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SCRAPPING SECTION 377-LETS WAVE THE RAINBOW HIGH!

And the world’s Largest Democracy DECRIMINALISED THE MARRIAGE OF GAY COUPLES. The years of struggles are finally paying off when the day came for the change.

And the world’s Largest Democracy DECRIMINALISED THE MARRIAGE OF GAY COUPLES. The years of struggles are finally paying off when the day came for the change; the change which India needed to make one NATURAL PHENOMENON, remove its stigma and live with PRIDE. Our country, India has now secured its name among the catalogue of those 125 nations where homosexuality is legal.

The Supreme Court of India took a historical judgement of legalizing the marriage between gay couples and read down section 377 of IPC which criminalizes homosexuality, thus providing a huge boost to the LGBTQ community. SC stated “Sexual Orientation is a natural phenomenon determined by Biology and Science. Any discrimination on this basis is unconstitutional.”

WHAT IS SECTION 377?

Chapter XVI, Section 377 of the Indian Penal Code (IPC) dating back to 1861, introduced in the British era, declaring sexual activities “against the order of nature” illegal.

The Section also explains the term; UNNATURAL OFFENCES which states “Whosever 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 10 years, and shall also be liable to fine”.

WHAT IS LGBTQ?

The LGBTQ is a well-defined group of Lesbian, Gay, Bisexual, Transgender and Queer.

  • Lesbian- A homosexual woman or a woman who is sexually attracted to other women.
  • Gay- A homosexual man or a man who is sexually attracted to another man.
  • Bisexual- A person who experiences a sexual attraction to both men and woman.
  • Transgender- A person who biologically belongs to either of the binary gender but mentally finds itself to be opposite of the assigned biological genders. For instance- A boy finding himself to be more interested in so-called girl’s items like wearing bangles, etc. and vice versa.
  • Queer- This special category is formed by extending the acronym of above Four, a pun for a question mark or Queer. These are the individuals who recognize their gender as NONE or somewhere between the Male and the Female genders.

The LGBTQ community have come together to fight for their basic Rights inside the nation and celebrate Pride, Diversity, Individuality and Sexuality. Today the total population of the LGBT community is 2.5 million. LGBT activists have the vision to build the LGBT community to counterbalance heterosexism, sexuality, homophobia and biphobia, which are prevailing in the society. The gay community is often recognized with a certain symbol. The colours of rainbow have been identified as symbol to represent the LGBT community.

  • Pink- Sexuality
  • Red- Life
  • Orange- Healing
  • Yellow- The Sun
  • Green- Nature
  • Blue- Art
  • Indigo- Harmony
  • Violet- Spirit

The LGBT pride or Gay pride parades have rendered the promotion of the self-affirmation, equality, prestige and visibility of LGBT in the society as a community.

With the passage of time, the Gay pride march has gained momentum and support from the public throughout the country. The Month of JUNE is celebrated as an LGBT Pride Month. The era of Pride month had begun by European countries in 1994 and today it has successfully recognized globally. LGBT pride month assists the whole LGBT community to represent a civil rights statement, get the opportunity to reveal their presence in the society and empowers themselves physically, mentally, emotionally and economically.

STRUGGLES OF LGBTQ+

Since the colonial rule, which has given birth to the Section 377 of Indian Penal Code in 1861, the lives of gays had been subjected to a catalogue of sufferings-Be it a family, friend or the workplace. The dawn of independence has led to drafting of the whole constitution nevertheless, for the LGBTQ community, a ray of hope had taken centuries to bestow! The community had frequently been abused, the acts frequently been sighted as a crime enduring the community to leave their identity in stark darkness.

In 2001, ten people were arrested on the basis of ‘men have sex with men’ (MSM). House owners found reluctant to rent rooms to the members of the LGBTQ community and the community found denied various job entitlements at workplace by employers, hence making the whole LGBTQ intangible- invisible and voiceless!

TOUR TO THE LANDMARK CASES

S.no.

Landmark Cases

Year

01.

NAZ Foundation V. Govt. of India

2009

02.

Suresh Kumar Koushal V. NAZ Foundation

2013

03.

NLSA V. Union of India & Ors

2014

04.

K.S. Puttuswamy V. Union of India

2017

05.

Navjot Singh Johar V. Union of India

2018

The first landmark case filed in the Delhi High Court in context of LGBTQ was NAZ FOUNDATION CASE 2009 which had questioned; “whether section 377 should be scrapped?” The court dealt with the case in two angles first in the scope of-Right to Life (Article 21) [Argument-No one can enjoy Right to life without Dignity and Privacy.] The second – Right to Equality (Article 14 &15). [Argument 1- Section 377 is a violative part of Article 14 as it makes unreasonable discrimination, it discriminates Homosexuals as a class and criminalizes their consensual sex. Argument 2- Article 15 prohibits discrimination on the basis of sex, where the term sex not merely refers to biological sex but also refers to sexual orientation]. The court recognized the sexual orientation as a “natural and inherent” biological phenomenon and not a matter of choice. The court declared that more weightage should be given to Psychological test rather a biological test and part of Section 377 that criminalizes homosexuality should be declared unconstitutional.

But the landmark case of Suresh Kumar Koushal Vs. NAZ Foundation overturned the 2009 judgement of the High court and brought a significant step backwards, raising two counter-arguments before the court that Homosexuality is a criminal offence, merely Parliament can decriminalize it and not the Court and the other argument was that Right to privacy cannot be extended to such an extent where an offence can be declared under this right. The judgement dawned, in this case; compelled the people to again keep their identities disclosed and halt in freely expressing their sexual orientation who were ready to face the world with who they are, after the judgement of NAZ foundation case of 2009. The judgement on Suresh Kumar case targeted the community and sighted them as criminals.

2014’s NLSA Vs. Union of India & ORS (Transgender case) saw the loopholes in the Indian Laws that is inclusive of Binary Sex merely and rights of trans genders are not mentioned in any of its provision, as a result, the community is facing such discrimination. The SC declared multi-faceted rights of Transgenders under the Article 14,15,16,19 and 21. The judgements announced in this case aided self-identity and gender identity to be legally recognized. In 2015, a private bill was also proposed by Congress MP Shashi Tharoor in the context of legalizing Homosexuality but didn’t come to  the notice of the government. 

On 24th of August 2017, under the landmark case of Puttuswamy, where the bench of nine judges sat in the Supreme Court, “Right to privacy” as a fundamental right under the constitution is affirmed. SC stated that “the protection of sexual orientation lies at the core of the fundamental rights and the rights of the LGBT population are real and founded on constitutional doctrine.” Eventually, the verdict in the case of Navtej Singh Johar V. Union of India by the apex court, on 6th of September 2018 decriminalized all consensual sex among adults in private, including Homosexual sex. The Five judge bench succeeded the ‘Battle for justice’ by the LGBTQ community who has fought for their every inch of right, recognition and the equality. The constitutional bench comprising of CJI Deepak Mishra, Justice Indu Malhotra, Justice DY Chandrachud, Justice RF Nariman and Justice AM Khanwilkar. They all have given separate but concurrent judgements. The landmark judgement of overturning a 157-year old-law was also the tireless efforts of two amazing Public Interest Litigators namely, Arundhati Katju and Menaka Guruswamy. The SC recognized the right to live with dignity and declared that the approach of Delhi High Court during the judgement of NAZ Foundation case to define the term ‘sex’ as ‘biological sex’ plus ‘sexual orientation’ was the most appropriate approach. 

VIEWS FROM POLITICS CORNER

  • Views in Favor

Former Finance Minister, Arun Jaitely supported the judgement of Delhi High Court in the verdict of 2009 NAZ Foundation case.

RSS leader Bhagwat also supported it and stated that the LGBTQ community should be considered the integral part of the society.

AAP, the ruling party of Delhi also shown its consent to the verdict of apex court saying the criminalization of Homosexuality not only robs the Human Rights but also Liberal values of those individuals.

  • Views against the motion

The BJP leader Subramanian Swamy considered homosexuality to be against Hindutva and that government should invest in curing homosexuality as it is no way a normal thing and perhaps a danger to the national security.

Baba Ramdev also went against the judgement stating that homosexuality can be cured through yoga.

LGBTQ &THE LANGUAGE

After the scrapping of Section 377, questions began raising in various fields of our daily life and the one most vital is LANGUAGE. Are the languages free from gender prejudice? The language Hindi claimed to be gender obsessed with masculine and feminine gender of every Hindi word.

The word of the year 2019 by Merriam-Webster was announced – “They”. The logic behind this chosen term was that the pronoun refers to a person, not necessarily be confined to binary gender identity.

THE LOOPHOLES STILL EXISTING!

The battle didn’t end with the SC judgement of eliminating the section. The real fight has begun now and it was merely the first step of success. The requisite changes are still many in a row to give utter justice to the community. Homosexuals cannot donate blood, cannot nominate a homosexual individual for seeking insurance and also such couples can’t adopt a child. Moreover, the Trans genders are still not uplifted to the mainstream. This marginalized community has yet its own sufferings in a queue!

THE WAY FORWARD TO THE VERDICT

Do merely passing the judgment will make India, accept gay-marriage in the society and considering it to be a new normal? There are yet to accomplish a milestone in this arena… The challenges are still many to be faced!

The narrow-minded people have dwelled the binary gender perspective for ages hence the mindset cannot be overturned overnight.

The urgency to bridge the gap between the reel and the real. Things are just looking fair on the prima facie.

India needs to be educated ahead in this line to accept it socially, mentally and psychologically.

Schools need to impart the knowledge of a third gender that also exists in the world to make the kids familiar to it. But this begins with the educators or the teachers accepting the new scenario as people find it pretty hard acknowledging new things. Besides, a proper planning of sessions and webinars are also required for a change. The whole month of June is celebrated as a Pride Month. But, how many of us share those things? Barely some! So, we need to celebrate the same. Let’s talk in open and break the taboo for good! And let’s wave the rainbow high.

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