Homophobia in context with Indian Laws

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By Dimple Mankad from A. D Bohra Law College

It is extremely hard to believe that people around us get tortured because of who they love or like or who they are. They are the LGBTQI OR LGBTQI+.

LGBTQI is basically an acronym for Lesbian, Gay, Bisexual and Transgender Queer & Intersex.

LGBTQI people are entitled to the enjoyment of all the rights outlined in international, regional and domestic human rights law. Yet, due to strongly held cultural and social norms surrounding gender expression and sexuality, LGBTQI people are often excluded. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) recognizes this, stating that “social and legal discrimination on the basis of sexual orientation, gender identity and expression, and intersex, is pervasive”

LGBTQI are being given many rights around the world. In many countries they have been given most rights given, yet there are some countries where they still have no rights. In India, after a long battle, Section 377 of the IPC was removed. The amendments are being made in laws so that they could get their right to live equally and respectfully.

In India, Section 377 of Indian penal code deals with the unnatural offences. In this section, before any amendment it contained that having intercourse with the same sex was to be considered as an unnatural offence. But after the amendment that was made on 6th September 2018, the Supreme Court removed from Section 377 of the IPC by legalizing the very old colonial law which criminalized consensual gay sex. And hence legalized consensual gay sex and was not to be considered as unnatural offence.

History of LGBTQ in India

In the late 19th century the term homosexuality was used as morbid sexual passion between members of same sex. And this was considered unnatural however not to forget that in India it was depicted mainly through images on temple walls, it is also described in ancient books and there were many sacred narratives. In India the concept of modern societal homophobia was introduced by the enactment of Section 377 by the British. It criminalized anal sex and oral sex under Section 377 of the Indian Penal Code.

After independence there were cases filed and few non-governmental organizations started to protest against the criminalization of consensual gay sex. As the section 377 stated unnatural offences- Whoever voluntarily has carnal 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 ten years, and shall also be liable to fine.

This used to include the explanation point in which it was stated that the consensual gay sex comes under the unnatural offences.

After many petitions and cases, the Supreme Court decriminalized homosexuality and removed parts of the section 377 of Indian penal code which were violative of the rights of the LGBTQ community.

What were the issues involved in the petition?

The issues included the problems of violation of their rights. This includes the violation of their rights under article 14, 15, 19 & 21 which is equality before law; prohibition of discrimination on basis of race, religion, caste, sex, or place of birth; freedom of expression; protection of life and liberty under the constitution. The right to privacy and protection of sexual orientation lie at the core of fundamental rights which was also violated.

The issue/problem also included the social acceptance and legal rights that lacked in the society for them. The community was also not given adequate access to services in the health system. It was also considered against the moral values of the society.

The legal journey of decriminalizing the homosexuality

There was a very long journey of fighting for the rights of the LGBTQ community. There were landmark judgements that were in favor and against the LGBTQ community. The journey to decriminalize homosexuality started in 1994 when AIDS Bhedbhav Virodhi Andolan, an organization filed a  writ petition in Delhi High Court challenging the constitutional validity of section 377, it was the first legal protests against governmental repression of LGBTQ community but later it was dismissed.

The Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi struck off the section 377 of I.P.C. and legalized the consensual homosexual activities between the adults as it was violative of Article 14, 15 and 21 of the constitution.

Homosexual acts, later were again criminalized in 2013 where the supreme court said that plight of sexual minorities cannot be used as the basis of argument for deciding constitutionality of law as it was argued that less than 200 people had been prosecuted under this section in last 150 years. Also the court said that the legislature should look into the desirability of deleting the section.

Further in the case of Justice K.S. Puttaswamy v. Union Of India, the Supreme Court ruled that the right to privacy i.e. the fundamental right is basic to life and liberty and this comes under article 21 of constitution and declared that human autonomy is an integral part of right to privacy and has its domain to sexual orientation of individuals.

A petition was filed in the same year when the judgement of Suresh Kumar Koushal Case was passed in the year 2013. this petition was filed pleading that section 377 violates their fundamental right to life and right to liberty, which was snatching their individuality and the petitioners also said that they filed this petition stating that it is not much about sexuality but about the constitutionality of the right to live or to love or to be who they are.

This gave the historical judgement which was the decriminalizing of homosexuality and this dismissed the position that the LGBTQ community constitutes of a tiny minority and that there is no need to decriminalize homosexual sex which was stated in Suresh Kumar Koushal Case in 2013. And this historic judgement was given by a five-judge bench which included CJI Dipak Mishra, Justices R. F. Nariman, A. M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. They said that the right to privacy is a part of the right to life and this fully applies to the LGBTQ community. Therefore, after a very lengthy combat the LGBTQ community got their rights and hence homosexuality is no more an unnatural offence.

The Impact of decriminalizing homosexuality

The impact of decriminalizing homosexuality can be seen by the changing attitude of the society and how families are changing their perspective and accepting their children as who they are. The society’s anti-LGBTQ attitude has changed and the world is now accepting these changes and more awareness is being forwarded through education, counselling and many other ways. Also there is increment in self-acceptance and confidence that is being built up in the people. The people claim that they have improvements in self- awareness, self- confidence, self-acceptance and they also have gained emotional security after the judgement.

 Majority of the people have become fearless and more confident, after the judgement, they are able to stand for themselves even more confidently and bravely. As earlier police were also generally abusive towards them whether it was verbally or physically but now after judgement it has reduced significantly and this shows that it is a positive sign towards the fact that homosexuality is no more a punishable offence.

The major impact is that the general acceptance of LGBTQ community has increased in the country since the judgement has been passed. With this total acceptance there is a gradual process that certainly has changed the perspective of the society and more awareness has been there.

The media has also played a big role in the process as there has been more news about this topic and making the people more aware about accepting the change and to change their thinking and there have been movies made related to section 377 to generate more social awareness and acceptance.

There were many respondents whose families did not understand them or accept them as who they were. These families used to discriminate and there were many others who were even scared of telling their families but now after the judgement they are able to gain confidence and tell their families about them and who they love.

Challenges even after decriminalizing

There are still many challenges that need to be overcome which are faced by the LGBTQ community. The biggest challenge ahead is that of same sex marriages, even though the judgement has been passed and consensual gay sex is being decriminalized but same sex marriages are still not approved in India.

They still cannot marry each other in India where marriage is the most sacred part of many cultures.

The next challenge is that they are still not allowed to adopt which means that they could stay together but cannot have the child.

There is still no official data about the LGBT population in India where more than 2 million gay people live and still no official information is there in the system.

There are still no particular laws about the LGBT’s, there is no law fo cases where protection of transgender people from rape or any other kind of crime comes into question. Even though there is an online petition submitted for the protection of gay men and women but still the law is silent.

Conclusion

This concludes that decriminalizing homosexuality has ensured the sexual minorities in India a few steps further in living with the dignity. The undoing of section 377 ensures more confidence among the LGBTQ community which leads to self-confidence and steady growth of the country. This shows that the society is changing .Though there is still only bleak acceptance but it will hopefully improve with time and the further amendments relating to this section and in favor of the community will be made.

Though the judgement has helped the LGBT community in the issue of the discrimination of homosexuality and other aspects, it still needs an anti-discrimination law which would empower them to build productive lives and relationships as there are still petitions pending for the legalization same sex marriages. The government still needs to make many changes in order to ensure that the LGBTQ community is not denied any public service.

There is still a long road ahead for the transgender people that they need to tread.

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