LGBTQ+ Rights and Section 377 OF IPC

Khushi Khandelwal,

ICFAI University, Jaipur

Abstract

Lesbian, gay, bisexual, transgender, queer, questioning (LGBTQ) community members in India face plural forms of psycho-social and legal issues, such as corrective rape, hate crimes, workplace discrimination, or social ostracisation that could cause critical mental health issues.. Critical among these have been some path breaking legal developments, like decriminalizing consensual same-sex relationships in Navtej Singh Johar and, most fundamentally, recognition of transgender rights in the NLSA versus Union of India judgment. Despite these strides, the fight remains incomplete—very much reflected in the very recent stand of the Supreme Court on gay marriage, which supports cohabitation but falls short of any identification of the right to marriage as a fundamental right. Government initiatives on acts—like the Transgender Persons (Protection of Rights) Act, 2019—and welfare schemes are carried out for their protection and empowerment. However, social acceptance still lags, making further advocacy, education, and comprehensive support measures very much required for the true equality and integration of LGBTQ individuals in Indian society.

Introduction

LGBTQ—lesbian, gay, bisexual, transgender, and queer (or questioning)—these are phrases that describe different kinds of sexual orientations and gender identities. Lesbians are women who are attracted to other women; gay men find themselves compatible with men; bisexuals are attracted towards both sexes; transgender people are those whose gender identity is in dispute with their assigned sex at birth. Queer encompasses those who fall outside the pre-determined categories; questioning refers to those who are undecided as to their own sexual orientation or gender identity. LGBTQ is a collective term for a self-identified group whose members feel some degree of sympathy and solidarity with others on the basis of being discriminated against as a class through relation to their sexual orientation or gender identity. The LGBTQ community promotes and fights for their own liberation through striving for social equality, equal recognition, and legitimization of their status as a group deserving of respect. discrimination [i]. The LGBTQ community fights for their equality, recognition, and respect for their community.

Social Issues and Discrimination

· Corrective Rape- Children speaking out about how their parents are sanctioning the child's sexuality by using" corrective rape therapy". Corrective rape in India generally happens in order to cover the family name, to avoid smirching from religious communities, and to help abnormal perception by the surrounding community.

· Hate Crime - Hate crimes against LGBTQ+ people, including murders and brutal attacks.

In the case of Kokila, a transgender women from Tamil Naidu was harassed and discriminated several times because of her gender identity.[ii]

· Discrimination – People who belongs to LGBTQ+ communities are subjected to various discriminations at various levels by society.

1. Workplace Discrimination – Transgender employees being refused to access restrooms that correlates to their gender identity, LGBT people being passed over for promotions or assignments, Non binary people being forced to use gendered pronouns that they do not identify with and there are many other instances also.

2. Social Discrimination - Social Discrimination can lead to mental health issues and even suicide due to extreme discrimination against them including being exclude by families, communities. They also face risk of honor killings by family members, who kill them to protect the family's reputation. They are also often shamed and blackmailed by the public because of sexual orientation.

Section 377 and Its Evolution: Facilitating Legal Rights for the LGBTQ+ Community

Prior to 2009 Section 377 of the Indian Penal Code prohibited relations not only between individuals of the opposite gender but also with any individual or animal. This provision instilled fear within the LGBTQ+ community preventing many from expressing their identities.

In the case of Naz Foundation v. Government of NCT of Delhi, [iii]The Delhi High Court evaluate the constitutionality of Section 377 IPC concerning its repercussion on the rights of the LGBT Community as outlined  in Articles 14[iv] (Right to Equality), 15[v] (Non-Discrimination), and 21[vi] (Right to Life and Personal Liberty) of the Indian Constitution. The High Court’s decision deemed that criminalizing of homosexual acts under Section 377 was unconstitutional.

There were two core challenge in Suresh Kumar Koushal v. Naz Foundation,[vii] First, whether homosexuality is a criminal offence and only Parliament had the power to pass a law for decriminalizing it. Secondly, the right to privacy can be extended to cover activities which are penalized by law. However, the Supreme Court of India repelled the judgment by High court and declared that Section 377 is constitutional using their judicial powers. The court however underscored that penal provisions could not be obliterated or altered by the judiciary but only by Parliament.

Even Indian legal system recognized only binary entities and their rights, therefore, left out transgender community and drew normative framework under which they suffered discrimination. Landmark ruling in National Legal Services Authority (NLSA) v Union of India & Ors,[viii] recognized the plural rights of transgender -the right to be a third gender .The judgment ruled that discrimination on the account of gender identity are violations of the fundamental rights under the Indian Constitution, which particularly include Article 14 (equality before law); Article 15 (Prohibition of discrimination on various grounds); and Article 21(Right to life and personal liberty- including right to choose one's gender).

In a case concerning LGBT rights, in India, the petitioners in, Navtej Singh Johar v. Union of India, [ix] aimed to challenge Section 377 of the Indian Penal Code, which criminalized 'unnatural offenses. The Supreme Court agreed to hear arguments on this matter. Previously the Delhi High Court had deemed this law unconstitutional. However in 2013 the Supreme Court overturned the High Courts decision from 2009 reinstating the criminalization of same sex intercourse. In 2018 a five judge bench of the Supreme Court struck down portions of Section 377 that criminalized same sex activities. The court held that such adult consensual homosexual acts did not fall under the definition of 'unnatural offenses as per this law and thus could not be used to prosecute individuals for homosexuality. These acts were recognized as not undermining an individuals dignity or harming society but rather protected by rights to equality, privacy and dignity, under articles of the Indian Constitution.

The Navtej Singh Johar Judgment restored the confidence that every person is free to love who he is and is entitled to go against what is denying them basic fundamental rights. The decision also made us realize that social acceptance of the LGBTQ community is very important for changing gender stereotypes and predetermined gender structures. Moreover, this will even help members of the group to come out of poverty as they will get equal opportunities like others.

Fight For Rights Still Not Over For LGBTQ Community

After Navtej Singh Johar and Others v. Union of India, the Court declare Section 377 unconstitutional as applies to consensual relationships among same-sex individuals. After this verdict, petitions in a number of High Courts asked for the recognition of marriage rights to same-sex couples under constitutional law. The Supreme Court considered complaints, by taking suo moto cognizance. This led to a Five-Judge Constitution bench. The court in a 3:2 gave the verdict that right to choose, cohabit and enjoy physical intimacy but did not place an obligation to recognise LGBTQIA+ unions and democratise private spaces. It was also held that marriage  is not a fundamental right and did not hinder the individual’s ability to exercise their right to privacy, right to choice, and autonomy under Articles 15 and 21 of the Constitution.[x]

Rights Available To The Community                    

· Transgender Persons (Protection of Rights) Act, 2019: This act defines that any person belonging to the category of transgender has equal rights as other citizens in society. There shall be no discrimination against any transgender person at any level, starting from access to medical facilities and recognition, identity certificates, and health care and support and rehabilitation. The Act is thus enforced to safeguard the interests of the transgender community from exploitation and harassment and extend them the benefits drawn under welfare schemes.

· Welfare Schemes: The Government of India has introduced several welfare schemes on LGBTQ-related issues, especially those concerning transgender persons:

1. TG Certificate and ID Card- The Ministry of Social Justice & Empowerment will issue a certificate and an identity card to transgender people which will be accepted as a proof of identity throughout the country and thus recognize the gender transitioned by the person concerned.

2. Scholarships: Government of India Ministry of Social Justice & Empowerment provides scholarships scheme for trans person who wants to pursue higher and professional education.

3. Skill Training Program: Government has organised Skill Training Program to make sure that transgender people possess ample power to excel in entrepreneurial areas and earn life. These programs can be categorized into: - Short-term programs & Long-term programs

4. Composite Medical Health Scheme: It is about medical insurance for better health of transgender who has undergone SRS and other medical supports which they require.[xi]

· Smile Scheme: The Ministry of Social Justice & Empowerment initiated an umbrella plan, "SMILE - Support for Marginalized Individuals for Livelihood and Enterprise, on 12.02.2022 having two sub-schemes – 'Central Sector Scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons' and 'Central Sector Scheme for Comprehensive Rehabilitation of persons engaged in the act of Begging.' Under this umbrella scheme, several comprehensive measures with welfare measures for transgender persons and the persons engaged in the act of begging are helped with the issues related to rehabilitation, provision of medical facilities, counseling, education, skill development, economic linkages, etc. with the help of State Governments/UTs/Local Urban Bodies, Voluntary Organizations, Community-Based Organizations/CBOs, and institutions amongst others.[xii]

Conclusion

Significant strides have been made by the LGBTQ community in India in recent times — primarily through landmark legal judgments that have upheld their rights. This act of breaking age-old discriminatory laws forever changed the course of history; one such milestone was the decriminalization of consensual same-sex relations. The case of Navtej Singh Johar shed light on the importance of equality, privacy and dignity, for individuals of their orientation. Moreover the enactment of laws such as the Transgender Persons (Protection of Rights) Act 2019 and various welfare programs has established a support network, for this community.

Progress has been made in these areas, but the LGBTQ community faces many social issues that are deeply interwoven with discrimination at the workplace, ostracism in society, and hate crimes. The origins of corrective rape or honor killings should be left to disappear along with the dark ages from whence they came almost immediately. Legal changes have been implemented through reform— society then starts changing but real equal treatment is still a work in progress.

The recent judgment of the Supreme Court on same-sex marriage rights did recognize individual rights to coexist and enjoy physical pleasure but was not quite enough to define marriage as a right that is basic. The decision infers that there is still a long way to go in the struggle for full legal recognition as well as social acceptance. Efforts such as education and skill development plus healthcare support have to be taken in order for the LGBTQ community to be fully integrated into society and economically independent, since it appears that both aspects will not come without further actions.

The advancements achieved until now serve as a strong footing to the forthcoming legal and other measures, to ensure that the rights and dignity of LGBTQ persons are upheld and celebrated in all sectors of Indian society.

References

[i] Duignan, B. (2024, June 18). lesbian, gay, bisexual, transgender, and queer community. Encyclopedia Britannica. https://www.britannica.com/topic/lesbian-gay-bisexual-transgender-and-queer-community

[ii] Choudhary, R. (2017, August 9). India's law fails LGBT people. Policy Forum. https://www.policyforum.net/indias-law-fails-lgbt-people/

[iii] Naz Foundation v. Government of NCT of Delhi, WP(C) No.7455/2001, (2009) 160 DLT 277.

[iv] The Constitution of India, art. 14.

[v] The Constitution of India, art. 15.

[vi] The Constitution of India, art. 21.

[vii] Suresh Kumar Koushal v. Naz Foundation,(2013) 1 SCC 1.

[viii] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[ix] Navtej Singh Johar v. Union of India,(2018) 10 SCC 1.

[x] Supriyo @ Supriyo Chakraborty & Anr. v. Union of India & Ors., W.P. (C) No. 1011/2022 (Supreme Court of India, 2018).

[xi] https://vikaspedia.in/social-welfare/human-rights/lgbtqi-community-in-india

[xii] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1806161