Section 377 Of Indian Penal Code

Author: Sanskar Meena Student, Rajiv Gandhi National Law University

Introduction

When love itself has no limits then why do people have? Why does our society judge everyone for the choices one makes? Why one has to choose between one’s happiness and society’s acceptance? Is there any difference between sex and gender? The author has tried to answer all these questions.

The moment a child is born, the sex that is announced by the doctor dictates many aspects of his life. This notion is questioned by few who find it difficult to fit into that prescribed gender or traditional notions of society. These are transgender who exist in every culture and are not abnormal in today’s world. Even there’s an umbrella term called LGBT meaning lesbians, gays, bisexuals and transgender used for the people who are different from just males and females. They are the one who are questioning their sexual identity and finding it difficult to adjust into rigid notions of society.

This concept came into light in 20th century when there were many people whowere not comfortable with their identities. Sex is a word which basically means the prescribed category of a person i.e. either male or female which is announced by doctor at the time of birth whereas gender is just choice what a person itself feel. This choice further determines the identity of the very person. It is more difficult for people living in middle class families where even talking about these things is forbidden. That person is already in conflict with himself/herself for being different with the actual norms and then society leaves no stone unturned to bully him further.

Discrimination Against People of LGBT Community

People of LGBT community are facing discrimination in many spheres of life. They are treated as aliens; normal people are not ready to accept them. People from LGBT community face discrimination in employment sector, education sector, medical facilities and other problems like alcohol abuse, appendectomy and depressions. They are often referred to as hijras/kinnars etc. Though constitution provides right to equality regardless of any discrimination on the basis of sex, creed and religion; society is judging them on the basis of their gender.

Section 377 & The Judgment

Earlier section 377 of IPC used to criminalize the same sex relations among consenting adults and whoever does so was liable for punishment up to 10 years of imprisonment and fine. It also includes unnatural sexual activity whether it’s with animal or with same sex. This provision of Indian Penal Code came into existence in 1862.This section was criticized several times as it restricted the freedom to choose sexual partners but with the 2018 amendment, it saved human dignity. This practice was used by the police to harass. It was based on an incident when a person from transgender community got arrested due to theft charges but he was sexually abused by others which further impacted his health. Similar instances have been faced by many people belonging to LGBT community. Therefore, in 2018 to stop this discrimination, Supreme Court decriminalized this practice.

It was on 6thSeptember, 2018 when Supreme Court ruled in Navtej Singh Johar vs. Union of India that article 377 was unconstitutional thereby decriminalizing sexual conduct between adults of same sex. The court said that sexual activity is not a choice but just biological phenomena but there’s exception regarding sexual activity with animals. It’s still criminalized if any person indulges in any unnatural sexual activity with any animal. In the past also, Supreme Court did take some efforts to save this community of LGBT like Supreme Court’s judgment of KS RadhaKrishanan gave recognition to the third gender like male and female. This third gender has been included in all official documents like ration card, passport and for admission in educational institutions. With this 2018 amendment India is among those 125 nations which decriminalizes homosexuality whereas around 70 countries still criminalize homosexuality. Even western countries like US have rights of same sex marriages too whereas Iran and Saudi Arabia have stricter laws for homosexuality.

The constitution of India has given several remedies to the people who are being discriminatedbecause of their identity. It includes basic human rights which cannot be snatched away by the people like right to equality, life, liberty, dignity and thought. Taking view of articles 14, 15 and 21 of the Constitution of India this judgment was passed decriminalizing homosexuality as it’s unfair to punish just because of their sexual orientation.

You Can Love But Can’t Marry

LGBT people are still facing discrimination when it comes to right to equal opportunities; they are not getting adequate representation to showcase their talents. They don’t even get the basic right of education thereby they don’t get good jobs resulting in further poverty that is lack of health facilities and in this way this poverty cycle goes on. Even if they get admission in educational institutions, they are treated as a different and unacceptable human and are being harassed by others. They are often judged and viewed as unacceptable by the society just for their choices of gender. At last, they have no other option than begging or sex work.

It’s rare when any talented or skilled person from this community get any recognition or good jobs. Even if they get any, they are being discriminated and forced to leave that position since our job culture is limited to hiring either males or females.

June Aa A Pride Month

Consistently in June the world observes Pride month devoted to the people of LGBTQ+ community and their right to carry on with an honorable life. Pride is about individuals meeting up, to show and commend how far the rights for them have come and what amount is still left to accomplish.

Pride month is about equality, showing acknowledgment, instruction in pride history or more all, affection. During this month, we instruct others and ourselves about how harming homophobia is and why we need to dispose of it. It’s tied in with being glad for what your identity is regardless of who you love.

Global Pride Day will be celebrated on June 28. There are normally vivid motorcades, shows and walks across the world. Since the Covid-19 pandemic is as yet floating around, the same will be celebrated by a lot of people on the web. From 1969, people of LGBTQ community and partners have been contending energetically to give the local area the option to marry, to receive kids, to begin families, to battle separation, and to just allow eccentric people to exist. If one recognizes the advancement one has made, one likewise should be reasonable and recollect that one actually has far to go as a country.

Conclusion

It is high time that the society accept the choices and decisions one makes for one’s life. It has no right to mark something as acceptable and something as unacceptable. Most of its notions are evidently categorized as normal and what is abnormal meaning what is not accepting and against those so-called norms. It’s mindset of the society that needs to be changed to make any country more developed and progressive. Change is the law of nature and old age customs and beliefs have to be changed to provide basic rights and a dignified life to the LGBTQ community. Giving legal recognition to same-sex marriage does not hampers the rights of heterosexuals, it does not undermine the concept of family rather it provides an extension to it. India achieved a milestone by accepting consensual gay sex but the battle must continue till it becomes pride, not prejudice. This can be achieved by spreading awareness and accepting others’ opinions.

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