Author: Tanvi Kamble
Sinhgad Law College
Sexual minorities are the group whose sexual identity, orientation or practices differ from the majority of the surrounding society. Usually sexual minorities comprises of lesbian , gay, bisexual and transgender individual . Male –female dichotomy in hetero-normative societies has created havoc in the life of sexual minorities thus obscuring the fact that they are human beings. The intent here basic human rights of this community and need for provision of equal opportunities and protection of rights like any other law abiding citizen.
THE HISTORY OF THE LEGAL BATTLES OF THE LGBT
The history of the legal campaign for the rights of LGBT persons in India largely started with legal challenge to section 377 is an anti-sodomy provision derived from Indian penal code of 1860
Sec 377 of the Indian penal code
Legal Discrimination against the sexuality minorities takes many forms, the most notorious being section 377 of the Indian penal code (IPC), a British colonial legislation criminalizing homosexual behavior , that continues to be in the Indian statue book although it has long since been removed from the British statue book.
SECTION 377 reads; of unnatural offence ; Whomever voluntarily has carnal intercourse against the order of nature with any man , women , or animal , shall be punished with imprisonment of either description for a term which may extended to 10 years and also be liable to fine
The real battle for LGBTI rights started in 2001 with a petition filed by the lawyer collective on behalf of Naz foundation challenging the constitutionality of section 377 in the Delhi high court. This was not the first time that section 377 was being challenged. It was first challenged in 1994 by a group called AIDS Bhedbhav Virodhi Andolan, which was working on HIV/AIDS, but their petition however was not actively pursued. Thereafter , in 2001 a public interest litigation (PIL) was filed by Naz foundation .
EXCLUSION IN THE STRUGGLE CENTERED ON READING DOWN SECTION 377
As we know , a change in law does not always change a well-ingarined social mindset. Real and significant changes which lead to the improvement of the quality of life of all individual in a society take far longer than the duration of any legal battle. Further using any law center of a struggle for rights may bring contradictory result. With regard to section 377, the history of the law in such that its public perception brings our imagination, primarily male person. Effort in the movement have been to made this struggle as inclusive as possible. But as with all social movements, different groups have different concern even within the law.
Within the law itself, the most visible has become the challenge to section 377, same sex desiring and gender transgressive people , however , are harassed under many other section with the law. There is an ample proof in this regard. Same sex desiring women are one such example. While 377 might not be used to threaten them always , as it primarily refers to men ,many other laws has been repeatedly by the police , friends , colleagues, employers and parents, for the same purposes.
On 6 September 2018, the court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”.
One year ago on September 6,the supreme court scrapped the part of the colonial –era section 377 of the Indian penal code that criminalized homosexuality , decreeing consensual sex between same sex partner not criminal.
The court ruled that criminalisation of consensual sex between adults in private violates the constitution’s gaurentee of dignity , equality , and freedom from discrimination based on sexual orientation (Articles 21,14 and 15). Thus , the judges “read down” section 377 so that it no longer criminalises consensual sex between adult in private. However the judges held that section 377 will continue to govern cases of non-consensual between adults as well as any sex with children.
In shorts, the campaign against section 377 is a lesson in how the law can be discriminating to some. It also proves that when people come together and fight for their rights, the courts and government can be persuaded to listen. Further , it is shown that , while changing the law is an important aspect of a struggle it is not only one.