DECRIMINALIZATION OF SECTION 377
On September 6, 2018, Sectin 377 was decriminalised (Navtej Singh Johar v. Union of India). The judgement was handed down by a five-judge constitution bench led by Chief Justice Dipak Misra. The bench also included Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, in addition to the CJI. During British colonial control in India, the legislation against homosexuality was enacted over 80 years before the country became independent. Section 377 refers to 'unnatural offences,' and states that anyone who voluntarily engages in carnal intercourse against the natural order with any man, woman, or animal will be penalised, which might include imprisonment and a fine. The issue of Section 377 was initially brought up by the NGO Naaz Foundation, which petitioned the Delhi High Court in 2001 to have the punitive provision (i.e. sex between consenting adults of the same gender) declared "illegal." The Supreme Court overruled the high court's 2009 decision in 2013.
DEFINITION OF SECTION 377
Whoever intentionally acts in carnal intercourse with any man, woman, or animal against the natural order shall be punished by life imprisonment or a term of imprisonment of either description of up to 10 years, as well as a fine. Carnal intercourse is not required for the offence listed in this section. This means that any form of carnal intercourse other than vaginal penetration, generally known as penetrative sex, is prohibited, regardless of whether the two adults involved have mutual permission and whether they are heterosexuals or members of the LGBT community.
Homosexuality was punishable by death in England in the 1800s, and they imposed their Victorian values on us in the second half of the century. Section 377 of the Indian Penal Code was introduced during the British control of India. It is based on the Buggery Act of 1533 and is used to criminalise sexual actions that are "outside the order of nature." Section 377 has been vulnerable to a range of court interpretations over time due to the lack of a clear definition. Section 377 made homosexuality, as well as certain heterosexual actions that were not considered normal, such as anal or oral intercourse, illegal.
ANALYTICAL VIEW POINT
The day was one of the most elated and celebrated one for the LGBTQ ( Lesbian, Gay, Bisexual, Transgender, Queer) community when 377 was decriminalized, many of them revealed their identity which they had concealed for years. Though the section 377 has been decriminalized, has the community been accepted by the society as it would have been. The answer is no, the community still faces discrimination, unfair treatment and struggle to live a dignified life. Society has weird notions, stereotypes regarding LGBTQ community. The simple fact is that we all are human beings and we should respect each other, just because someone has different sexual preference other than the norm set by the society, the person is considered abnormal. A kid who might be gay faces discrimination, abuses from his own family, friends, school and so on, because a male child has to be masculine, if he behaves feminine he is subjected to laughter. Family where even discussion over the subject of homosexuality is forbidden, where it is considered as taboo or disease, let alone coming out to parents about being one is a difficult task.
The community might not be considered as criminals anymore but the mindset of the society is still the same. No one understands that it’s not his choice and are forced to marry opposite gender. Society has a hypocrite attitude, they might be okay sometimes if someone else child come out as gay, lesbian or bisexual but that could not accept the same if their own child come out to be the same. They think it will bring shame to the family. Though in urban areas people have become quite accepting and LGBTQ community can live freely but in the semi-urban or village area the condition has not improved much. There has been positive impact as well.
There have been a lot of changes. The queer people now are a little more confident about themselves. There are a lot of people who have been able to find courage and come out post the judgement and even argue their case in front of their parents and peers. Things have surely changed LGBT people are now more confident to express themselves, grow personally, and own their relationships without the fear of discrimination and harassment. However, this change has primarily been for the urban, privileged. Also, the lives of transgender people have not really improved much. The judgement has limitedly helped transgender people and familial and social acceptance is still a pipe dream for many. It continues to be difficult to be open at workplaces. The LGBT community does not have any rights per say which society takes for granted like the right to marriage, inheritance so these are rights that should be there for everyone in society. Unfortunately, the LGBT community has been left out of it and that is something that needs to happen.
If normal men and women have the right to live in this society with respect then why not a person who belongs to LGBT can live in this society with respect. It’s about humanity. Even Lord Rama had given a boon to hijras for their loyalty that’s why the curse or boon of hijras means a lot to the normal beings.
I think everyone who is living in this world, has equal rights to live in this society with full respect. No one should be just be judged on the basis of sexual orientation, it’s just a matter of choice. There should be equality for all..
Non-LGBT people in India confront legal and social problems that lesbians, gays, bisexuals, and transgender (LGBT) individuals do not. While having sexual relations with someone of the same gender is legal, same-sex couples cannot legally marry or create a civil union. Officials have persecuted members of the group for years, routinely violating the now-defunct secrecy rule.
A new letter is added to the collection every year, which is why + is included. The initial classification was homosexuality, followed by L & G, B, T, Q, and I. (queer and intersex). Years of fight by India's LGBTQI+ community for equal rights under Indian law have come to an end with the verdict.
Many child advocates have criticised the Delhi High Court's decision to decriminalise section 377, which is critical in preventing child abuse. Section 377 is no longer necessary in cases of child sexual abuse, according to the passage of the Protection of Children from Sexual Offenses (POCSO) Act in 2012.
Still homosexuality and other forms of sex are seen as violating nature's laws. The perspective of the society has been changing gradually but still there is a long way to go. In India still people still has prejudices, stereotypes against he lgbtq community. They have not been accepted yet by the society. Still same sex marriage has not been legalised. I wrote on this topic as it is the month of June, the pride month, making banners in rainbow colours does not make you empathise with the community, we need to give them their rights, the respect they deserve. People are still so conservative they look at the people of the community with utter disgrace, people still do not feel comfortable in revealing their identity and come out as lgbtq because they know after coming out as lgbtq the outlook of society will change towards them. They do not get job easily, they are harassed and assaulted everywhere. The assault starts from the family itself. Even the family members do not accept their child’s orientation or sexuality they compel them to behave masculine if it is a boy and feminine if it a girl, transgender, intersex and other such children are abandoned by the family. They do not get home, shelter, food and education and are compelled to do sex work.
People mock at them in schools, they do not have friends. They are raped and sexually assaulted at every stage even by their own family members and strangers. People treat them a piece of meat to satisfy their sexual needs and than treat them badly. The Bollywood has started making movies on such topics like “Shubh mangal jyada saavdhan”, “Ek ladki ko dekha to esa laga”, hope it will have some impact on the society and will change their outlook towards the LGBTQ community.
There should be EQUALITY FOR ALL and equal rights!
Institue of Law, Nirma University Ahmedabad
B.A LL.B (Hons.) 2020-2025