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  • KANAK AGARWALA

Exploring the Impact of Section 377 on the LGBTQ Community

 By: Kanak Agarwala , Birla Global University 

ABSTRACT:

 

In 2018, a significant step forward was taken for LGBT individuals in India as consensual sexual acts between same-sex partners were decriminalized, marking a pivotal moment in legal recognition. However, this legal reform alone has not been adequate in challenging the deeply ingrained societal stereotypes and prejudices against the LGBT community. Despite the partial decriminalization of Section 377 by the Hon’ble Supreme Court in the Navtej Singh Johar case, non-consensual sexual acts still remain punishable under the same section.

Merely removing the legal barrier does not address the complex social and familial challenges that LGBT individuals continue to face. Discrimination and marginalization persist, with many experiencing alienations from both society and their own families. Despite the specific provision in the Indian Penal Code addressing same-sex attraction, societal attitudes and behaviours towards LGBT people remain largely unchanged.

This paper aims to shed light on the current situation of LGBT individuals in India and raise awareness about the need for broader societal acceptance and inclusion. It underscores that being LGBT is not abnormal or different, but rather a natural aspect of human diversity. Through an examination of various social realities and attitudes, this paper seeks to advocate for meaningful societal change that recognizes and respects the rights and dignity of LGBT individuals.

 

INTRODUCTION:

A "human being" refers to a member of the Homo sapiens species, encompassing individuals of all genders and ages who possess cognitive abilities beyond those of animals. It also often denotes a "natural person," an individual with their own distinct personality, as opposed to a legal entity. Thus, the term "human being" encompasses all individuals without discrimination based on sexual orientation. Article 14 of the Constitution of India guarantees equality before the law for all persons.

However, despite constitutional protections, the Indian Penal Code of 1860 included a specific provision criminalizing same-sex relations, which remained in force for 158 years. While the Supreme Court of India declared this provision unconstitutional in 2018, societal attitudes towards homosexuality have been slower to change. Many in Indian society still view homosexuality as sinful or consider it a mental illness.

In contrast, several countries such as Norway, Denmark, Finland, and Belgium have taken a firm stand against discrimination based on sexual orientation and have actively supported same-sex marriage. Despite this global trend, Indian society has been slower to accept consensual same-sex relationships or same-sex marriage.

This paper aims to explore the current status of LGBT individuals in Indian society by addressing the following questions:

1. Is homosexuality considered unnatural?

2. Does the inclusion of Section 377 in the Indian Penal Code infringe on the rights of LGBT individuals?

3. What are the factors contributing to homosexuality?

4. What are the social consequences faced by individuals who identify as homosexual?

5. What role has the judiciary played in decriminalizing Section 377?

6. What is the current societal landscape for LGBT individuals in India?

 

WHAT IS HOMOSEXUALITY?

 

Homosexuality refers to a sexual orientation where individuals are attracted to the same gender. The term "homo" denotes "same," while "sexuality" pertains to sexual orientation or behaviour. Thus, a homosexual person is someone who experiences attraction to individuals of the same sex, encompassing both men attracted to other men and women attracted to other women. Additionally, the LGBT acronym encompasses Lesbians, Gays, Bisexuals, and Transgender individuals.

A lesbian is a woman attracted to other women, while a gay man is attracted to other men. Bisexuality refers to attraction to both genders, meaning an individual is attracted to both men and women. Transgender individuals do not identify exclusively as male or female based on their gender identity. When individuals within the LGBT community are attracted to the same gender, they are described as homosexual.

Homosexuality is simply a sexual orientation and should not be viewed as a disease or mental problem, contrary to some misconceptions. When people perceive homosexuality as a personal choice or illness, it often leads to negative attitudes toward individuals who identify as gay, lesbian, or transgender.

Some view homosexuality as a social issue, prompting scholars across various disciplines—from anthropology to psychology, zoology to theology—to explore its origins. Research suggests that individuals who believe sexual orientation is innate tend to have more tolerant attitudes toward gay and lesbian individuals, whereas those who perceive it as a choice are often less accepting.

 

THE INDIAN PENAL CODE AND THE LGBT COMMUNITY:

Section 377 of the Indian Penal Code, in force since 1860, has been a tool of oppression against the LGBT community, leading to their persecution by both society and law enforcement. Crafted by Thomas Macaulay, this provision was inspired by the Buggery Act, which criminalized same-sex intercourse as unnatural and against divine will.

Originally enacted in 1533, the Buggery Act was later replaced by the Offences against Persons Act in 1828, broadening the scope of unnatural sexual activities. While primarily targeting rapists, this Act also encompassed homosexuals within its definition of unnatural sexual behaviour.

Section 377 penalizes acts deemed unnatural, defined as offenses against the order of nature. The concept of "order of nature" refers to occurrences considered normal and expected to happen without human intervention. According to this section, sexual intercourse between a man and a woman is considered natural, while other forms of carnal acts, such as anal or oral sex, are deemed unnatural.

Determining what constitutes natural or unnatural behaviour evolves over time. For instance, polygamy was once widely practiced and considered natural until the enactment of the Hindu Marriage Act in 1955, which aimed to abolish it. Similarly, societal perceptions and norms shift over time, leading to changes in what is considered natural or acceptable.

It is alarming that it took nearly 158 years to decriminalize consensual sexual activity between homosexuals under Section 377. This delay highlights the persistence of discriminatory attitudes and the struggle for the recognition of LGBT rights in Indian society.

 

FACTORS LEADING TOWARDS HOMOSEXUALITY:

In many cases, individuals who are well-versed in human rights and psychologists are better equipped to understand the mental state and behaviours of homosexuals. However, societal perceptions often lean towards viewing homosexuality as a mental disorder or an obsession with sexual activities. Some believe it stems from a lack of proper education during childhood. In reality, both internal and external factors contribute to homosexuality.

1)Internal Factors: These include biological and psychological factors, suggesting that homosexuality is innate and not a choice or lifestyle. Research indicates that positive attitudes towards homosexuality are linked to the belief that its origins are biological, while negative attitudes are associated with the belief that it is a personal choice. These beliefs influence social policies and behaviours.

2)External Factors: Besides internal factors, various external influences also play a role in shaping homosexuality. These factors include:

- Lack of masculinity: There's a misconception that men lacking traditional masculinity traits are homosexual. However, this assumption is incorrect. Such individuals may face societal rejection and may suffer from depression and low self-esteem, leading to questions about their sexuality.

- Lack of faith in opposite-sex relationships: Some individuals may turn to same-sex relationships due to negative experiences or trauma in opposite-sex relationships.

- Childhood trauma: Childhood sexual abuse by older individuals can lead to mental trauma and confusion about sexual identity, perpetuating the belief of being homosexual.

- Parental behaviour or rejection: Unequal treatment by parents, such as favouritism towards one gender over the other, can create feelings of insecurity and guilt, potentially contributing to the development of homosexuality.

THE CHALLENGES FACED BY HOMOSEXUALS:

Understanding the complex interplay of internal and external factors is crucial in addressing misconceptions and fostering acceptance and support for individuals within the LGBT community.

For individuals within the LGBT community, societal acceptance remains a distant reality, often accompanied by a multitude of challenges:

1. Marginalization: LGBT individuals frequently face marginalization, where society treats them as peripheral and refuses to accept them as equals. This social exclusion begins within the family and can lead to stigmatization and negative attitudes from the broader community. Many faces homelessness, with statistics showing a significant percentage of transgender adults experiencing housing instability.

2. Harassment and Torture: LGBT youth are commonly subjected to harassment and abuse, both in educational settings and in public spaces. Sexual violence rates are disproportionately high among LGBT individuals compared to heterosexual counterparts, leading to significant mental and physical trauma.

3. Rejection: Rejection is a pervasive experience for LGBT individuals, both from family members and society at large. Those who come out as gay or lesbian often face familial rejection and marginalization. Society's refusal to accept them exacerbates feelings of insecurity and self-doubt.

4. Homelessness: Many LGBT individuals face homelessness, with a significant percentage forced to live on the streets after being ostracized by their families. Domestic violence shelters may also refuse them shelter, leaving them vulnerable to exploitation and further hardships.

5. Mental Health Issues: The constant rejection and discrimination faced by LGBT individuals take a toll on their mental health. Depression and suicidal thoughts are common outcomes of the societal stigma and lack of acceptance they encounter.

 

ROLE OF JUDICIARY WITH REGARD TO DECRIMINALIZING SECTION 377:

 

The role of the Indian judiciary in decriminalizing Section 377 of the Indian Penal Code has been pivotal. Several landmark judgments, including those in the Naz Foundation cases and the National Legal Service Authority v. Union of India case, have recognized the rights of LGBT individuals. These judgments have affirmed the principles of equality, non-discrimination, and the right to privacy enshrined in the Indian Constitution.

Despite progress, challenges persist, and there is a continued need for legal protections and societal acceptance of the rights and dignity of LGBT individuals. The judiciary's role in upholding these rights and promoting inclusivity remains crucial in fostering a more equitable society.

The Navtej Singh Johar case marked a significant milestone in the fight for equality for the LGBT community in India. The petitioner argued that Section 377 of the Indian Penal Code, which criminalized consensual same-sex relations, violated fundamental rights such as the right to life, privacy, and equality guaranteed under the Indian Constitution. The respondents contended that Section 377 only dealt with defining an offense and its punishment, and therefore did not infringe on constitutional rights.

The five-judge bench unanimously declared Section 377 unconstitutional when applied to consensual sexual activity between two adults of the same sex. The court held that this provision discriminated against LGBT individuals based on their sexual orientation, violating constitutional articles pertaining to equality and freedom. By striking down Section 377, the court decriminalized consensual same-sex activity, affirming the rights of LGBT individuals to express their identity without fear of persecution.

In the case of Madhu Bala v. State of Uttarakhand & Ors., the Uttarakhand High Court further affirmed the rights of same-sex couples. The court emphasized that the right to liberty includes the right to choose a partner and cohabit together, regardless of gender. It clarified that consensual relationships between two adults of the same sex are not prohibited by law.

While these judicial interventions have been crucial in advancing LGBT rights, societal stigma and discrimination persist. True equality will only be achieved when society fully accepts and embraces LGBT individuals, recognizing that homosexuality is a natural sexual orientation, not a disease or choice. It is imperative to challenge and change outdated stereotypes and attitudes towards LGBT individuals to foster a more inclusive and accepting society.

 

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