaviour towards individuals of the LGBT community so that they feel more safe and have a sense of belonging within our society. Asking them their preferred pronouns and referring to them by the same is a good way to start.
The Navtej Singh Johar case and the NALSA judgement were only stepping stones towards the development and protection of the fundamental rights of the LGBT community of India, we still have a very long way to go. To treat these people like they are not normal is a crime in itself, nobody deserves to feel that way, especially not based solely on their sexual choices. India is progressing continuously in various sectors, and we are being recognised for our innovations and our technology. Why not be recognised for our inclusivity? We all studied in school that “unity in diversity” is India’s most distinguishing feature as a democracy. It’s time that we follow it in reality. Our history, our culture, our monuments, all have accepted same-sex relationships, then why can’t we people do the same? We are the youth of the country, and I say, it’s time to work on a better society, for one and for all. It is essential to ensure that our future generations do not have to fight for basic human rights, and to be treated with dignity.
Frequently Asked Questions (FAQs)
Which offence is defined in Section 377 of the Indian Penal Code, 1860?
Section 377 of the IPC defines unnatural offences against the order of nature and provides punishment for the same, which is imprisonment for life or 10 years plus fine.
When was Section 377 decriminalised?
The Supreme Court of India decriminalised Section 377 to the extent that it criminalised consensual sexual intercourse between individuals of the same-sex in the landmark judgment of Navtej Singh Johar v. Union of India in the year 2018.
Are same-sex marriages legal in India?
No, same-sex marriages are not legally recognised in India, yet. Individuals of the same sex are free to marry, however, they will not be able to avail any benefits as a married couple as these marriages are not registered.
What is bestiality and why is it still criminalised by Section 377?
Bestiality refers to sexual intercourse with animals. It is an unnatural offence against the order of nature since animals cannot communicate consent and this act stands to be punished under Section 377.
Does Section 377 cover child sexual abuse?
Section 377 of the IPC partly covers child sexual abuse. Since the Section criminalises non-consensual unnatural sexual intercourse, and consent is not taken into consideration in cases of sexual abuse of minors, a person committing the same on a child below 18 years will be punished as per the provisions of this law.
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