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Section 377: An Arduous Journey For Gay Rights

An introduction not for nothing, the great German thinker, Johann Wolfgang von Goethe once said, I am what I am, so take me as I am. Quoting the above lines, this article is about that community of our country that fought for years and ultimately after a long, hard and tiring struggle got what they deserve from the law of the nation. They are the homosexuals or the LGBT community. This article is all about homosexuality, problems faced by homosexuals by our society, rejections that they get everyday from their family for being what they are.

The most important aspect of this article is to acknowledge of you the hard and tiring journey of the human rights activists to decriminalize same sex relationships in our country which comes under SECTION 377 of IPC (The mot notorious among them all) which was curbed down recently by the Supreme Court in 2018.

Meaning of Homosexuals and Problems Faced by Them
Homosexuality refers to sexual behaviour between members of the same sex or gender. As a sexual orientation, homosexuality is An enduring pattern of emotional, romantic and love sexual attractions to people of the same sex. The most common term for homosexual people are lesbian for females and gay for males. Commonly both homosexual males and females are refer to as gay. With bisexuals and heterosexuals, homosexuals are also one of the main categories in our society but then too they are penalized from time to time for what the nature had made them.
Discrimination to homosexuals by the society is prevailing since ages.

At different times and in different cultures, homosexuals behaviour has been vigourously approved of, tolerated, punished and banned. Homosexuality was treated as heinous offence in Manusmriti and punishment for such acts was there. In Islamic period the Muslim Shariat law treats homosexual conduct as a serious offence. Therefore in different religion different punishments were provided to homosexuals of India.

They are the one who have remained victims of violence in different forms supported by the state and the society. In different part in different ways the homosexuals are harassed and tortured, secret honour killing are also planned so that the only way for a young gay man to survive is to run away in the cover of the night to some city, with no money or social support. In other parts lesbian women are subjected to family sanctioned corrective rapes which are often done by their own family members.

Such harassments and punishments make them alone and aloof in the society. Lack of communication and misunderstanding between parents and there homosexual children increases family conflict which ultimately leads to family disruption. Not only this, loneliness makes them a drug addict too. Addiction to alcohol and drugs are more common in them than in ordinary people according to the survey made in 2017.

The human right activists fought over many years and finally ended up with a win in curbing down the laws which stood against homosexuals, in the year 2018. Putting forward the glimpse of such journey.

The Taste of First Victory
Movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan (ABVA) in 1991. Their historic publication,  Less Than Gay: A Citizens' Report on the Status of Homosexuality spelt out the problems with Section 377 and asked for it’s repeal.

The case again was revived in the next decade, led by the Naz Foundation (India) Trust, an activist group which filled a Public Interest Litigation in Delhi High Court in 2001, seeking legislation of homosexual intercourse between consenting adults. However in 2003, Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitoners had no locus standi in this matter.

The Naz Foundation did not stop here and went to Supreme Court and appealed against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that the Naz Foundation can file a PIL in this Case and further sent the case back to the Delhi High Court to reconcile it on merit. As soon as the petition got its acceptance, there were many who came out and supported the LGBT community fearlessly.

To start a movement you have to move out first and then expect others to come with you said by Rabindranath Tagore, came out to be very true in this situation. Sunil Mehra a journalist who was in a relationship with Navtej Singh Johar, a dancer (who filled the petition against Section 377 in 2016) Ritu Dalmia and Aman Nath a writer, are names of those who demonstrated keen activism.

In 2008, in the month of May, the case came up for hearing In the Delhi high Court and on 7th November, 2008 the seven years old petition finished its hearings. Where Ministry of Health of India was in support with the petition, the Home Ministry oppose the move. Finally, the judgment was delivered on 2nd July, 2009 where Delhi High Court overturned the 150 years old section, thus legalizing consensual homosexual activities between the adults.

This was the first time when people fighting fir LGBT group tasted their victory, but the happiness didn’t lasted for long. In 2013, the Supreme Court quashing the High Court order, held that the order was legally unsustainable.

Criticism and Support
People mostly criticize on what they can’t understand, are the lines said by by Charles Dickens was clearly evident after the judgment by Supreme Court. Not only the normal public but also peoples possessing high status in the society went for supporting the Section 377 and criticizing the LGBT group. From Baba Ramdev to Rajnath Singh, and from P.P Malhotra (Solicitor General) to leaders of Samajwadi Party, they all were those who who clearly were in support of the Section and against of Homosexuality. Decriminalising the section may create a breach of peace in the society, was the statement said by P.P Malhotra.

The person who have millions of followers in the world, Baba Ramdev called homosexuality a bad addiction which is getting common in the youths. Homosexuality went also against the Hindutva and Indian Culture, according to the vice president of Vishwa Hindu Parishad. Love and affection to someone is a natural phenomenon that exists in the minds and brains of the people, have now become a part of distinct religions prevailing in the society. Till now we use to tie people from any specific religion, and now society is ready now to tie the minds too.

There were some who were there to support the LGBT community as well ,Vikram Seth one the greatest novelist and a poet of India freely supported the community and said In one of the article published by India Today that, To not be able to love the one you love is have your life wrenched away.

The law also came in for criticism from several ministers, the most prominent one Anubami Ramadoss (Politician from Tamil Nadu) and Arun Jaitley (Finance and Corporate Minister). According to them, Supreme Court should not have altered the Delhi High Court order which decriminalised consensual sex between the same gender.

Indian National Congress also supported homosexuality and opposed Section 377, Shashi Tharoor one of its old member also introduced a Bill for the repeal of Section 377 but it was rejected in the House by 71-24 majority in a very early phase.

Though most of them were against them, then to the struggle and the fight didn’t stop, and soon they were going to get the price for their struggle.

The Price Won: Section 377 declared unconstitutional
In the year 2016, five people filled a new writ petition in the Supreme Court challenging the constitutionality of the Section. The petition was filled by Navtej Singh Johar the dancer, Sunil Mehra a journalist, Ritu Dalmia a chef, Keshav Suri and Ayesha Kapur together. So far this case was the first instance wherein any petitioner prayed infront of the Court that the Section is against the constitution of India as it violates right to sexual privacy, dignity, right against discrimination and freedom of expression. Supreme Court decided to review the petition and the criminalization of the homosexual activity.

In the middle of all this, in 2017 there came a judgment of the Supreme Court where the court unanimously ruled that the right to individual privacy is a fundamental right in the Constitution of India. The judgment also mentioned that ripght to privacy and right to sexual orientation lies at the core of the fundamental rights guaranteed by Article 14,15 and 21 of the Constitution. This judgment gave hopes to the LGBT activists that the Court would soon strike down the Section as according to them the Section was violative of the articled mentioned by the Court in the said judgment.

It was in 2018, when the hearing of the petition started to challenge the constitutional validity of the Section 377 with five judge constitutional bench comprising of Chief Justice Dipak Misra, Justice R.F. Nariman, Justice D.Y. Chandrachud , Justice Indu Malhotra and Justice A. M. Khanwilkar.

The petition urged to the court that the Section 377 is unconstitutional and should be curbed down as it is violative of Article 14 (Equality before Law), Article 15 (Prohibition of discrimination on grounds of religion , race ,cast, sex or place of birth ), Article 21 ( Right to Life ) of the Indian Constitution. The hearing went for four days after which the Court reserved its verdict.

8th September, 2018 was the day when finally the judgment came and also when the Supreme Court reversed it’s 2013 judgment of restoring Section 377. The Court stated that using this Section of Indian Penal Code to criminalise homosexuality is now unconstitutional and henceforth a criminal act. The Court also unanimously declared that the portions of the law relating to consensual sex between the adults is unconstitutional. However, the other remaining portions of the Section 377 relation to sex with minors, non-consensual sex between adults and bestiality still remains in force.

Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional, was said by CJI Dipak Misra with the judgment. Justice Indu Malhotra said:
History owes an apology to these people and their families. Homosexuality is the part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for [the] LGBT community.

Not so soon but also not so late, after 157 years homosexuals got what they deserve, a valid legality to their relationship in our country. Decriminalising consensual sex between the adults of the same gender made India to join 125 nations where homosexuality is legal. This was the prize that LGBT activists got for their struggle for seventeen years.

They fought and finally they won. Is this the end to it? The answer is completely no. The judgment alone does not change people’s lives. After the Supreme Court judgment virtually all political parties appeared to agree. There were no large demonstrations by people against it. This seemingly ready acceptance clearly reflected that it is just the fear of homosexuality that people are having, because they are unaware of the real facts.

People like Baba Ramdev, needs to understand that homosexuality is not an addiction or a mental state of a person but something innate and natural to a human being. But we also have to agree to a fact, that change in the society is a slow process and it requires constant effort on the part of those who wish the see the change. The Supreme Court judgment already laid the foundation to it. All we need to do is raising awareness and cultivating empathy because ignorance is only the main reason for homophobia in people.

So just we need to put efforts for the right thing, and hope for a better, safe society with equal status given to all.

Award Winning Article Is Written By: Mr.Yash Seth

Awarded certificate of Excellence
Authentication No: MA34179986291-28-0521

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