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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

SECTION 377

 Introduction

We live in a democratic country where everyone is entitled to fundamental rights. As per article 14 of the Indian Constitution, ““The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[1] Though as per our constitution, the law remain the same for every person irrespective of his caste, creed, sex etc it seems that the majority of the society is yet to understand this. In the landmark case of Navtej Singh Johar Vs. Union of India, it was held that section 377 was unconstitutional as it criminalised consensual sex between adults of the same sex.[2] Section 377 was drafted by Thomas Macaulay in the year 1838 and it came into effect in the year 1860. The law was derived from the Buggery Act, 1533 [3]which referred to any unnatural sexual act against the wish of God or human. 

Ever since then, article 377 had been in force until the Judgement given by the Supreme Court to take down the article in the year 2018. The other provisions of the article remained in power and only the consensual sex between adults of the same gender was abolished. Section 377 was a matter of controversy for decades. The contentious section was first challenged in the court by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan in the year 2001 but both the petitions were dismissed by the court. It was a matter of relief for the people belonging to the LGBTQ community as the Delhi High Court decriminalised consensual sex between two adults of the same gender in the year 2009 as it was violating article 14, 15, 21 of the Indian Constitution. However, the sense of relief lasted with the LGBTQ community only for a few years as the apex court of the country declared the judgement of the Delhi High Court to be legally unsustainable and also rescinded the judgement made by the Delhi High Court. People had mixed reviews about the judgements which lead the country to plunge into a situation of ecstasy and agony.

It was the year 2014 which is termed to be a turning point for the LGBTQ community. The Supreme Court finally directed the government to recognize the LGBTQ community as a third gender and identified them under the OBC Quota. Earlier, the people belonging to the LGBTQ community were compelled to choose among the two genders mentioned in the constitution and were therefore deprived of the Right to Sexuality. After the declaration made by the Supreme Court, the transgenders and the people belonging to the LGBTQ community got their own recognition. After their first achievement, the LGBTQ community continued their journey to seek their rights and filed a petition in the Supreme Court challenging Section 377 of the Indian Penal Code. They stated in their petition that section 377 violated their Right to Sexuality, Right to Sexual Autonomy, right to choose their sexual partner, Right to Life, Right to Privacy, Right to Dignity and the Right to Equality which are granted to every citizen of the country under Part II of the Indian Constitution.[4] The year 2017 brought another victory to the people and the LGBTQ community especially as it observed the Right to Privacy as the fundamental right and also observed sexual orientation to be an essential attribute of privacy.[5] It was the year 2018 when the petition challenging Section 377 were heard by a five judge constitutional bench and it was finally decided by the Supreme Court that consensual sex between two adults of the same gender is legal. The Supreme court in the judgement also sought an apology to the LGBTQ community for the violation of their rights in society. It was a very clever decision of the apex court to refrain from taking down section 377 completely as it would allow people to indulge in activities relating to sexual activities with minors, non-consensual sexual activities and bestiality. The completely striking down of Section 377 would amount the country to land in a very precarious situation as the sexual crimes against the minors and animals would witness a gigantic increase in the country leading the country into a pernicious situation. Therefore, it is very vivid that the lawmakers have taken a very crucial and great decision by providing the LGBTQ communities with their identity and rights they deserve.

After the historical judgement pronounced in favour of the LGBTQ community, the government took the initiative to bring a bill for the transgender community in the Lok Saba. The bill was introduced as “The Transgender Person (Protection of Rights) Bill, 2019”. The bill was introduced with an aim to provide the LGBTQ community with their rights. The bill might have successfully been able to provide some rights to the LGBTQ community but it was heavily criticized by the LGBTQ community for the process mentioned in the bill for availing the certificate of identity because the LGBTQ community felt that undergoing the process of issuing identity would amount to their breach of privacy. The bill was also heavily panned for criminalizing begging for the LGBTQ community. Criminalizing begging for only the LGBQ community would amount to discrimination of the transgenders among the other people in the country and is thus held unconstitutional as it violated Article 14 of the Indian Constitution. The other reason for the bill to face heavy criticism was that the bill mainly focused on the transwomen and Hijras while the Lesbian, Gay, Transmen etc. people of the community were not given their due recognition.[6] Hence, the bill was a mixture of advantages and disadvantages for the LGBTQ community and therefore, the bill cannot be stated as very efficient.

CONCLUSION

After having read and understood the law relating to the LGBTQ community in detail, I have reached to a conclusion that the judiciary has been successfully able to bring justice to the LGBTQ community but on the other hand, we as a society have failed to accept the judgement made by the apex court. Even though the Supreme Court has made it clear in their judgement that the LGBTQ community should be treated as a normal citizen of the country and should be provided with every right which a normal citizen possesses in our country, the society has not yet been able to accept them as its part. The LGBTQ community often find themselves a victim of abuse, bullying etc. which lands them in mental health problems like depression, Anxiety Disorder etc and therefore, they cannot live their life as a normal citizen of the country due to the discrimination faced by them in the society. Thus, the laws may have been implemented by the apex court in the country, the implementation of the law is in vain if society is not able to accept the LGBTQ community. Therefore, the present and future of the LGBTQ community lie within society along with the judicial system.

[1] The state at
https://www.google.com/search?q=article+14+of+indian+constitution&oq=article+14&aqs=chrome.1.69i57j69i59j0i433l2j0j0i433j0l4.4731j0j7&sourceid=chrome&ie=UTF-8
[2] Navtej Singh Johar at https://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_Code#:~:text=On%206%20September%202018%2C%20the%20Court%20ruled%20unanimously%20in%20Navtej,adults%20of%20the%20same%20sex%22.
[3] Buggery Act at https://factly.in/tracing-the-history-of-ipc-section-377/
[4] Right to sexuality at https://timesofindia.indiatimes.com/india/what-is-section-377/articleshow/66067994.cms
[5] Sexual Orientation at https://timesofindia.indiatimes.com/india/what-is-section-377/articleshow/66067994.cms
[6] Bill mainly at https://www.thehindu.com/news/national/watch-all-about-the-transgender-persons-bill/article30122229.ece
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Author: Aditya Singh, Amity Law School, Noida

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