Abrogation Of Section 377: Is There Any Change In People's Behavior?
The declaration of section 377 of IPC as unconstitutional was a long-awaited cry
for justice though the decision brought a ray of hope for the queer community as
a whole, the gest to realize their rights in the true spirit of the term liberty
and equality remain unfulfilled, this is attributed to the stereotypical
societal considerations of morality and ethics. Discrimination is not merely a
negative concept rather it's a negative mindset that cannot be resolved unless
there is a universal acceptance that 'Rights and liberties must not only be seen
to be given but rather be interested in the real sense of the term'.
It is with this objective the present research seeks to understand the various reasons behind the such discriminated treatment of the queer community and suggest ways in which the society can become inclusive towards adapting the right/centric approach thereby according them the liberty to appreciate themselves as the third gender (pillar of the society).
Introduction:
One of the most significant days for the LGBTQ community occurred on September 6, 2018, when the Supreme Court of India ruled that consensual homosexual activities between two people would no longer be considered a crime. Even though the Supreme Court overturned Section 377, the main question is still whether homosexuality is accepted by society. Are homosexuals have the same rights, recognition, and status in society as normal people do? The LGBTQ community is most concerned about how Indian society views homosexuals and whether repealing a law is enough to protect homosexuals' rights. This research paper addresses all of these concerns.
History:
"A person who is sexually attracted to people of the same sex is called a homosexual"[1]. Although homosexuality is not a modern concept, it has been prevalent in society for a very long time "A person who is sexually attracted to people of the same sex is called a homosexual e. In Valmiki's Ramayana, Lord Hanuman sees rakshasa women kissing and embracing women when he returns from Lanka after visiting Goddess Sita.
"The Krittivasa Ramayana also tells the story of King Bhagiratha, who was born of two women". India's acceptance of homoeroticism and homosexuality are highlighted by these two instances. Muslim literature also refers to homosexuality-not in Hindu texts- "where Babur expresses his attraction to a boy named Baburi in Kabul". Some examples of historical references to homosexuality include Babur's mention of him in his memoir and another "Sufi saint, Shah Hussain, claiming his love for a Hindu boy named Madho Lal in his works".[2]
Unnatural offenses are defined in Section 377 as follows: "Whoever 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 ten years, and shall also be liable to fine,"[3] which means that penetration is sufficient to constitute the carnal intercourse necessary to the offense that is described in this section.
"This section was drafted in 1835 by Thomas Macaulay, president of the Indian Law Commission[4], but it was only implemented in 1860 after the Sepoy Mutiny (First War of Independence) in 1857. This British India law was modeled after the Buggery Act 1533, which was enacted during King Henry VIII's reign". This law defined "buggery" as a sexual act that is not natural and goes against God's and man's will. As a result, this made anal penetration, bestiality, and homosexuality, in general, a crime. After the Act was repealed in 1828, the Offences Against the Person Act of 1828 took its place.
This Act made it easier to prosecute rapists and homosexuals as well as broadened the definition of unnatural sexual acts Segment 377 of the Indian Punitive Code is remembered to have been roused by this demonstration. The British would later repeal this act and replace it with the Sexual Offences Act 1967, which eventually made homosexuality illegal in the UK. It is interesting to note that the Indian government was still adhering to this antiquated law, which was enacted in 1860 and was written in the 1830s, even though the British government has now made same-sex marriage legal.[5]
The issue was first brought up by the "Naz Foundation and the AIDS bedhbav virodh Andolan in the case Naz foundation and AIDS, bedhbav virodh Andolan vs. Government of Delhi NTC of India"[6] arguing against section 377's constitutionality[7].
In that case, the Delhi high court ruled in favor of decriminalizing homosexuality. The court had held that section 377 of the Indian Penal Code was violating the rights granted to its citizens by the constitution under the LGBTQ+ community, which is an abbreviation for lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual, and more, has achieved an important victory against society's discrimination in "Navtej Singh Johar v. Union of India "[8], marking the end of the long-standing colonial law and a celebrated conclusion to the long struggle for justice[9].
Need For Change In Society:
As we already know, homosexuality is common in Indian culture, and LGBTQ+ themes and topics have been discussed in ancient mythology and depicted in the designs of historical monuments for centuries. India's history has always included it. Why then are we still unable to accept it? This is primarily because people are unwilling to accept the truth about society.
Homosexuality is still taboo for a lot of people in Indian society, even among the young, who frequently use the word "hijra" as a curse word to show how much they respect homosexuals. Assuming that the nation's youth will be intelligent enough to comprehend the taboos of society and work to eradicate them is a dangerous assumption for any society. "According to Mint and market researcher YouGov surveys[10], less than half of India's urban youth approve of same-sex relationships".
It also dispels the misperception that this kind of discrimination only occurs in urban areas, as the survey reveals that people living in the major metropolises are reluctant to accept relationships between people of the same sex, particularly in India's southern regions. The survey tells us that people for whom religion is extremely unimportant are more accepting of homosexuality than youth for whom religion is extremely important. In addition, the survey reveals that among India's urban young people between the ages of 18 and 38, those with more religious predispositions are more prejudiced against homosexuality than those with less religious predispositions.
Additionally, this survey revealed that males and females differ in their acceptance of homosexuality in society, it has been seen in the survey that homosexuality is more accepted by women than by men. The survey reveals that nearly 10 percentage points more women than men support same-sex relationships. This is also consistent with global trends: According to research, homosexuality is generally accepted more readily by women.
Homosexuality has been a taboo in Indian society as we all know and by the survey of the people, it is very evident. But for such societal perception, to some extent a certain class of transgenders, commonly called ‘Hijra' are also responsible, as we saw them in many places where they demand money in exchange for blessings, which is believed by the common people to be good for them, these ‘hijras' visits houses in which marriage for a child is born, due to such thinking ‘hijras' are often called by the family members to receive their blessings. Due to the increase in the use of social media platforms various rumors and falsehoods are circulated in society, there was a post on Facebook that states that if we take blessings of ‘hijras' in exchange for money, then all of our stalled work will be completed, such belief of the people misdirect the youth of the society as they develop certain understanding, which mixes up hijras with gay and lesbians. ‘hijras' usually seen in the traffic circles, local trains, especially of Mumbai local trains, where they beg money by sexually assaulting males in trains, they also make small children be a part of this business which ultimately affect the life of such children.
All this behavior of ‘Hijras' develop an ill repute for ‘Hijras' and the people who are unable to distinguish between hijras, gay, and lesbians often find them the same and people judge others by the behavior of another. Some youth shared their opinion about homosexuals, they say that they feel uncomfortable when they see ‘Hijras', and they tend to change their way because of the preconceived notion, people think that if they pass by the ‘hijras', they will demand money or touch people to gain money from the people. One of the experiences shared by a student of a college in Bengaluru where one ‘hijra' who used to sit near the temple, touch students and sexually assault them and demand money from them.
This portrays a negative image of the homosexual community as a whole, but when the students were asked about the homosexual community, they said that they are not against homosexuals and believed that homosexuals as a part of nature and they wanted that homosexuals should be recognized in the society as a third gender, but students are against the behavior of some homosexuals who just wear sarees and demand money from them, Not just it only create uncomfortableness, it also creates a sense of fear among the people because of the belief that has been developed by the parents and society during their childhood that if they do not pay to ‘hijras', they will be cursed and have to bear the consequences.
It has been observed by the people's reaction that people are more accepting of homosexuality when it is not related to them, but if one of the family members of a particular individual wants to accept his or her identity as homosexual or wants to marry another person of the same gender, then people react to this decision is just the opposite, they do not homosexuals in their house but they accept homosexual in the society.
Although the findings of the survey indicate that there is a significant gap between the acceptance of homosexuality by society and its legal sanction in India, they also indicate that the situation is changing, as the younger respondents of the survey expressed views on homosexuality that were significantly more tolerant than those of their older cohorts. With the modernization and advancement in science, we can see a change in the mindset of some people, specifically youths, which hold different ideologies from the stereotypical perception about homosexuals. Many youths believe that homosexuals are part of nature just like males and females and they should be accepted in the same way as males and females are accepted.
Although today's Indian teenagers are more accepting of homosexuality than ever before, the LGBTQ community continues to struggle to recognize their sexual orientation and the right to freely express their gender preferences within the confines of their homes, schools, and families[11]. In the urban Indian region, the situation for gay men is more modern than for transgender people or lesbians, which has increased awareness of LGTBQ rights. Studies show that even in contemporary metropolitan India, one of the essential variables in the slander of homosexuality is the response of one's relatives. This is another reason for the indifference. Because of parental attitudes toward homosexuality and stigma, LGBTQ people are afraid to come out and express their identity.
The majority of LGBTQ individuals are not accepted by family unless they agree to act like heterosexuals. Their mental health deteriorates due to a lack of family support, and the pressure to conform frequently causes depression, suicidal ideation, and psychosomatic diseases. Parents keep homosexuality-related questions and discussions under wraps, despite their best efforts to be accepting. These fundamental beliefs originate in childhood when children are instructed to "behave," or else hijra or eunuchs will come and take them away. They have to deal with stares that don't like them, not being allowed in public places, and being linked to prostitution. Parents also don't want their kids to ask questions about homosexuals, so they tend to steer clear of the subject. Parents are more likely to avoid the topic rather than educate their children about homosexuals as a social group. Cruelty against the LGBTQ community has been prevalent in their homes. Cases of honor killings and marrying their Homosexuals children to heterosexuals to avoid the shame of having a homosexual child are very common in society, leading LGBTQ community members to commit suicide to get away from the cruelty they have to face in society.
This demonstrates society's mentality. In a society where homosexuals are frequently advocated for medical treatment, homosexuality is regarded as a disease. The individual's family members are the first to learn of that. Thinking as though you're gay? "I shouldn't have slept next to you"[12]; what if you find me attractive or if I stay with you, I'll also become homosexual? Even educated people feel the same way. It's not better for transgender people. Fearing that transgender people might become "infected" with a disease, some doctors refuse to treat them. Another pressing issue in today's society is transphobia. More than three hundred doctors were interviewed for a study by "Stanford and the Civilian Welfare Foundation, a non-profit in Kolkata"[13], to check for bias.
This study reveals society's prejudices and that "doctors" find it difficult to believe that transgender people get raped and refuse to prescribe anti-HIV medication to them (even though they are a high-risk group for HIV). Vyjayanti Vasanta Mogli, an Indian transgender woman, has shared her experience, which will help us comprehend the entire scenario She says that the environment was like a prison with high walls and electric fences, where she was treated like a criminal and her family made her go to a psychiatric hospital for "corrective therapy." The absence of family support is devastating given our society's rigid social structure.
The expression "blood is thicker than water" is familiar to us. We won't bear in mind that the complete phrase reads. "The blood of the covenant is thicker than the water of the uterus," implying that the bonds you forge on your own are much stronger than the ones you were given. We can make your circle of relatives value you as you're. Performance creator Bidisha Mohanta concurs that the community was shown that we tend to, as people, area unit occupancy in the proper direction by the reading of Section 377. However, it's solely the start.
The law has been modified, however, hate crimes against the community haven't disappeared. It appears as if there's a perception that LGBTQ+ folks are unit antigens. LGBTQ community has to face harassment in the workplace also, earlier they were not allowed to work but after some change in mentality and law, they were allowed to work the hostile behavior of colleagues and unawareness of what the LGBTQ community is led to harassment at workplace. When homosexuality was decriminalized by the apex court there were various questions among the people. Some of the questions were whether homosexuality is a disease, and the answer to that is "no" as homosexuality is just a way of living, even the Indian Psychiatric Society confirmed that homosexuality is not a disease.
Another misconception developed among the people is that after the decision of the court, there will be an increase in the number of homosexuals in the country, which is also false as no one can become homosexual by their choice, whether they are homosexuals or not, it is just that those people who used to hide their sexual identity will come up and express their identity, one person shared his experience where he was a roommate of a homosexual in the boy's hostel where they are preparing for the NEET examination and when they departed from the hostel after completion of the course his homosexual friend tells him about the other people who are gay and bisexual, in the batch of 150 students 12 of them are gay and bisexuals, these are those people who do not came up and tell the world about their sexual identity.
Some people have tried to mock these homosexuals by tagging them on the post of social media and making fun of them, situation and thinking do not change within a day or by just passing or decriminalizing a law, there should be a change in the mindset of the people which would ultimately change the societal view toward LGBTQ community. Laws and Acts which are enforced in India do not recognize the LGBTQ community, like Hindu Marriage Act 1955 which does not allow same-sex marriage.
Traditional Islamic law prohibits homosexual acts and imposes a variety of penalties, including the death penalty[14]. Also, various crimes are not gender neutral like laws related to rape which only focused on women and does not consider man and homosexuals, ultimately hampering their rights. LGBTQ community members are more prone to domestic violence as they are not accepted by their own families, but this community is not protected by the Domestic Violence Act, of 2005 as this act only recognize minor and women as a victim of domestic violence.
Parliament 2019 passed the Transgender (Protection and Rights) Act, to define the punishment for the offense of violence, rape, and abuse against transgender people. But this Act contains various problems or shortcomings, to get a certificate of identity as a transgender person, a person has to apply to the district magistrate, neglecting non-binary and gender-neutral people and also hindering self-determination.
Lack of awareness among lawyers and judges, also the lack of LGBTQ judges and lawyers in the judiciary system affected the whole purpose of this act.[15] Representation of LGBTQ community members on television, movies, and web series often does not portrays the true picture, many of them are just filled with stereotypical believes and portrays gay men as feminine and weak character in these shows.
All these shows, movies, and plays are seen by many people, of various age groups, such depiction of them creates a false image of LGBTQ community members among the common people which hurts the sentiments of LGBTQ community members. We should cause a threat to the materials of society also, a widespread thought among Indian families is, that the third gender is a Western thought that's destroying India's ancient culture. Despite its lot of refined manifestations, biphobia is very regressive. Comments like "You're simply confused," "This is simply a part," and "You're widening your horizons to spice things up" area unit among the foremost insulting. are completely pitiful.
A person United Nations agency is bisexual might already be in a very state of mental turmoil as a result of they do not assume they're "gay enough" or "straight enough''. Hearing such statements causes them to become enraged, depressed, and hostile inside, which may prevent them from pursuing romantic relationships. The known yoga guru, Ramdev's statement that sex is simply a nasty addiction that may be cured by yoga may facilitate the North American nation's perceive society's outlook.
He further says, "Homosexuality is not genetic, and if our elders were homosexuals, we wouldn't be born.". Thus, it is out of place. Baba Ramdev believes that yoga will treat sexual activity, but he does not reveal the asanas that would facilitate this kind of treatment.[16] Sadguru, a renowned yogi and the founder of the Isha Foundation called the LGBTQ community a part of the campaign, where individuals defy nature.
He goes on to explain that the "campaign" is spreading across the globe as a result of them sharing their experiences. KM Shaji leader of the Indian Union Muslim League (IUML) called the LGBTQ community a "shame" and he also referred to them as the "worst kind of people". He said, " LGBTQ sounds something important, but those are uncouth local activities. They are the worst humans. They are projecting it as colorful, but the term itself is dangerous, it creates anarchy in society. Deciding one's gender after growing up is just silly."
He blamed the Kerala government for creating confusion about the third gender. He said that he only believes in two genders and nature also does so and this confusion about the third gender, destroy the religious community's faith, belief, and culture. He further added that "LGBTQ are the worst kinds of people, even this term is dangerous.
There are many ways to solve this hormonal disorder including counseling."[17] Homosexuals are also adversely laid low with these statements from such an outstanding temperament with an oversized following. Not just all leaders and celebrities are like that, many leaders came in support of the LGBTQ community, one of the is Theman Bhagwat, the chief of Rashtriya Swayamsevak Sangh (RSS), He said "People with such proclivities have always been there; for as long as humans have existed... This is biological, a mode of life. We want them to have their own private space and to feel that they, too, are a part of society. This is such a simple issue. We will have to promote this view because all other ways of resolving it will be futile".
He also cited Hindu scriptures and mythology and said, "Without much hullabaloo, we have found a way with a humane approach to provide them social acceptance". Such support from such a strong leader will help the LGBTQ community to get recognition in society[18]. We should work toward the LGBTQ+ community's growth as a society and society should adopt an inclusive outlook. Homosexuality ought to be instructed to kids in faculties. Since it's overdue that we start to acknowledge our privilege, use gender-neutral language, and educate ourselves so this society will embrace the spread of affection form.
Legal Provision:
The High Court of Delhi in the case "Naz Foundation v. Govt."[19] highlighted the primary aspect of declaring section 377 of the Indian Penal Code unconstitutional. of the NCT of Delhi, in which The Naz Foundation, the petitioner, argued that "Section 377 of the Indian Penal Code" clearly violates the sacred Fundamental Rights enshrined in "Part III of the Indian Constitution", rendering it unconstitutional.
They argued that the discrimination against these sexual minorities was seriously infringing on Article 14's right to equality.[20] Additionally, it was argued that sexual relationships were extremely private matters. Given that Article 21 of the Constitution guarantees everyone the right to life, including the right to privacy, was violated by state interference in such a sensitive issue. There was a secondary effect of this kind of discrimination against the LGBTQ community because of their unusual sexual orientation. It demonstrated a clear violation of "Article 15(1), which prohibits state discrimination based on "sex."
Additionally, the petitioners argued that Article 19 violated the victims' fundamental rights because they were denied "the freedom to freely express their sexual preferences and to move freely to engage in any kind of homosexual behavior". The highly acclaimed judgment of the Delhi High Court came after extensive research regarding the interpretation of Section 377.
The Court became aware of the problem of homosexuals being harassed in society and declared that Section 377 violated "Article 14, 15, 19, and 21 of the Constitution" insofar as it attempted to make private sexual activities with consenting adults illegal. The Court also realized that Section 377 has only been used to protect victims from any kind of forced or unnatural sexual activity up to this point.
Therefore, it would be a misuse of the Section to criminalize sexual relations and activities between consenting homosexual adults. "The provisions of Section 377 IPC will continue to apply to penal non-vaginal sex involving minors and non-consensual penile non-vaginal sex, the Court stated''. Then comes up the landmark decision known as "Navtej Johar or Navtej Singh Johar v. Union of India" which decriminalized homosexuality in India. Multiple Public Interest Litigation brought by various LGBTQ+ community groups resulted in the "Supreme Court of India's" decision.
Section 377, which criminalized sex between two consenting adults, was struck down by the Bench. The provision that makes non-consensual interactions with children or animals illegal was upheld by the Court. Section 377 violates "Articles 14, 15, 16, and 19 1 (a) of the Indian Constitution, according to the Supreme Court". It acknowledged that everyone regardless of their sexual orientation or gender identity has the "right to live in dignity, exercise autonomy, and maintain their personal and private lives" without interference from the state.[21]
Judicial Pronouncement:
To protect the rights of homosexuals various national and international initiatives have been made to curb discrimination that has been faced by the LGBTQ+ community. Numerous human rights breaches have been committed against people because of their sexual orientation and gender identity have been documented by the UN office for human rights. In a series of resolutions, "The United Nations General Assembly has called on states to ensure the protection of the right to life of all persons under their jurisdiction" and to conduct thorough and prompt investigations of all murders, including those that were motivated by the victim's sexual orientation and gender identity[22]. Restrictions on the exercise of rights to freedom of association and assembly, restrictions on free speech, and discriminatory legislation are all examples of discrimination.
In June 2011, the United Nations Human Rights Council became the first UN intergovernmental body to adopt a comprehensive resolution on human rights, sexual orientation, and gender identity[23]. Resolution 17/19 mandated a study on the scope and extent of these violations as well as the steps needed to address them. In it, the Council expressed its "grave concern" about people being targeted for violence and discrimination based on their sexual orientation and gender identity.
In December 2011, "the Office of the High Commissioner for Human Rights" released the requested study, which pointed to a pattern of discrimination and violence against people based on their sexual orientation and gender identity[24]. In March 2012, a panel discussion based on its findings and recommendations was held at the Council.
The United Nations had not previously held a formal intergovernmental discussion on the subject. The core legal obligations of States concerning protecting the human rights of LGBTQ people as defined by international law is to "protect individuals from homophobic and transphobic violence and prevent torture and cruel, inhuman, and degrading treatment, Repeal laws criminalizing homosexuality including all legislation that criminalizes private sexual conduct between consenting adults, Prohibit discrimination based on sexual orientation and gender identity, Promote a culture of equality and diversity that encompasses respect for the rights of LGBTQ people and many more"[25].
At the national level, the Supreme Court of India has correctly interpreted "Section 377 of the Indian Penal Code", which stipulates that "anyone who violates the natural order by having sexual relations with a man, woman, or animal is guilty of a crime". The court hasn't taken the entire provision out of the law; rather, it has read it down so that only the part of it that used to punish people even for consensual carnal intercourse (including carnal intercourse between homosexual adults) has been changed. Penile-non-vaginal intercourse between adults without consent and between minors is still a criminal offense.
The dignity of the" Golden Triangle of the Constitution -Articles 14, 19, and 21"-is unquestionably upheld by the Supreme Court of India by all constitutional mandates. The court has rightly upheld that an individual's sexual orientation is an important part of their dignity. According to "Article 15 of our constitution", which states that "The state should not discriminate among people based on caste, creed, religion, sex, etc.," the drafters of our constitution had no intention of encouraging discrimination among the people. Sexual orientation-based discrimination is also prohibited because the term "sex" is used in this context.[26]
Comparative Analysis:
Some laws make homosexuality illegal in 69 countries. The majority of them are located in South Asia, Africa, and the Middle East. Nonetheless, India was on the list before its most recent decision. According to the report, homosexuality still carries the possibility of execution in eight nations. According to Ilga, there has been a shift in the trend toward decriminalizing acts of the same sex. At the moment, 28 nations recognize same-sex marriages, and 34 others at least partially recognize same-sex partnerships. "81 nations had laws against sexual orientation-based workplace discrimination as of December 2020". 20 years ago there were only 15 countries.
"In 2000, the Netherlands became the first nation to legalize same-sex marriage when the Dutch parliament passed a landmark bill allowing the practice by a three-to-one margin". Other nations have also taken the initiative for the LGBTQ+ community. The law permitted same-sex couples to wed, divorce, and adopt children. "A marriage can be contracted by two people of different or the same sex" was changed in a single sentence by the legislation to reflect the new language in the existing civil marriage statute.
The first nation to legalize homosexual marriage was the Netherlands in 2001, Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2008), Sweden (2009), Iceland (2010), Portugal (2010), Argentina (2010), Denmark (2012), New Zealand (2013), Uruguay (2013), France (2013), Brazil (2013), England and Wales (2013), Scotland (2014), Luxembourg (2014), Ireland (2015), Finland (2015), Greenland (2015), the United States (2015), Colombia (2016), Australia (2017), Germany (2017), Malta (2017), Austria (2019), Ecuador (2019), Taiwan (2019), and Northern Ireland (2019)" and at last "Costa Rica became the first nation in Central America to legalize same-sex marriage in May 2020. In 2018, the nation's highest court declared the ban on same-sex marriage to be unconstitutional and stated that it would be lifted in 18 months unless the legislature took action before then, which it did not[27].
Whereas as compared to other countries, India in the landmark case of "Navtej Singh Johar v. Union of India", decriminalized homosexuality and addressed several important constitutional questions. Transgender Indians were granted official minority status and legal recognition as legal third gender by India's Supreme Court, which took proactive action to protect them from discrimination.
But just legalizing homosexuality is not enough as we can see instances where the rights of homosexuals have been hampered, US and UK saw some clawback of rights regarding gender identity and sexual orientation[28]. Although LGBTQ+ rights have long been a major battleground in the United States, U.S. leadership has played a significant role in defending them around the world.
However, the Donald J. Trump administration halted or even reversed during the administration of Barack Obama, a rapid expansion of protections in the United States, particularly in health care and military service. Additionally, in U.S. foreign policy, Trump gave LGBTQ+ rights advocacy less weight. Trump's regulations, which allow recipients of grants from the Department of Health and Human Services to discriminate against LGBTQ+ individuals, have an impact on HIV prevention, foster care, and adoption services.
Even removing references to LGBTQ+ people from policy guidance, Trump's foreign policy agenda deemphasized the inclusion and advocacy that were at the heart of diplomacy during the Obama administration. We can also use Canada as an example because it is home to approximately one million LGBTQ people,[29] with younger people making up a disproportionately large portion of the LGBTQ population.
The report, however, also addresses dangers faced by LGBTQ Canadians, such as the recent rise in hate crimes committed against individuals because of their sexual orientation. While many trends point to an expanding LGBTQ population in Canada, "The highest number of such incidents since 2009 was 263 in 2019, a 41% increase over the previous year"[30]. With marriage equality and legal protections against discrimination, South Africa is leading the way in the fight for LGBTQ+ rights on the African continent.
It was the world's first nation to legalize same-sex marriage and the fifth nation to protect against sexual orientation-based discrimination. But the problem is that Civil servants can refuse to solemnize civil unions under the Civil Union Act if they object to same-sex relationships based on their "conscience, religion [or] belief. Making it difficult for same-sex couples who want to get married in a religious country''.
While an amendment to the bill will address some of the issues that the LGBTQ+ community faces, it will not address the deep-seated tendency in South Africa to marginalize gay people.[31] In the case of India, the legislature came up with the "Transgender Persons (Protection of Rights) Bill, 2019" which was enacted to protect the rights of the Transgender Community by prohibiting discrimination against them in employment, education, healthcare, as well as access to public or private facilities. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanizes their body and identity.
Despite the decriminalization of homosexuality, India's laws continue to be discriminatory against the LGBTQ community in several ways. This is because there is a significant gap between the development of LGBTQ laws in India by the legislature and the courts.
As a result, despite the "Supreme Court of India's" landmark decisions in "National Legal Services Authority v. Union of India, Navtej Singh Johar v. UOI", establishing a set of fundamental human rights for the queer and non-binary community, the legislature has not kept up with the latest developments.
Therefore, even though same-sex couples now have the legal right to cohabit and conduct their personal affairs without fear of persecution, same-sex couples continue to be denied equality of treatment in several areas. As a result, it is necessary to carry on the discussion and talk about the various laws that continue to discriminate against LGBTQ+ people Anti-discrimination laws include, among other things, denying rights to adoption and surrogacy and not recognizing same-sex marriages.
Conclusion:
After numerous attempts made to establish the status of homosexuality in India, we can conclude that we must comprehend the primary source of contention regarding homosexuality. Just enacting laws or abolition of any certain law will not make any impact on society, we will have to work on moral grounds. Society tends to neglect the idea of the third gender and also neglects the right to privacy that the constitution grants to them.
The view that society holds towards them is derogatory. However, it is essential to keep in mind that sexual orientation, as a biological function, cannot have a significant moral impact. Because they are influenced by society, a person who is not biologically homosexual cannot engage in homosexual activities.
Instead, if we maintain a liberal perspective that values gender equality and the rights of all genders, we will be able to respect the LGBTQ community's rights. Our way of life should not change as a result; Instead, it ought to imply that we cultivate and mature into responsible citizens who can spread out their lives, enabling every right-thinking member of society to lead an unaffected life.
It all depends on how strong a person's personality is. We ought to be able to prioritize our morals without showing disdain for the various members of the community. We ought to permit ourselves to respect the diversity of the human race, which may manifest itself in the form of diverse festivals, cuisines, cultures, and, more recently, sexual orientations. The strength of our character, in conjunction with our biological matrix, determines whether or not we in still such a variant in ourselves.
However, the LGBTQ community ought to have the same right to accept or reject this variant as we do. It's possible that what society considers normal is a deviation from them. Although mocking homosexuals and viewing them as a disease may be commonplace in society, these attitudes will significantly negatively impact the mental health of members of the homosexual community. In society, there shouldn't be any kind of discrimination against the LGBTQ community.
People should not feel pity or sympathy for them, People should see them as a normal member of society, and we should make them feel included in society, their sexuality is not a condition that has to be normal or abnormal, that is just a biological factor and it should not be considered as a mental problem.
Homosexuality is just about sexuality in which there is no role of mental stability or instability and it is not even related to something like paranormal activity, which shouldn't be accepted by society. Every human being has a right to choose their gender and we should accept this right of people and should let them live their life as they want to.
Education is the best way to bring change to society. The problem related to unawareness of the LGBTQ community can be solved by including this topic in our education system. Educating students about their existence in our history and how members of the LGBTQ community are alike us and that it is just a biological concept and not related to any mental disorder.
Even the LGBTQ community should understand that these changes may take some time because just decriminalizing one section will not bring change in the mindset of the people, it will take some time till then LGBTQ people should remain patient, and give people some space and time to accept the fact that LGBTQ people are no alien, they are just part of our society. Society as well as the legislature should maintain a liberal, strong, and healthy outlook for every member of society.
End-Notes:
It is with this objective the present research seeks to understand the various reasons behind the such discriminated treatment of the queer community and suggest ways in which the society can become inclusive towards adapting the right/centric approach thereby according them the liberty to appreciate themselves as the third gender (pillar of the society).
Introduction:
One of the most significant days for the LGBTQ community occurred on September 6, 2018, when the Supreme Court of India ruled that consensual homosexual activities between two people would no longer be considered a crime. Even though the Supreme Court overturned Section 377, the main question is still whether homosexuality is accepted by society. Are homosexuals have the same rights, recognition, and status in society as normal people do? The LGBTQ community is most concerned about how Indian society views homosexuals and whether repealing a law is enough to protect homosexuals' rights. This research paper addresses all of these concerns.
History:
"A person who is sexually attracted to people of the same sex is called a homosexual"[1]. Although homosexuality is not a modern concept, it has been prevalent in society for a very long time "A person who is sexually attracted to people of the same sex is called a homosexual e. In Valmiki's Ramayana, Lord Hanuman sees rakshasa women kissing and embracing women when he returns from Lanka after visiting Goddess Sita.
"The Krittivasa Ramayana also tells the story of King Bhagiratha, who was born of two women". India's acceptance of homoeroticism and homosexuality are highlighted by these two instances. Muslim literature also refers to homosexuality-not in Hindu texts- "where Babur expresses his attraction to a boy named Baburi in Kabul". Some examples of historical references to homosexuality include Babur's mention of him in his memoir and another "Sufi saint, Shah Hussain, claiming his love for a Hindu boy named Madho Lal in his works".[2]
Unnatural offenses are defined in Section 377 as follows: "Whoever 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 ten years, and shall also be liable to fine,"[3] which means that penetration is sufficient to constitute the carnal intercourse necessary to the offense that is described in this section.
"This section was drafted in 1835 by Thomas Macaulay, president of the Indian Law Commission[4], but it was only implemented in 1860 after the Sepoy Mutiny (First War of Independence) in 1857. This British India law was modeled after the Buggery Act 1533, which was enacted during King Henry VIII's reign". This law defined "buggery" as a sexual act that is not natural and goes against God's and man's will. As a result, this made anal penetration, bestiality, and homosexuality, in general, a crime. After the Act was repealed in 1828, the Offences Against the Person Act of 1828 took its place.
This Act made it easier to prosecute rapists and homosexuals as well as broadened the definition of unnatural sexual acts Segment 377 of the Indian Punitive Code is remembered to have been roused by this demonstration. The British would later repeal this act and replace it with the Sexual Offences Act 1967, which eventually made homosexuality illegal in the UK. It is interesting to note that the Indian government was still adhering to this antiquated law, which was enacted in 1860 and was written in the 1830s, even though the British government has now made same-sex marriage legal.[5]
The issue was first brought up by the "Naz Foundation and the AIDS bedhbav virodh Andolan in the case Naz foundation and AIDS, bedhbav virodh Andolan vs. Government of Delhi NTC of India"[6] arguing against section 377's constitutionality[7].
In that case, the Delhi high court ruled in favor of decriminalizing homosexuality. The court had held that section 377 of the Indian Penal Code was violating the rights granted to its citizens by the constitution under the LGBTQ+ community, which is an abbreviation for lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual, and more, has achieved an important victory against society's discrimination in "Navtej Singh Johar v. Union of India "[8], marking the end of the long-standing colonial law and a celebrated conclusion to the long struggle for justice[9].
Need For Change In Society:
As we already know, homosexuality is common in Indian culture, and LGBTQ+ themes and topics have been discussed in ancient mythology and depicted in the designs of historical monuments for centuries. India's history has always included it. Why then are we still unable to accept it? This is primarily because people are unwilling to accept the truth about society.
Homosexuality is still taboo for a lot of people in Indian society, even among the young, who frequently use the word "hijra" as a curse word to show how much they respect homosexuals. Assuming that the nation's youth will be intelligent enough to comprehend the taboos of society and work to eradicate them is a dangerous assumption for any society. "According to Mint and market researcher YouGov surveys[10], less than half of India's urban youth approve of same-sex relationships".
It also dispels the misperception that this kind of discrimination only occurs in urban areas, as the survey reveals that people living in the major metropolises are reluctant to accept relationships between people of the same sex, particularly in India's southern regions. The survey tells us that people for whom religion is extremely unimportant are more accepting of homosexuality than youth for whom religion is extremely important. In addition, the survey reveals that among India's urban young people between the ages of 18 and 38, those with more religious predispositions are more prejudiced against homosexuality than those with less religious predispositions.
Additionally, this survey revealed that males and females differ in their acceptance of homosexuality in society, it has been seen in the survey that homosexuality is more accepted by women than by men. The survey reveals that nearly 10 percentage points more women than men support same-sex relationships. This is also consistent with global trends: According to research, homosexuality is generally accepted more readily by women.
Homosexuality has been a taboo in Indian society as we all know and by the survey of the people, it is very evident. But for such societal perception, to some extent a certain class of transgenders, commonly called ‘Hijra' are also responsible, as we saw them in many places where they demand money in exchange for blessings, which is believed by the common people to be good for them, these ‘hijras' visits houses in which marriage for a child is born, due to such thinking ‘hijras' are often called by the family members to receive their blessings. Due to the increase in the use of social media platforms various rumors and falsehoods are circulated in society, there was a post on Facebook that states that if we take blessings of ‘hijras' in exchange for money, then all of our stalled work will be completed, such belief of the people misdirect the youth of the society as they develop certain understanding, which mixes up hijras with gay and lesbians. ‘hijras' usually seen in the traffic circles, local trains, especially of Mumbai local trains, where they beg money by sexually assaulting males in trains, they also make small children be a part of this business which ultimately affect the life of such children.
All this behavior of ‘Hijras' develop an ill repute for ‘Hijras' and the people who are unable to distinguish between hijras, gay, and lesbians often find them the same and people judge others by the behavior of another. Some youth shared their opinion about homosexuals, they say that they feel uncomfortable when they see ‘Hijras', and they tend to change their way because of the preconceived notion, people think that if they pass by the ‘hijras', they will demand money or touch people to gain money from the people. One of the experiences shared by a student of a college in Bengaluru where one ‘hijra' who used to sit near the temple, touch students and sexually assault them and demand money from them.
This portrays a negative image of the homosexual community as a whole, but when the students were asked about the homosexual community, they said that they are not against homosexuals and believed that homosexuals as a part of nature and they wanted that homosexuals should be recognized in the society as a third gender, but students are against the behavior of some homosexuals who just wear sarees and demand money from them, Not just it only create uncomfortableness, it also creates a sense of fear among the people because of the belief that has been developed by the parents and society during their childhood that if they do not pay to ‘hijras', they will be cursed and have to bear the consequences.
It has been observed by the people's reaction that people are more accepting of homosexuality when it is not related to them, but if one of the family members of a particular individual wants to accept his or her identity as homosexual or wants to marry another person of the same gender, then people react to this decision is just the opposite, they do not homosexuals in their house but they accept homosexual in the society.
Although the findings of the survey indicate that there is a significant gap between the acceptance of homosexuality by society and its legal sanction in India, they also indicate that the situation is changing, as the younger respondents of the survey expressed views on homosexuality that were significantly more tolerant than those of their older cohorts. With the modernization and advancement in science, we can see a change in the mindset of some people, specifically youths, which hold different ideologies from the stereotypical perception about homosexuals. Many youths believe that homosexuals are part of nature just like males and females and they should be accepted in the same way as males and females are accepted.
Although today's Indian teenagers are more accepting of homosexuality than ever before, the LGBTQ community continues to struggle to recognize their sexual orientation and the right to freely express their gender preferences within the confines of their homes, schools, and families[11]. In the urban Indian region, the situation for gay men is more modern than for transgender people or lesbians, which has increased awareness of LGTBQ rights. Studies show that even in contemporary metropolitan India, one of the essential variables in the slander of homosexuality is the response of one's relatives. This is another reason for the indifference. Because of parental attitudes toward homosexuality and stigma, LGBTQ people are afraid to come out and express their identity.
The majority of LGBTQ individuals are not accepted by family unless they agree to act like heterosexuals. Their mental health deteriorates due to a lack of family support, and the pressure to conform frequently causes depression, suicidal ideation, and psychosomatic diseases. Parents keep homosexuality-related questions and discussions under wraps, despite their best efforts to be accepting. These fundamental beliefs originate in childhood when children are instructed to "behave," or else hijra or eunuchs will come and take them away. They have to deal with stares that don't like them, not being allowed in public places, and being linked to prostitution. Parents also don't want their kids to ask questions about homosexuals, so they tend to steer clear of the subject. Parents are more likely to avoid the topic rather than educate their children about homosexuals as a social group. Cruelty against the LGBTQ community has been prevalent in their homes. Cases of honor killings and marrying their Homosexuals children to heterosexuals to avoid the shame of having a homosexual child are very common in society, leading LGBTQ community members to commit suicide to get away from the cruelty they have to face in society.
This demonstrates society's mentality. In a society where homosexuals are frequently advocated for medical treatment, homosexuality is regarded as a disease. The individual's family members are the first to learn of that. Thinking as though you're gay? "I shouldn't have slept next to you"[12]; what if you find me attractive or if I stay with you, I'll also become homosexual? Even educated people feel the same way. It's not better for transgender people. Fearing that transgender people might become "infected" with a disease, some doctors refuse to treat them. Another pressing issue in today's society is transphobia. More than three hundred doctors were interviewed for a study by "Stanford and the Civilian Welfare Foundation, a non-profit in Kolkata"[13], to check for bias.
This study reveals society's prejudices and that "doctors" find it difficult to believe that transgender people get raped and refuse to prescribe anti-HIV medication to them (even though they are a high-risk group for HIV). Vyjayanti Vasanta Mogli, an Indian transgender woman, has shared her experience, which will help us comprehend the entire scenario She says that the environment was like a prison with high walls and electric fences, where she was treated like a criminal and her family made her go to a psychiatric hospital for "corrective therapy." The absence of family support is devastating given our society's rigid social structure.
The expression "blood is thicker than water" is familiar to us. We won't bear in mind that the complete phrase reads. "The blood of the covenant is thicker than the water of the uterus," implying that the bonds you forge on your own are much stronger than the ones you were given. We can make your circle of relatives value you as you're. Performance creator Bidisha Mohanta concurs that the community was shown that we tend to, as people, area unit occupancy in the proper direction by the reading of Section 377. However, it's solely the start.
The law has been modified, however, hate crimes against the community haven't disappeared. It appears as if there's a perception that LGBTQ+ folks are unit antigens. LGBTQ community has to face harassment in the workplace also, earlier they were not allowed to work but after some change in mentality and law, they were allowed to work the hostile behavior of colleagues and unawareness of what the LGBTQ community is led to harassment at workplace. When homosexuality was decriminalized by the apex court there were various questions among the people. Some of the questions were whether homosexuality is a disease, and the answer to that is "no" as homosexuality is just a way of living, even the Indian Psychiatric Society confirmed that homosexuality is not a disease.
Another misconception developed among the people is that after the decision of the court, there will be an increase in the number of homosexuals in the country, which is also false as no one can become homosexual by their choice, whether they are homosexuals or not, it is just that those people who used to hide their sexual identity will come up and express their identity, one person shared his experience where he was a roommate of a homosexual in the boy's hostel where they are preparing for the NEET examination and when they departed from the hostel after completion of the course his homosexual friend tells him about the other people who are gay and bisexual, in the batch of 150 students 12 of them are gay and bisexuals, these are those people who do not came up and tell the world about their sexual identity.
Some people have tried to mock these homosexuals by tagging them on the post of social media and making fun of them, situation and thinking do not change within a day or by just passing or decriminalizing a law, there should be a change in the mindset of the people which would ultimately change the societal view toward LGBTQ community. Laws and Acts which are enforced in India do not recognize the LGBTQ community, like Hindu Marriage Act 1955 which does not allow same-sex marriage.
Traditional Islamic law prohibits homosexual acts and imposes a variety of penalties, including the death penalty[14]. Also, various crimes are not gender neutral like laws related to rape which only focused on women and does not consider man and homosexuals, ultimately hampering their rights. LGBTQ community members are more prone to domestic violence as they are not accepted by their own families, but this community is not protected by the Domestic Violence Act, of 2005 as this act only recognize minor and women as a victim of domestic violence.
Parliament 2019 passed the Transgender (Protection and Rights) Act, to define the punishment for the offense of violence, rape, and abuse against transgender people. But this Act contains various problems or shortcomings, to get a certificate of identity as a transgender person, a person has to apply to the district magistrate, neglecting non-binary and gender-neutral people and also hindering self-determination.
Lack of awareness among lawyers and judges, also the lack of LGBTQ judges and lawyers in the judiciary system affected the whole purpose of this act.[15] Representation of LGBTQ community members on television, movies, and web series often does not portrays the true picture, many of them are just filled with stereotypical believes and portrays gay men as feminine and weak character in these shows.
All these shows, movies, and plays are seen by many people, of various age groups, such depiction of them creates a false image of LGBTQ community members among the common people which hurts the sentiments of LGBTQ community members. We should cause a threat to the materials of society also, a widespread thought among Indian families is, that the third gender is a Western thought that's destroying India's ancient culture. Despite its lot of refined manifestations, biphobia is very regressive. Comments like "You're simply confused," "This is simply a part," and "You're widening your horizons to spice things up" area unit among the foremost insulting. are completely pitiful.
A person United Nations agency is bisexual might already be in a very state of mental turmoil as a result of they do not assume they're "gay enough" or "straight enough''. Hearing such statements causes them to become enraged, depressed, and hostile inside, which may prevent them from pursuing romantic relationships. The known yoga guru, Ramdev's statement that sex is simply a nasty addiction that may be cured by yoga may facilitate the North American nation's perceive society's outlook.
He further says, "Homosexuality is not genetic, and if our elders were homosexuals, we wouldn't be born.". Thus, it is out of place. Baba Ramdev believes that yoga will treat sexual activity, but he does not reveal the asanas that would facilitate this kind of treatment.[16] Sadguru, a renowned yogi and the founder of the Isha Foundation called the LGBTQ community a part of the campaign, where individuals defy nature.
He goes on to explain that the "campaign" is spreading across the globe as a result of them sharing their experiences. KM Shaji leader of the Indian Union Muslim League (IUML) called the LGBTQ community a "shame" and he also referred to them as the "worst kind of people". He said, " LGBTQ sounds something important, but those are uncouth local activities. They are the worst humans. They are projecting it as colorful, but the term itself is dangerous, it creates anarchy in society. Deciding one's gender after growing up is just silly."
He blamed the Kerala government for creating confusion about the third gender. He said that he only believes in two genders and nature also does so and this confusion about the third gender, destroy the religious community's faith, belief, and culture. He further added that "LGBTQ are the worst kinds of people, even this term is dangerous.
There are many ways to solve this hormonal disorder including counseling."[17] Homosexuals are also adversely laid low with these statements from such an outstanding temperament with an oversized following. Not just all leaders and celebrities are like that, many leaders came in support of the LGBTQ community, one of the is Theman Bhagwat, the chief of Rashtriya Swayamsevak Sangh (RSS), He said "People with such proclivities have always been there; for as long as humans have existed... This is biological, a mode of life. We want them to have their own private space and to feel that they, too, are a part of society. This is such a simple issue. We will have to promote this view because all other ways of resolving it will be futile".
He also cited Hindu scriptures and mythology and said, "Without much hullabaloo, we have found a way with a humane approach to provide them social acceptance". Such support from such a strong leader will help the LGBTQ community to get recognition in society[18]. We should work toward the LGBTQ+ community's growth as a society and society should adopt an inclusive outlook. Homosexuality ought to be instructed to kids in faculties. Since it's overdue that we start to acknowledge our privilege, use gender-neutral language, and educate ourselves so this society will embrace the spread of affection form.
Legal Provision:
The High Court of Delhi in the case "Naz Foundation v. Govt."[19] highlighted the primary aspect of declaring section 377 of the Indian Penal Code unconstitutional. of the NCT of Delhi, in which The Naz Foundation, the petitioner, argued that "Section 377 of the Indian Penal Code" clearly violates the sacred Fundamental Rights enshrined in "Part III of the Indian Constitution", rendering it unconstitutional.
They argued that the discrimination against these sexual minorities was seriously infringing on Article 14's right to equality.[20] Additionally, it was argued that sexual relationships were extremely private matters. Given that Article 21 of the Constitution guarantees everyone the right to life, including the right to privacy, was violated by state interference in such a sensitive issue. There was a secondary effect of this kind of discrimination against the LGBTQ community because of their unusual sexual orientation. It demonstrated a clear violation of "Article 15(1), which prohibits state discrimination based on "sex."
Additionally, the petitioners argued that Article 19 violated the victims' fundamental rights because they were denied "the freedom to freely express their sexual preferences and to move freely to engage in any kind of homosexual behavior". The highly acclaimed judgment of the Delhi High Court came after extensive research regarding the interpretation of Section 377.
The Court became aware of the problem of homosexuals being harassed in society and declared that Section 377 violated "Article 14, 15, 19, and 21 of the Constitution" insofar as it attempted to make private sexual activities with consenting adults illegal. The Court also realized that Section 377 has only been used to protect victims from any kind of forced or unnatural sexual activity up to this point.
Therefore, it would be a misuse of the Section to criminalize sexual relations and activities between consenting homosexual adults. "The provisions of Section 377 IPC will continue to apply to penal non-vaginal sex involving minors and non-consensual penile non-vaginal sex, the Court stated''. Then comes up the landmark decision known as "Navtej Johar or Navtej Singh Johar v. Union of India" which decriminalized homosexuality in India. Multiple Public Interest Litigation brought by various LGBTQ+ community groups resulted in the "Supreme Court of India's" decision.
Section 377, which criminalized sex between two consenting adults, was struck down by the Bench. The provision that makes non-consensual interactions with children or animals illegal was upheld by the Court. Section 377 violates "Articles 14, 15, 16, and 19 1 (a) of the Indian Constitution, according to the Supreme Court". It acknowledged that everyone regardless of their sexual orientation or gender identity has the "right to live in dignity, exercise autonomy, and maintain their personal and private lives" without interference from the state.[21]
Judicial Pronouncement:
To protect the rights of homosexuals various national and international initiatives have been made to curb discrimination that has been faced by the LGBTQ+ community. Numerous human rights breaches have been committed against people because of their sexual orientation and gender identity have been documented by the UN office for human rights. In a series of resolutions, "The United Nations General Assembly has called on states to ensure the protection of the right to life of all persons under their jurisdiction" and to conduct thorough and prompt investigations of all murders, including those that were motivated by the victim's sexual orientation and gender identity[22]. Restrictions on the exercise of rights to freedom of association and assembly, restrictions on free speech, and discriminatory legislation are all examples of discrimination.
In June 2011, the United Nations Human Rights Council became the first UN intergovernmental body to adopt a comprehensive resolution on human rights, sexual orientation, and gender identity[23]. Resolution 17/19 mandated a study on the scope and extent of these violations as well as the steps needed to address them. In it, the Council expressed its "grave concern" about people being targeted for violence and discrimination based on their sexual orientation and gender identity.
In December 2011, "the Office of the High Commissioner for Human Rights" released the requested study, which pointed to a pattern of discrimination and violence against people based on their sexual orientation and gender identity[24]. In March 2012, a panel discussion based on its findings and recommendations was held at the Council.
The United Nations had not previously held a formal intergovernmental discussion on the subject. The core legal obligations of States concerning protecting the human rights of LGBTQ people as defined by international law is to "protect individuals from homophobic and transphobic violence and prevent torture and cruel, inhuman, and degrading treatment, Repeal laws criminalizing homosexuality including all legislation that criminalizes private sexual conduct between consenting adults, Prohibit discrimination based on sexual orientation and gender identity, Promote a culture of equality and diversity that encompasses respect for the rights of LGBTQ people and many more"[25].
At the national level, the Supreme Court of India has correctly interpreted "Section 377 of the Indian Penal Code", which stipulates that "anyone who violates the natural order by having sexual relations with a man, woman, or animal is guilty of a crime". The court hasn't taken the entire provision out of the law; rather, it has read it down so that only the part of it that used to punish people even for consensual carnal intercourse (including carnal intercourse between homosexual adults) has been changed. Penile-non-vaginal intercourse between adults without consent and between minors is still a criminal offense.
The dignity of the" Golden Triangle of the Constitution -Articles 14, 19, and 21"-is unquestionably upheld by the Supreme Court of India by all constitutional mandates. The court has rightly upheld that an individual's sexual orientation is an important part of their dignity. According to "Article 15 of our constitution", which states that "The state should not discriminate among people based on caste, creed, religion, sex, etc.," the drafters of our constitution had no intention of encouraging discrimination among the people. Sexual orientation-based discrimination is also prohibited because the term "sex" is used in this context.[26]
Comparative Analysis:
Some laws make homosexuality illegal in 69 countries. The majority of them are located in South Asia, Africa, and the Middle East. Nonetheless, India was on the list before its most recent decision. According to the report, homosexuality still carries the possibility of execution in eight nations. According to Ilga, there has been a shift in the trend toward decriminalizing acts of the same sex. At the moment, 28 nations recognize same-sex marriages, and 34 others at least partially recognize same-sex partnerships. "81 nations had laws against sexual orientation-based workplace discrimination as of December 2020". 20 years ago there were only 15 countries.
"In 2000, the Netherlands became the first nation to legalize same-sex marriage when the Dutch parliament passed a landmark bill allowing the practice by a three-to-one margin". Other nations have also taken the initiative for the LGBTQ+ community. The law permitted same-sex couples to wed, divorce, and adopt children. "A marriage can be contracted by two people of different or the same sex" was changed in a single sentence by the legislation to reflect the new language in the existing civil marriage statute.
The first nation to legalize homosexual marriage was the Netherlands in 2001, Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2008), Sweden (2009), Iceland (2010), Portugal (2010), Argentina (2010), Denmark (2012), New Zealand (2013), Uruguay (2013), France (2013), Brazil (2013), England and Wales (2013), Scotland (2014), Luxembourg (2014), Ireland (2015), Finland (2015), Greenland (2015), the United States (2015), Colombia (2016), Australia (2017), Germany (2017), Malta (2017), Austria (2019), Ecuador (2019), Taiwan (2019), and Northern Ireland (2019)" and at last "Costa Rica became the first nation in Central America to legalize same-sex marriage in May 2020. In 2018, the nation's highest court declared the ban on same-sex marriage to be unconstitutional and stated that it would be lifted in 18 months unless the legislature took action before then, which it did not[27].
Whereas as compared to other countries, India in the landmark case of "Navtej Singh Johar v. Union of India", decriminalized homosexuality and addressed several important constitutional questions. Transgender Indians were granted official minority status and legal recognition as legal third gender by India's Supreme Court, which took proactive action to protect them from discrimination.
But just legalizing homosexuality is not enough as we can see instances where the rights of homosexuals have been hampered, US and UK saw some clawback of rights regarding gender identity and sexual orientation[28]. Although LGBTQ+ rights have long been a major battleground in the United States, U.S. leadership has played a significant role in defending them around the world.
However, the Donald J. Trump administration halted or even reversed during the administration of Barack Obama, a rapid expansion of protections in the United States, particularly in health care and military service. Additionally, in U.S. foreign policy, Trump gave LGBTQ+ rights advocacy less weight. Trump's regulations, which allow recipients of grants from the Department of Health and Human Services to discriminate against LGBTQ+ individuals, have an impact on HIV prevention, foster care, and adoption services.
Even removing references to LGBTQ+ people from policy guidance, Trump's foreign policy agenda deemphasized the inclusion and advocacy that were at the heart of diplomacy during the Obama administration. We can also use Canada as an example because it is home to approximately one million LGBTQ people,[29] with younger people making up a disproportionately large portion of the LGBTQ population.
The report, however, also addresses dangers faced by LGBTQ Canadians, such as the recent rise in hate crimes committed against individuals because of their sexual orientation. While many trends point to an expanding LGBTQ population in Canada, "The highest number of such incidents since 2009 was 263 in 2019, a 41% increase over the previous year"[30]. With marriage equality and legal protections against discrimination, South Africa is leading the way in the fight for LGBTQ+ rights on the African continent.
It was the world's first nation to legalize same-sex marriage and the fifth nation to protect against sexual orientation-based discrimination. But the problem is that Civil servants can refuse to solemnize civil unions under the Civil Union Act if they object to same-sex relationships based on their "conscience, religion [or] belief. Making it difficult for same-sex couples who want to get married in a religious country''.
While an amendment to the bill will address some of the issues that the LGBTQ+ community faces, it will not address the deep-seated tendency in South Africa to marginalize gay people.[31] In the case of India, the legislature came up with the "Transgender Persons (Protection of Rights) Bill, 2019" which was enacted to protect the rights of the Transgender Community by prohibiting discrimination against them in employment, education, healthcare, as well as access to public or private facilities. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanizes their body and identity.
Despite the decriminalization of homosexuality, India's laws continue to be discriminatory against the LGBTQ community in several ways. This is because there is a significant gap between the development of LGBTQ laws in India by the legislature and the courts.
As a result, despite the "Supreme Court of India's" landmark decisions in "National Legal Services Authority v. Union of India, Navtej Singh Johar v. UOI", establishing a set of fundamental human rights for the queer and non-binary community, the legislature has not kept up with the latest developments.
Therefore, even though same-sex couples now have the legal right to cohabit and conduct their personal affairs without fear of persecution, same-sex couples continue to be denied equality of treatment in several areas. As a result, it is necessary to carry on the discussion and talk about the various laws that continue to discriminate against LGBTQ+ people Anti-discrimination laws include, among other things, denying rights to adoption and surrogacy and not recognizing same-sex marriages.
Conclusion:
After numerous attempts made to establish the status of homosexuality in India, we can conclude that we must comprehend the primary source of contention regarding homosexuality. Just enacting laws or abolition of any certain law will not make any impact on society, we will have to work on moral grounds. Society tends to neglect the idea of the third gender and also neglects the right to privacy that the constitution grants to them.
The view that society holds towards them is derogatory. However, it is essential to keep in mind that sexual orientation, as a biological function, cannot have a significant moral impact. Because they are influenced by society, a person who is not biologically homosexual cannot engage in homosexual activities.
Instead, if we maintain a liberal perspective that values gender equality and the rights of all genders, we will be able to respect the LGBTQ community's rights. Our way of life should not change as a result; Instead, it ought to imply that we cultivate and mature into responsible citizens who can spread out their lives, enabling every right-thinking member of society to lead an unaffected life.
It all depends on how strong a person's personality is. We ought to be able to prioritize our morals without showing disdain for the various members of the community. We ought to permit ourselves to respect the diversity of the human race, which may manifest itself in the form of diverse festivals, cuisines, cultures, and, more recently, sexual orientations. The strength of our character, in conjunction with our biological matrix, determines whether or not we in still such a variant in ourselves.
However, the LGBTQ community ought to have the same right to accept or reject this variant as we do. It's possible that what society considers normal is a deviation from them. Although mocking homosexuals and viewing them as a disease may be commonplace in society, these attitudes will significantly negatively impact the mental health of members of the homosexual community. In society, there shouldn't be any kind of discrimination against the LGBTQ community.
People should not feel pity or sympathy for them, People should see them as a normal member of society, and we should make them feel included in society, their sexuality is not a condition that has to be normal or abnormal, that is just a biological factor and it should not be considered as a mental problem.
Homosexuality is just about sexuality in which there is no role of mental stability or instability and it is not even related to something like paranormal activity, which shouldn't be accepted by society. Every human being has a right to choose their gender and we should accept this right of people and should let them live their life as they want to.
Education is the best way to bring change to society. The problem related to unawareness of the LGBTQ community can be solved by including this topic in our education system. Educating students about their existence in our history and how members of the LGBTQ community are alike us and that it is just a biological concept and not related to any mental disorder.
Even the LGBTQ community should understand that these changes may take some time because just decriminalizing one section will not bring change in the mindset of the people, it will take some time till then LGBTQ people should remain patient, and give people some space and time to accept the fact that LGBTQ people are no alien, they are just part of our society. Society as well as the legislature should maintain a liberal, strong, and healthy outlook for every member of society.
End-Notes:
- haileeworth13, ‘chapter 7'(Quizlet)
- Deepanshi Mehrotra ‘The Pre-Colonial History of Homosexuality in India: Why Love Is Not Western' (octopus, June 29, 2021)
- Rajnandini Mahajan, ‘Analyses Of Section 377 Of The Indian Penal Code (blog. ipleaders, 22 January 2016) < https://blog.ipleaders.in/analyses-section-377-indian-penal-code/>
- Niharika Banerjea, ‘Critical Urban Collaborative Ethnographies: Articulating Community With Sappho for Equality in Kolkata, India' (2014) 22(8) Gender, Place & Culture 1058, XXXX .
- khushboo Garg, ‘HOMOSEXUALITY IN INDIA' [2020] Legal Readings
- Naz Foundation v. Govt. of NCT of Delhi (2009).
- ‘Lex Humanitariae: Journal for a Change' (2020) Volume I Issue III Lex Humanitariae.
- Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice (2018).
- Vikas Pathak, ‘Reactions to Section 377 verdict' The Hindu (India, 6 September 2018)
- Rukmini S, ‘Homosexuality in India: What data shows' [2018]
- Nayantara Maitra Chakravarty, ‘Indian Society Lacks Acceptance For LGBTQ+ People Despite Decriminalisation' (outlookindia, 28 June 2022) www.outlookindia.com/national/indian-society-lacks-acceptance-for-LGBTQ-people-despite-decriminalisation-news-205083>shethe
- Priyanka Chakrabarty, ‘5 Judgements That Paved the Way for LGBT Rights in India Read More At: https://www.shethepeople.tv/home-top-video/5-judgements-that-paved-the-way-for-lgbt-rights-in-india/' [2020] shethepeople.
- Nayantara Maitra Chakravarty, ‘Indian Society Lacks Acceptance For LGBTQ+ People Despite Decriminalisation' (outlookindia, 28 June 2022) www.outlookindia.com/national/indian-society-lacks-acceptance-for-LGBTQ-people-despite-decriminalisation-news-205083>
- SHREYA RATHOR, ‘Same Sex Marriage In India' [2020].
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