LGBTQ AND SECTION 377

Published On: 16th December, 2023

Authored By: Ashika
Amity University, Lucknow

HISTORY

Nowadays India has been developing on several stages. Since 1947, a lot of changes have been introduced in Indian society ranging from technological changes to cultural changes. India has an extraordinarily rich culture and is very well known for the same. Additionally, India has also adopted various modern methods to cope with other developing countries. One such modernization includes the developments that have been made for the LGBTQ communities. About 8% of the population in India is associated with the queer community. Slowly the acceptance of the same is being created in society, but this acceptance has a long history behind the same. In ancient history, the Rig Veda contains an incredibly famous phrase Vikriti Evam Prakriti which means what seems unnatural is also natural. The term “Swarinis” refers to lesbians which have been mentioned in Kamasutra. During medieval times, society did not approve of homosexuality. During the Mughal times, many incidents provided for homosexuality Mubarak the son of Alauddin Khalji was known that he was having a relationship with one of the noblemen of his court. Babur also wrote about his love for a boy named Baburi. In 1977 the first study of homosexuality was published by Shakuntala Devi called “The World of Homosexuals”. The Britishers during their time had passed Section 377 which criminalized homosexuality.

GROWTH OF THE LGBTQ DEVELOPMENT

The first All-India Hijra Conference was held in the year 1981 at Agra and it comprised a of total 50,000 members from the community. Voting rights as a third sex were legally granted to Hijras in the year 1994. The first petition which challenged section 377 was filed by AIDS Bhedbhav Virodhi Andolan, but the same was rejected. Later, a PIL (Public Interest Litigation) was filed by the Naz Foundation challenging Section 377 in the year 2001. In this case, the High Court of Delhi in 2009 held that section 377 violated the fundamental rights of life, liberty, and equality of the people provided by the constitution. Gay sex was no longer regarded as a crime but was not legalized [1]. But this was being challenged by an astrologer named Suresh Kumar Koushal. The Supreme Court rejected the Centre’s and several other organizations’ review appeal against its earlier ruling on section 377 in 2014, stating that the LGBTQ community was a “miniscule fraction” of the nation’s population and could not be sustained lawfully. The Indian Supreme Court declared in April 2014 that transgender persons ought to be classified as the third gender category. The country’s LGBTQ community was granted the ability to safely express their sexual orientation on August 24, 2017, by the Supreme Court. The Right to Privacy statute protects a person’s sexual orientation. LGBTQ individuals now had the freedom to express their sexual preference, although gay activity was still illegal at this time. On 6 September 2018, the Supreme Court struck down the part of this section that criminalized homosexual activities.

The Transgender Persons (Protection of Rights) Bill, 2019

This bill was introduced in Lok Sabha in the year 2019 by The Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. The bill defines transgender as persons whose gender does not match with the gender that was by birth. It further includes trans-women, trans-men, persons with intersex variations, and kinnar hijras. Following the Bill, it is illegal to discriminate against a transgender person in any of the following areas: (i) healthcare; (ii) employment; (iv) access to or enjoyment of public goods, facilities, and opportunities; (v) freedom of movement; (vi) right to own, rent, or otherwise occupy property; (viii) opportunity to hold public or private office; and (viii) access to a government or private establishment whose care or custody a transgender person is. It is illegal for the government or any private organization to discriminate against a transgender person in any aspect of their job, including hiring and advancement. To handle complaints against the Act, each business must appoint a person to serve as a complaint officer. Each transgender person is entitled to live in and be a part of his household. A competent court may order the placement of a transgender person in a rehabilitation center if the person’s immediate family is unable to provide for them. Transgender people must have equal access to inclusive education, sports, and recreational opportunities in educational institutions funded or recognized by the relevant government, without facing discrimination. The government must take action to give transgender people access to medical facilities, such as sex reassignment surgery and a dedicated HIV surveillance center  The government will revise medical curricula to address transgender health issues and offer comprehensive health insurance plans to them.  A transgender person may apply to the District Magistrate for a certificate of identity designating them as “transgender.”  Only after undergoing surgery to change from a male to a female identity can the person receive a revised certificate.

 Penalties and offenses: The following offenses against transgender people are recognized by the bill: (i) forced or bonded labor (apart from mandatory government service for public purposes); (ii) denial of access to public areas; (iii) expulsion from one’s home and community; and (iv) abuse on any level, including physical, sexual, verbal, emotional, or financial.  These offenses carry fines in addition to jail terms ranging from six months to two years.

Transgender People’s National Council (NCT): The following individuals will make up the NCT: (i) the Secretary of the Ministry of Social Justice; (ii) the Minister of State for Social Justice (Vice-Chairperson); (iv) one representative from each of the following ministries: Health, Home Affairs, and Human Resources Development. Representatives from the National Human Rights Commission and NITI Aayog are among the other members. Additionally, state governments will be represented. Five representatives from the transgender community and five experts from non-governmental organizations will also be on the Council. In addition to providing advice to the federal government, the Council will keep an eye on the effects of projects, laws, and policies pertaining to transgender people. Additionally, it will address transgender people’s complaints.

SECTION 377

This section of IPC states that anyone who willingly engages in carnal relations against the natural order with a man, woman, or animal faces a penalty of 1 [life imprisonment] or imprisonment of any kind for a maximum of 10 years, in addition to a fine.

CONSTITUTIONALITY OF THIS SECTION

 Naz Foundation contested Section 377 of the Indian Penal Code’s constitutionality before the Delhi High Court 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 procreation. 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 an offence 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 consensual sexual acts that do not involve the vagina. In the Supreme Court, many groups and individuals contested the Delhi High Court’s decision. They contended that decriminalizing homosexuality would be harmful to the institution of marriage and would encourage young people to engage in homosexual activities and that the right to privacy does not include the right to commit any crime. In the Suresh Koushal case from 2013, the Delhi High Court’s decision was overturned by the Supreme Court, which ruled that Parliament, not the Court, was the proper body to decide whether or not to decriminalize homosexuality. Additionally, it was decided that Section 377 criminalizes specific behaviours rather than members of a specific group. It also referred to the extremely small number of LGBTQ+ individuals and the fact that very few of them had faced legal action. Numerous petitions seeking remedies were submitted, contesting the ruling of the Supreme Court. Five members of the LGBTQ communities, including media personality Sunil Mehra, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath, and well-known Bharatnatyam dancer Navtej Singh Johar, filed a fresh writ petition to repeal Section 377 IPC, which criminalizes consensual sex between same-sex individuals, while the curative petitions against Suresh Koushal were still pending.

Despite the curative petitions still pending before the Court, on January 5, 2018, the Supreme Court established a Constitution Bench to hear the challenge to Section 377 comprehensively. This might be because of the remarks made in the nine-judge ruling in the Right to Privacy case, which alluded to the intrinsic flaws in the logic and ruling in the Suresh Koushal case. On July 10, 2018, the case was heard by a five-judge panel that included Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman, and Indu Malhotra. The Indian Penal Code’s Section 377 was partially overturned by a five-judge bench on September 6, 2018, decriminalizing same-sex relationships between consenting adults. Section 377’s criminalization of non-consensual acts and sexual acts on animals has been upheld by the Court. All four rulings cited violations of fundamental rights as grounds for invalidating Section 377. They discovered that Section 377 violates Articles 14 and 15 of the Constitution by discriminating against people based on their sexual orientation and/or gender identity. Additionally, they determined that Section 377 infringes upon Article 21’s guarantees of life, dignity, and the freedom to make one’s own decisions. They discovered that it impedes the full realization of an LGBT person’s identity by going against Article 19(1)(a) right to freedom of expression. 

PLEA FOR MARRIAGE EQUALITY

Supriyo @ Supriya Chakraborty & Anr. v Union of India

Two same-sex couples filed writ petitions with the Supreme Court on November 14, 2022, requesting that same-sex marriages be recognized legally in India. The Special Marriage Act, 1954 (the Act) and its constitutionality were at the heart of the petitions. Abhay Dang and Supriyo Chakraborty filed the first petition. Uday Raj Anand and Parth Phiroze Mehrotra filed the second petition. The petitioners contend that only marriages between “male” and “female” are recognized under Section 4(c) of the Act. This deprives same-sex couples of employment opportunities, retirement benefits, surrogacy, adoption, and other matrimonial benefits, thereby discriminating against them. The petitioners requested that Section 4(c) of the Act be ruled unconstitutional by the court. Numerous other petitions contesting other personal laws on comparable grounds have been tagged with the plea. The Hindu Marriage Act of 1955 and the Foreign Marriage Act of 1969 are two of the laws that are being contested. The petitioners contend that the rights to equality, freedom of speech, and dignity are violated by the refusal to recognize same-sex marriage. Their arguments were supported by the 2014 NALSA v. Union of India case and the 2018 Navtej Singh Johar v. Union of India case, which acknowledged non-binary gender identities and ensured equal rights for homosexual people. A Supreme Court bench made up of Justice Hima Kohli and Chief Justice D.Y. Chandrachud issued an order on November 25, 2022, directing the Union to reply to the petitions. Comparable petitions are pending in the High Courts of Kerala and Delhi. Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy urged a two-judge bench made up of Justice P.S. Narasimha and CJI Chandrachud to transfer two petitions that were pending before the Delhi and Kerala High Courts to the Supreme Court on January 3, 2023. On January 6, 2023, the Bench decided to list the transfer petitions in addition to the main petition. On January 6, 2023, the Delhi and Kerala High Courts sent nine pending petitions addressing related matters to a three-judge bench led by Chief Justice D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala. A 3-Judge Bench headed by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench on March 13, 2023.  On May 11, 2023. The 5-Judge Bench will rule on petitions requesting marriage equality for LGBTQIA+ individuals on October 17, 2023.

CONCLUSION

Even though the rights have been provided to the transgender community several developments have also been made for them. Society is somehow not willing to accept the people as they are not that comfortable with the modern process. Due to this reason, there are many instances where the community feels discriminated against. The legal system has also not led it to legal, the petition for same-sex marriage is one of the examples as the court has passed that same-sex marriages are not being allowed.

REFERENCES

Yadav, A. (2021) A brief history of LGBTQ+ in India, The CBS Post. Available at: https://newsletter.sscbs.du.ac.in/a-brief-history-of-lgbtq-in-india/

The Transgender Persons (Protection of Rights) bill, 2019 (2023) PRS Legislative Research. Available at: https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019

Section details (no date) India Code. Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=434#:~:text=Whoever%20voluntarily%20has%20carnal%20intercourse,also%20be%20liable%20to%20fine

Constitutionality of section 377 IPC (2023) Supreme Court Observer. Available at: https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/

Plea for marriage equality (2023) Supreme Court Observer. Available at: https://www.scobserver.in/cases/plea-for-marriage-equality/

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