On the margins with full equality still out of reach

Relevance: The LGBTQ+ community is one of the most vulnerable sections in India and mainstreaming them is a great challenge. 

Synopsis: 

The global LGBTQ+ community marched ahead after the 1970s. But in India, it was not the case. Despite the Constitution focus on liberation, the marginalised segments such as LGBTQ+ did not receive enough attention so far.  

What is section 377? 

• Section 377 of the Indian Penal Code criminalized homosexuality. This Section was introduced in 1861 during the British rule in India, modeled on the Buggery Act of 1533. 
• Navtej Singh Johar & Ors. vs Union of India (2018) case: The Supreme Court ruled that the criminalization of consensual homosexual sex, under Section 377 between adults was unconstitutional, irrational, indefensible, and manifestly arbitrary. 
• However, Section 377 remains in force for sex with minors, non-consensual sexual acts, and bestiality. 

Other significant judgements on Section 377: 

• Naz Foundation v. Govt. of NCT of Delhi [2009] is a landmark Indian case of the Delhi High Court. It held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights. 

• As a result of the ruling, homosexual acts between consenting adults are no longer illegal in India. 
• The court also held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class 

• Suresh Kumar Koushal vs. Naz Foundation [2013]: In this case, the SC overturned the previous judgment by Delhi HC 2009 and reinstated Section 377 of the Indian Penal Code. 

Outcomes after these Judgement: 

• These judgments have provided a launch pad for the LGBTQ+ jurisprudence and queer liberation movement in India. 
• Despite the judgments of the Supreme Court, full equality is still not provided to the LGBTQ+ community. 
• The Union of India has recently opposed any move to accord legal sanction to same-sex marriages. The government states that, decriminalisation of Section 377 does not automatically translate into a fundamental right for same sex couples to marry. 

Why India needs to allow Same Sex marriages? 

As of 2021, same-sex marriage is legally performed and recognised in 29 countries. Indian society and the state should synchronise themselves with changing trends. For example, the United Kingdom passed the “Alan Turing law” in 2017 to outlaw homosexual acts. 

Suggestions: 

• Eliminating the stigma associated with LGBTQ+ community through the mass media and the official channels. Further, School and university students too should be sensitised about the diversity of sexuality.  
• Amending Article 15: Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them. India should amend the article to include discrimination based on sexual orientation.   

• In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation. 

Read more:  

• Marriage Rights of the LGBTQIA+ community 
• Madras High Court guidelines for mainstreaming LGBTIQA+ community 
• Need to ban the Conversion therapy of the LGBTQIA+ community 

Source: The Hindu