SECTION 377 AND ITS AFTER- EFFECTS

Author: Umang Dudeja

IMS Unison Univ, Dehradun




ABSTRACT

In a landmark judgment for the country's LGBT community, the Supreme Court eased a colonial-era ban on gay sex in a five-judge constitutional bench headed by Chief Justice Dipak Misra on July 17, after four days of hearing various stakeholders including gay rights activists. This landmark judgment not only affected the lives of millions of LGBTQ+ people but also reversed a previous ruling that only five winters ago criminalized the community. It was on 11 December 2013 that two apex court judges decided that India's LGBTQ+ community was a "minuscule minority" and the IPC section was reinstated. Some felt better prepared to combat the micro-aggressions they encountered every day in schools, universities, or jobs. For some, post-377 world's novelty quickly wore off, as social systems, inflected by gender, caste, and faith, cut into their dreams of a life of dignity and equal.

Keywords: Section 377, LGBTQ, Fundamental Right, Freedom.


INTRODUCTION

Imagine a bird being set loose in a cage, unexpectedly. This is not going to float straight out. Ashok Row Kavi, the founder of the LGBT rights organisation, Humsafar Trust, said it should look around first, seek to make sense of its surroundings, since all the years of captivity have left it puzzled, unsure of where to go or how to get to wherever it wishes.

Coming out as LGBTQ+ is never easy, even in communities that value and protect the rights of the community. The cycle starts with recognition of oneself, accompanied by declaration to the world of that identity. Judicial reform will create an enabling environment to emerge, but social conditions do not change in step. The war must therefore be fought as much inside courtrooms as every day of our lives inside dining rooms, classrooms and conference rooms.

A critical challenge that lies ahead of India Inc is combating workplace stereotypes. The aim is to ensure that workers at LGBTQ+ feel comfortable and protected at their place of work. There is no prejudice and they are given fair equal care. To establishing a gender-neutral and anti-harassment work atmosphere, sensitizing workers in the workforce combined with equal opportunity would go a long way.


BEGINNING OF THE ERA

This colonial-era law was challenged at the Delhi High Court in 2001 by the NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan. Both the petitions were, however, dismissed at court. The Delhi Hc decriminalized sex between consenting adults of the same sex in July 2009, holding the sex in violation of Articles 14, 15 and 21 of the Indian Constitution.

Article 14 of the IPC guarantees equal treatment before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, gender or place of birth and Article 21 guarantees the protection of life and personal freedom. Nevertheless, in 2013 the Sc overturned the Hc's judgment which found it "legally unsustainable." And the court also quashed the review petition filed by Naz Foundation.

In 2014, the Sc ordered the government to designate transgender a 'third gender' and to include it in the quota for OBC.

In 2016, LGBTQ activists filed five petitions at Sc alleging that Section 377 violates their "freedom to sexuality, sexual liberty, sexual partner choice, life, privacy, integrity and equality, along with the other fundamental rights guaranteed under Part III of the Constitution."

The Sc had upheld the right to privacy as a fundamental right under the Constitution in August 2017. It also noted that "sexual orientation is an important privacy attribute"

A five-judge Constitutional bench began hearing petitions challenging Section 377 in July 2018, and then on September 6, 2018, the apex court bench declared that consensual adult gay sex is not a crime and Articles 14 and 21 of the Indian Constitution contradict Section 377’s present view. It also stated that Section 377 is still in force concerning sex with minors, unconsensual sexual acts and bestiality.


WHAT'S GOING TO CHANGE?

Nishtha Berry of Nazariya Foundation said, "Our rights have been acknowledged. We can now walk on the roads, holding hands; we can go out wearing what we like. We can be ourselves[1]." The court's decisions have kindled optimism among community leaders that they would be able to pursue marriage registration, adoption and inheritance rights for same-sex couples very soon, as well as family insurance plans.

Senior advocates and lawyers believe the decision has opened a window in every area of life for the group to try dignity. Senior lawyer Mahesh Jethmalani said the judgment would result in fair treatment.

Dr. Pankaj Arora, an associate professor at the Department of Education at the Central Institute of Education at Delhi University, also said that people will now have a better understanding of equality and not just gender and other stereotypes. "Over a period of time, people will learn to accept fellow humans for their personal choices without interfering[2]." Dr. Pankaj Arora said that even as we have adjusted to the concept of living-in partnerships since it has been legally accepted, I don't think it will take much time to embrace the LGBTQ community, perhaps the next 10 years or more, but this decision will certainly help to eliminate the taboo. "I wish and hope that the decision is not contested by any political, religious or social party," he said, who also specializes in teens education.


AFTER LONG

While the path to true inclusiveness is long and littered with potholes, some progress has been made — the group has gained recognition in mainstream politics and culture, businesses have become more inclusive, the government is developing an anti-discrimination law for transgender and more people are coming out in support.

To quote Johar judgment,[3] There was an 'unbridgeable gap between the religious principles on which [Section 377] is founded and the constitutional principles.' The assurances made by the Constitution for LGBT Indians have now been fulfilled. One year's introspection is a good time. The moment of freedom has been enjoyed, the change started from a mindset of fear to trust to claim citizenship rights, while the trauma of criminalization may last a lifetime.

Bollywood too is witnessing changes. Film has the ability to build a moral narrative reaching all over the world. Ek Ladki Ko Dekha Toh Aisa Laga struck the right note – particularly in depicting the bullying and depression faced by many young gay people. This was also unique to see a father going from uncertainty to embracing his lesbian daughter.

Amritsar and Jalandhar held their first Pride parade. Same-sex couples have been approaching courts all over the country asking for protection[4]. The courts replied by ordering the police who would have applied 377 a year ago-to protect them. Yet these only happen in the public domain due to changes within us – as we learn to let go of fear and uncertainty and accept our dreams and ambitions for a full life.


GROUND REALITIES

The struggle to sustain Section 377’s reading down momentum must start at grass-roots level. While Syed and his associates are trying to persuade local schools and universities to let them arrange workshops for young adults and millennials on gender and sexuality, other organizations are working to push through changes to the law.

L. Ramakrishnan, based in Chennai, is the vice-president of the NGO Saathii, which works on barrier-free access to health, legal, social and educational services for marginalized groups because of their HIV status and/or gender or sexual identity.[5] He relates in particular the ruling on Section 377 back to the third gender verdict of the 2014 Supreme Court, also known as the Nalsa judgment. “The disconnects between the Nalsa verdict and what the state governments understand of it, and need in order to implement it, are resoundingly large," he also said that, as an example, the state officials are waiting for government orders to be able to enforce policies on the ground, and those orders frequently do not exist. In addition, their interpretation is mostly limited to transgender = third sex = kinnar or hijra. Despite their presence in the framework of the decision, the concepts of binary gender identities and transmasculine individuals remain still alien to them.

The plight of the transmen group (those who identify as male but who were assigned female gender at birth) is especially severe. Nandini Krishnan, author of a new book, Invisible Men: Inside India's Transmasculine Networks, says, "The terminology used by judges (in the ruling of Section 377)—saying, for example, 'the law has become a tool of harassment'—is a critical moral victory." Scarcely accounted for even within the trans community, transmen may be less haunted by the fear of discovery and persecution, adds Jamal Siddiqui, a 27-year-old transman from Delhi. “The police may finally become more aware of the transman identity," Siddiqui adds, describing the recent ordeal faced by an underage transman at the hands of the police in Delhi, who had no idea that such an identity even existed, in spite of the (now nearly-five-year-old) Nalsa judgement.


WORKPLACES

To order to make workplace environments more accessible to the LGBTQ+ community, Indian government and business companies are improving their HR and company policies now.

With Section 377 being decriminalized by the Supreme Court, which no longer finds homosexuality a criminal offense, workplace benefits such as medical care, transfer, retirement benefits appointment and many other benefits will now be extended to lesbian, gay, bisexual, transsexual, queer workers.

Royal Bank of Scotland's Managing Director and HR Head, Anuranjita Kumar said they've already extended the benefits of medical hospitalization to partners of the same sex and now they are looking at extending other facilities like relocation etc, as per report of The Times of India.

Deutsche Bank and Bank of America Merrill Lynch have both said that they are willing to expand medical benefits to spouses of the same sex. Accenture India, managing director and HR manager Rohit Thakur told TOI that it was the first to introduce sexual reorientation medical cover two years ago.[6]

Many changes in our society are visible from time to time and many are still not visible as corporations such as Godrej have made small changes that can make a big difference a long way. For example, on all of its people policy documents, the word 'spouse' has been replaced with 'partner'.

A critical challenge that lies ahead of India Inc is combating workplace stereotypes. The aim is to ensure that workers at LGBTQ+ feel comfortable and protected at their place of work. There is no prejudice and they are given fair and equal care. Sensitizing people at work combined with equal opportunities will go a long way in creating a work environment that is gender-neutral and anti-harassment.


A LOT OF MILES LEFT TO COVER

The Verdict of 2013 split our hearts. As the verdict came out last year, it was an overwhelming moment, because it was a battle that Queer people have been going out their entire lives.

There were a lot of changes. The biggest being the queer people are a little more self-confident. There are many people who have been able to find to come out before their parents to colleagues and even defend their case.

Other, corporations have jumped onto the celebrating queerness bandwagon over the last year. Whether they come from a purely commercial perspective, there are more organizations either openly supporting queer rights in their workplaces or paying for events and advertising, and supporting causes like the pride march and so on. Thirdly, from what I've seen, blackmailing was always a cause of fear for queer people particularly gay men. Now the specter has gone away since judgment. The fourth is, there's a lot more talk about it. It's become more common, not only in the media but among peers and colleagues as well and the decision has had an impact on multiple levels


CONCLUSION

This will mark the end of an period in which this legislation will no longer be available for use or misuse to promote, encourage or maintain an environment conducive to abuses of human rights of a certain nature, and will bring an end to the discrimination that many millions have experienced for so many years now due to their sexual orientation or gender identity. India now joins a proud league of nations that accepts gender identity and sexual orientation as real freedoms. This Supreme Court ruling will not only affect India but will undoubtedly also have enormous transnational value. Particularly in other common law countries, the effect of this decision is likely to be felt and it will hopefully provide an incentive to other countries that do have analogous provisions in their statute books to critically examine the validity and legitimacy of laws that still criminalize consensual sexual relations.

There's always to be real and total equality. We can say we have achieved independence, absolutely, only when everyone, honestly and wholeheartedly in India, believes that no one is 'different.' The belief that everybody is equal is sacrosanct, and it's really uncomplex in heart, that everyone should love equally, freely and without fear. The day we can convince every one of us that we have always earned our freedom.






[1] https://www.indiatoday.in/mail-today/story/even-as-lgbtq-celebrate-landmark-supreme-court-verdict-social-challenges-may-stay-1334101-2018-09-07 [2] https://www.indiatoday.in/mail-today/story/even-as-lgbtq-celebrate-landmark-supreme-court-verdict-social-challenges-may-stay-1334101-2018-09-07 [3] Navtej Singh Johar v. Union of India [4] https://timesofindia.indiatimes.com/blogs/toi-edit-page/one-year-after-freedom-how-are-lgbts-faring-today-since-section-377-was-struck-down-by-the-supreme-court/ [5] https://www.livemint.com/Leisure/o5TVfO7DY1vrs75aY94BTP/Life-after-Section-377.html [6] https://timesofindia.indiatimes.com/business/india-business/cos-look-to-extend-perks-to-lgbtq-staff/articleshow/65712312.cms

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