May 22, 2024

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Sec 377: An act against the will of God?

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People living in the same relationship are given different nomenclatures like Lesbians, Gays, bisexuals, and Transgender Queer LGBTQ. These kinds of people are normally known as homosexuals. Homosexuality refers to sexual interaction between individuals of the same gender. Homosexuality over the years is used in different terms. Presently it is known as LGBTQ. LGBTQ stands for Lesbian, Gay, Bisexual, Transgender, and Queer, and along with heterosexuality, they describe people’s sexual orientation or gender identity. India has been evolving rapidly in recent years and it’s the most progressive in South Asia. However, Indian LGTBQ citizens still face social and legal difficulties not experienced by the non-LGBTQ person. Section 377 of the Indian penal code criminalizes any form of homosexual acts. This was introduced in 1860 during the British rule in India. This clause held that forms of sexual intercourse that were ‘against the order of nature are offenses against this opposition to sexual relations between members of the same sex were many, some called it a social vice, some called it the reason behind the spread of HIVs and AIDs, and, many even called homosexuality an offense against religion and culture. But section 377 ended up being a constitutional way to discriminate against a specific group of Indian citizens lesbian gay bisexual Trans genderqueer in the LGBTQ community.

SECTION 377 says,

‘Unnatural offenses: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or an 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’.

In 2018, the court conveyed its consistent decision, proclaiming bits of the law identifying with consensual sexual acts between adults illegal. This decision upsets the 2013 management in Suresh Kumar Koushal v. Naz Foundation in which the court maintained the law. In any case, different bits of Section 377 identifying sex with minors, non-consensual sexual acts, and savagery stay in power. The court found that the criminalization of sexual acts between consenting adults damaged the privilege to equity ensured by the Constitution of India. While perusing the judgment, Chief Justice Misra articulated that the court found “criminalizing carnal intercourse” to be “irrational, arbitrary and manifestly unconstitutional”. The court decided that LGBT individuals in India are qualified for every single established right, including the freedoms ensured by the Constitution of India. It held that “the choice of whom to associate, the ability to find fulfillment in sexual affections and the benefit not to be presented to biased direct are normal for the consecrated security of sexual presentation”. The judgment likewise made note that the LGBT people group is qualified for equivalent citizenship and insurance under the law, without discrimination. Societies all over the world are permanently changing. The lifestyle of many persons differs considerably from that of the previous generation. In many countries, this also has consequences in respect of family law. Old traditional rules are confronted with new facts and circumstances and are therefore under pressure to be modified by the court or legislators. The most important task is to educate the public and raise public awareness about sexual minorities. They deserve one of the most important rights i.e. Right to Equality.

In the case of, Navtej Singh Johar V. Union of India Hon’ble Supreme Court held that section 377 was Unconstitutional. The decision was given by the Five Judges Bench. The Supreme Court ruled consensual intercourse among adult homosexuals or heterosexuals in private space does not harm public decency or morality. In a landmark verdict, the judges held that Section 377 of the Indian Penal Code had become an “odious weapon” to harass the LGBT community which was made a “societal pariah” by subjecting them to discrimination and unequal treatment. The CJI held that Section 377 in its present form violated Article19 (1) (a) which deals with freedom of speech and expression.

In 2018, after decades of grassroots activism, the application of section 377 of the Indian Penal Code to private consensual sex between men was ruled unconstitutional by India’s Supreme Court, effectively decriminalizing homosexual activity. Because of section 377 LGBTQ community face problems when they go to places like a police station or the hospital. This, of course, is in addition to the social stigma of being gay or something they have no control over Section 377 a blow to the dignity and the self-worth of these Indians. Section 377 is often used to harass, blackmail, and criminalize homosexuals. The stigma and prejudice also cause psychological problems among these individuals. Those who realize the intensity of the issue, say that the clause interferes with individual freedom and that the state has no right to discriminate against an individual based on his or her sexuality. In recent times many countries have recognized the equal status of gay people.  Some of these countries are Canada, Brazil, the U.S, Argentina, etc. the idea of homosexuality in India, however, remains highly controversial. There are many places where homosexuals are discriminated against the constitution of India should not be one of these places. 

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