On September 6, 2018, a five-judge bench of the Supreme Court of India decriminalized section 377 of the Indian Penal Code that previously criminalized ‘carnal intercourse against the order of nature with any man, woman or animal’, making it an ‘unnatural’ and punishable offence. The section will continue to apply only in cases of bestiality, carnal intercourse with minors and in cases of no consent. Ever since its inception in 1860, section 377 was interpreted and taken to ban homosexual relations in India, without making any distinction between ‘consensual’ and ‘non-consensual’ acts; without clearly defining what is ‘natural’ and ‘unnatural’, and who is to decide what is against the order of nature. The existence of section 377 had along the years left the LGBTQ community of India devoid of an absolute ‘identity’ in consideration of their sexual orientation, thus, further infringing upon their constitutional rights of equality, privacy and other civil rights. With the decriminalization of section 377, homosexual relations become legal, creating space for the recognition of the LGBTQ community as equal citizens, their rights of marriage, adoption, accessibility to all civil services, employment opportunities and other fundamental rights that the constitution of India guarantees to its citizens.
Civil Rights
“A person’s sexual orientation is intrinsic to their being. A classification which discriminates between persons based on their innate nature would be violative of their fundamental rights.”
-Justice Indu Malhotra
Article 15 of the Indian Constitution prohibits discrimination against any citizen on the grounds of religion, race, caste, sex and place of birth. Justice Indu Malhotra observed that the word ‘sex’ does not only include the biological attributes but also the sexual orientation, identity and sexual behaviour which are personal in nature to an individual and any discrimination on the basis of intrinsic choices can lead to the violation of an individual’s right to privacy. It is this significant observation of comprehensiveness of the term ‘sex’ further ensures that the LGBTQ community is entitled to the fundamental rights and other constitutional rights in India.
As a result, article 15 enables the LGBTQ community to have access to public welfare services and state-funded programs including health and medical services which they were deprived off until now. According to a study conducted by The Indian Journal of Medical Research, men who have sex with men (MSM) are at a greater risk of getting sexually transmitted diseases, predominantly because of the stigma around same-sex behaviour resulting in single-encounter sexual relationships. Another reason is the perception that HIV is transmitted through vaginal sex and via sex workers, resulting in individuals engaging in alternate anal and oral sexual practices to avoid infection. It is this lack of awareness and the fear of discrimination that does not allow them to avail of their medical benefits. The state must sponsor awareness programs and ensure that no LGBTQ members are further denied medical services on discriminatory grounds.
“I am going to understand the verdict and if it follows, I am going to apply for a marriage certificate”, says Madhuri Sarode, a transgender living in Mumbai who had married Jay Rajnath Sharma, but had never got the marriage registered. Decriminalization of section 377 brings hopes for many such transgender couples to marry legally and live with dignity. Furthermore, it also enables the state to now make laws for the adoption of children by a transgender couple. They can now celebrate their love and settle as a family without being prosecuted, beaten and tortured by police for their choices. They are also empowered to move to the court if there is any violation of their fundamental rights or to claim any constitutional right which has still not been freed from the shackles of sexual orientation.
It is the duty of the state to bring about structural changes in the system and society to revive the LGBTQ community from oppression, make provision to provide them educational opportunities, employment opportunities so that they are not forced to beg, and to work towards framing an anti-discriminatory law against acts perpetrating social inequalities.
Social challenges
The SC judgment was welcomed and applauded significantly by the educated in the urban areas particularly the youth, which was evident by the series of tweets, hashtags, posts making rounds of social media, including mainstream media, in support of the LGBTQ community. However, within a day of the Supreme Court’s historic verdict on section 377, Muslim clerics and functionaries of the All India Muslim Personal Law Board came out in protest of the order terming homosexuality against religion and humanity. Amidst the arguments made in the court, there were claims in favour of the Trust God Ministries, that legalization of same-sex relations would destroy the family system, which is the bulwark of the Indian social structure. Also, we have public figures like Baba Ramdev who consider homosexuality as a disease. Now, it is this conservative mindset of the society that needs to be challenged and gradually changed in order to bring about reforms in the real sense.
We are supportive of the LGBTQ rights, but, how many of us really see them as equals? How many of us actually empathize with them as individuals and not sympathize them for being ‘different’? Are couples ready to accept their children as homosexuals? Will, we ever not have an iota of doubt or feel completely comfortable having a homosexual person in our social circle? These are the questions that we need to address at an individual level. The fear, the prejudices and the tendency to stigmatize every behaviour of an individual to a certain category of ‘good’, ‘bad’, ‘moral’, ‘immoral’ and ‘accepted’ or ‘unaccepted’ must not be of significance when it comes to an individual’s personal choices and inextricable right to life and liberty. The LGBTQ community struggles for this acceptance in the society as humans first, where they are can live with individuality and respect, just as the so-called ‘straight’ majority citizens of the country do; which indeed will require a long and gradual process of change. Alongside, it is the law and such historic verdicts as Right to Privacy and Decriminalization of section 377 of the Supreme Court of India, which always acts as a saviour; that can bring us one step closer to an inclusive society in its literal sense, where the mind of a homosexual is without fear and the head is held high with pride!
References
Couple hopes to register marriage. (2018, September 7). The Indian Express. p.3
HIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention. NCBI. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3284100/
Nair, S. (2018, September 7). Gateway to further reform. The Indian Express.p.10
What the judges ruled. (2018, September 7). The Indian Express.p.9
Image courtesy: Quartz India