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LGBT acceptance around the country India

People around us get torture because of who they love or like or who they are. LGBTI is basically an acronym for Lesbian, Gay, Bisexual and Transgender Intersex peoples.

LGBTI are being given many rights around the world. In many countries they have every right given but there are many countries where there are still no rights given to them.

In India, after a long battle, they were given rights. The amendments were being made in laws so that they get their right to live equally and respectfully.

In India, the section 377 of Indian penal code deals with the unnatural offences. In this section before any amendment it also contained that having intercourse in same sex was to be considered as unnatural offence. But after the amendment that was made on 6th September 2018, through which the supreme court removed from section 377 of the IPC by legalizing the very old colonial law which criminalized consensual gay sex. And hence legalized the consensual gay sex and was not to be considered as unnatural offence.

History of LGBT's in India

in the late 19th century the term homosexuality was used as morbid sexual passion between members of same sex. And this was considered unnatural. In India it was depicted mainly through images on temple walls, it is also described in ancient books and there were many sacred narratives. In India the concept of modern societal homophobia was introduced and enactment of section 377 was there by British which is stood in the laws. It criminalized anal sex and oral sex under section 377 of Indian Penal Code.

After independence there were cases filed and few non-governmental organizations started to protest against the criminalization of consensual gay sex. As the section 377 stated Unnatural offences- Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or 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.[1]

This used to include the explanation point in which it was stated that the consensual gay sex comes under the unnatural offences.

After many petitions and cases, the supreme court decriminalized the homosexuality and removed the parts of the section 377 of Indian penal code which were violative of rights of the LGBTQ community.

What were the issues involved in the petition?

The issues included the problems of them and the violation of their rights. This includes the violation of their rights under article 14, 15,19,21 which is equality before law; prohibition of discrimination on basis of race, religion, caste, sex, or place of birth; freedom of expression; protection of life and liberty under the constitution. The right to privacy and protection of the sexual orientation lie at the core of fundamental rights which was also violated.

The issue/problem also included the social acceptance and legal rights that lacked in the society for them. The community was also not given adequate access to services in the health system. It was also considered against the moral values of the society.

The legal journey of decriminalizing the homosexuality

There was a very long journey of fighting for the rights of the LGBTQ community. There were landmark judgements that were in favor and against the LGBTQ community. The journey to decriminalize the homosexuality was started in 1994 were the AIDS Bhedbhav Virodhi Andolan, an organization filed the writ petition in Delhi High Court challenging the constitutional validity of section 377, it was the first legal protests against governmental repression of LGBTQ community but later it was dismissed.

The Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi[2] struck off the section 377 of I.P.C. and legalized the consensual homosexual activities between the adults as it was violative of Article 14,15 and 21 of constitution .

The homosexual acts, later were again criminalized in 2013 where the supreme court said that plight of sexual minorities can not be used as the basis of argument for deciding constitutionality of law as it was argued that less than 200 people had been prosecuted under this section in last 150 years. Also the court said that legislature should look into the desirability of deleting the section.[3]

Further in the case of Justice K.S. Puttaswamy v. Union Of India[4], the supreme court ruled that the right to privacy i.e. the fundamental right is basic to life and liberty and this comes under article 21 of constitution and declared that human autonomy is the integral part of right to privacy and has its domain to sexual orientation of individual.

A petition was filed in the same year when the judgement of Suresh Kumar Koushal Case passed that was in 2013. this petition was filed pleading that section 377 violates their fundamental right to life and right to liberty which was snatching their individuality and the petitioners also said that they filed this petition stating that it is not much about sexuality but about the constitutionality of the right to live or to love or to be who they are.

This gave the historical judgement which was decriminalizing the homosexuality[5] and this dismissed the position that LGBTQ community constitute tiny minority and that there is no need to decriminalize homosexual sex which was stated in Suresh Kumar Koushal Case in 2013. And this historic judgement included the five-judge bench who included CJI Dipak Mishra, Justices R. F. Nariman, A. M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. They said that right to privacy is the part of right to life and this fully applies to the LGBTQ community. Therefore, after the very lengthy combat the LGBTQ community got their rights and hence the homosexuality is no more an unnatural offence.

The Impact of decriminalizing the homosexuality

The impact of decriminalizing homosexuality can be seen as by the changing attitude of the society and the families are changing their perspective and accepting their children as who they are. The societies anti-LGBTQ attitude has changed and the world is now accepting the changes and more awareness is being forwarded through education, counselling and many other ways. There is more increase in self-acceptance and confidence is being built up in the people. The people claim that they have improvements in self- awareness, self- confidence, self – acceptance and they also have gained emotional security after the judgement.

The majority of the people has become fearless and more confident, after the judgement they are able to stand for themselves even more confidently and bravely. As earlier police were also generally abusive towards them whether it was verbally or physically but now after judgement it has reduced significantly and this shows that it is a positive sign towards the fact that homosexuality is no more a punishable offense.

The major impact is that the general acceptance of LGBTQ community has increased in the country since the judgement is been passed. With this total acceptance there is gradual process that certainly has changed the perspective of the society and more awareness has been there.

The media has also played a big role in the process as there has been more news about this topic and making the people more aware about accepting the change and to change their thinking and there has been movies made related to section 377 to generate more social awareness and acceptance.

there were many respondents whose families did not use to understand them or to accept them as who they were. The families use to discriminate and there were many others who were even sacred of telling to their families but now after the judgement they are able to gain confidence and tell their families about them and who they love. The families have also starting to accept the change.

Challenges even after decriminalizing
There are still many challenges that need to be overcome which are faced by the LGBTQ community. The biggest challenge ahead is the Same sex marriages, even though the judgement has been passed and consensual gay sex is being decriminalized but the same sex marriages are still not approved in India.

They still cannot marry each other being in India where marriage is the biggest thing the most sacred part of many cultures and the LGBTQ community can still not experience it.
the next challenge could be that they are still not allowed to adopt which means that they could stay together but cannot have the child. This is also one of the major encounters that the people need to go through.

there is still no official data about the LGBT population in India where more than 2 million gay people live and still no official information is in the system about them.
there is still particular law about the LGBT's, there is no law for the case where the protection of transgender people should be done from rape or any other kind of crime. There is online petition submitted for the protection gay men and women but still the law is silent.

Conclusion
This concludes that decriminalizing the homosexuality has ensured the sexual minorities in India a few steps further in living with the dignity. The undoing of the section 377 ensures more confidence among the LGBTQ community which leads to self-confidence and steady growth of the country. this shows that the society is changing and it changes the attitude of the people in general.

Decriminalization has helped in the acceptance by the society and the families of the people. Though there still little bleak in acceptance but it will also improve with time and the further amendments relating to this section and in favor of the community.

Though the judgement has helped the LGBT community in the issue of the discrimination and other aspects but it still needs an anti-discrimination law which would empower them to built productive lives and relationships as there is still petitions which are for the legalization same sex marriages. The government still need to make many changes in order to ensure that LGBTQ community is not denied and public service.

There is still a long road ahead for the transgender people that they need to endure. There will be many challenges in front of them but now after the judgement they will no longer be alone in the fight as the society will also be there with them because the decriminalization has made society open there eyes and support them and help them live there normal lives as every person of the country lives.

With this article I hope that I could help you with what you wanted.

End-Notes:
  1. As mentioned in https://indiankanoon.org/doc/1836974/ as accessed on 06-05-2020.
  2. AIR 2009
  3. Suresh Kumar Koushal v. Naz Foundation AIR 2013
  4. AIR 2017
  5. Navtej Singh Johar vs. Union Of India AIR 2018

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