ABSTRACT
This article talks about the LGBT community their rights,problems faced by them in daily life. It also states what section 377 is. Gay, lesbian, transgender, bisexual they all are part of this community. Sexuality is a God-givengift; humans have no control over it. Here we discuss pain, curse, torture faced by them. Society corners them on the basis of their sexuality and sees them asquestionable characters. LGBTQ cites lesbian, gay, bisexual, transgender, and Q stand for people of questionable sexuality or who identify as queer. What do all these means? lesbian word use for women having sexual relations with their same sexuality. Gay is a relationship of homosexual people, sexual relationship with their same-sex. Transgenders these people have gender identity or behavior which differs from the sex which they get from birth. Bisexual is sexual attraction towards both gender male and female.
The rainbow flag which we also call the gay pride flag or LGBT pride flag is a symbol of lesbian, gay, transgender, bisexual, transgender, and queer (LGBTQ). Baker saw the rainbow as a natural flag, so he chooses its color for the strips of the flag. each color has its own meaning (hot pink for sex, red for life, orange for healing, yellow for sunlight, green for nature, turquoise for art, indigo for harmony, and violet for spirit)[1].
HOMOSEXUALITY: IS IT A CRIME?
INTRODUCTION
Do you know 80% majority of homosexual people out there hide their sexuality[2]? Whether they are gay, lesbian, bisexual they pretend to be straight and end up marrying a person of sex for whom they don’t even have feelings. Why they do so? I think somewhere inside we all know the answer. But no one found any need to solve this problem. The term becomes a very controversial topic. To understand this, we have to learn its meaning, it’s a characteristic where a person is romantically, sexually attracted to same-sex. It came from the Greek word homo meaning same.[3]People are comfortable with their same-sex and develop a feeling for them. The section talks about homosexuality in India is 377. It constitutionally criminalizes relationships of the same-sex in the country. Only making of law not going to make sense until the mentality of people innovates. In India, people call homosexuality an imported or American disease. To be very clear it’s not a disease at all, in laymen’s language it’s a feeling where a person attracts towards someone of the same sex, and it’s normal. One has no control over it.
We are living in a society where every gender is provided a role and they have to perform according to them, being a man or woman holds meaning in society. And another aspect of the meaning is that if you are a man you have to fall for a woman only. The only motive in our society is to get married have babies but no one talking about happiness or love. And if someone tries to do something which is against the theory given by society, people start discriminating against him and ask weird questions. There are tons of questions asked to gay or lesbians few of them are: how do you become gay? Is being gay contagious? Why don’t you just become un-gay? No one asks these senseless questions to a heterosexual person.I guess this is high time to stop discriminating against people for their sexuality.
What section 377 in The Indian Penal Court talks about
- Unnatural offenses. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.[4]
In simple words, section 377 criminalizes any form of homosexual acts. This was introduced during the British era in 1860 in India by Lord Macauley. This clause state that any intercourse of sex that is against nature is offensive. Hence the person having homosexual relations is liable to a pay fine and punishment of imprisonment which may extend to ten years. Section 377 turns out to be a constitutional way to discriminate against LGBT (lesbian, gay, bisexual, transgender) community. Section 377 was often used to harass, blackmail, and criminalize homosexuals. This result in psychological problem among these people. It considers all homosexual as sexual deprave and defame theirdignity. it also said that the Indian culture act does not support such activities. But in Indian art or Khajuraho temple postures of homosexuality portray. Therefore, it would be wrong to say homosexuality.
LEADING CASE LAW
1. NAZ FOUNDATION CASE 2019
The First case is Naz Foundation vs Govt. of NCT Delhi, NAZ foundation is an NGO which deal with HIV, AIDS, and other health issues. The Question raised in this case is should we remove section 377. The Court mention two aspects in this case first are article 21 (right to life) and another is article 14 & 15 (right to equality). The court said section 377 violate article 14 because it causes unreasonable discrimination and discriminates against homosexuals as a class. And another important argument is according to article 15discrimination based on sex is prohibited (including sexual orientation). In 2019 Delhi high court announces part of section 377 unconstitutional which criminalizes homosexuality.
- SURESH KUMAR KOSHAL V, NAZ FOUNDATION
This case raises an argument stating that Article 15 (Right to privacy) will not cover homosexuality. This judgment put people in trouble who start disclosing their identity and were expressing their sexual orientation. Since they were seen as a criminal.
- NLSA V. UNION OF INDIA & ORS
Loophole came in front from this was, our constitution protects right of only binary gender (male or female) andno provision for the transgender community it cons equate discrimination. Recognizing this loophole supreme court recognizes multifaced rights of the transgender community:
- Article 14 protects the rights of every person including men, women, and transgender.
- Article 15 & 16 prohibited gender discrimination. Thus, discrimination based on sexual orientation violates these articles.
- Under Article 19 (1)(a) right of privacy, gender indemnity integrity is protected.
- Right to live with dignity choose the right to gender identity.
This case legally recognizes the self-identity and gender identity of the transgender community.
- PUTTASWAMY CASE 2017 (PRIVACY CASE)
Justice K.S. Puttaswamy v. Union of India,supreme court rectify the blunder of Suresh Kumar Koushal case. Justice Chandrachud said sexual orientation is an essential attribute of privacy and it is protected by various articles of section three of our constitution.
- NAVTEJ SINGH JOHAR V. UNION OF INDIA
On 6 September 2018, this case partially declares section 377 as unconstitutional. Five judge constitutional bench consist CJI Dipak Mishra, Indu Malhotra, A.M. Khanwhilkar, Rohinton Nariman, D Y Chandrachud. Said that section 377 cannot restrict the enjoyment of articles 14, 15, 19 & 21 and declare that the transgender community has the right to express their sexual orientation freely.[5]
PROBLEM FACED BY LGBT COMMUNITY IN DAILY LIFE
- Refused to get a room on rent – when people know the person is gay, they refuse to give them room on rent saying it is against their culture and see them as criminals.
- Jokes made on them- in daily life different-different kind of jokes made on homosexual people, hamulate them and affect their mentally very bed.
- Questionable character
- People start cornering the person- colleges, friends start avoiding gay friends by not inviting them into parties, not talking to them. And gay person left with no one to share their thoughts.
- Parents feel shame- not only friends and colleagues but parents also start behaving strangely with them. And took it as a phase that will pass.
- They try to hide/suppress their sexual orientation for the fear of society.
- Society fears push a person towards depression and it ends up making bad decisions.
- The main focus of stereotype people regarding sexuality is reproduction, which is important but only to continue one’s species you can’t take someone’s right to behave according to their sexual orientation. To like someone and have feelings for someone is a person’s private decision which should make without any fear and interference from society.
SAME-SEX MARRIAGE
The supreme court allows the LGBT community to live with dignity, right to privacy which is the fundamental or basic right of the person. And said deciding sexual
orientation is a person’s private matter and the court will not interfere in the same as long it does not result in violation of fundamental rights of other it is citing the court ruling in NavtejSingh johar case. The ruling applied only to a private right of an individual and did not include public right which results in not accepting the marriage of same-sex.[6]
According to Indian society, marriage is only between male and female and any other way of marriage are not tolerable. The court said marriage between two individuals of same-sex is not justifiable under the Indian family unit concept which talks about a husband, wife, and children as a family. Gay marriage does not fall under Indian “sanity” according to which only a biological man and biological female can marry.[7]
The Further court also said, interference with the current marriage laws may result in great destruction of stability in the personal law of the country or it may lead to peculiarities in Christian and Muslim law dealing with marriage. Thus, same-sex marriage cannot be comparable with the Indian law of marriage.
CONCLUSION
Homosexuality is not a new thing that came in the‘20s instead it’s an ancient concept and here since mankind. Wall scripter of temples and books are proof of the same. Various efforts were made to educate people about the actual concepts and to remove myths fromsociety. Chapters added in textbook to teach children about LGBT community from starting so that so more myth will generate. Pride month is celebrated by people representing the rights of homosexual people. Social media play a main role in spreading awareness about the topic.
If every individual starts making even some small efforts, then this generation can normalize a very controversial topic. We can correct people who are spreading myths about homosexuality instead of keeping quiet. The first school of a child is home if we start teaching them the right things from starting and add a gay word with man and women it will come with a great change in thinking.
Instead of making fun of persons sexual orientation and cornering them for their sexuality, we can try to understand their feelings and listen to their views. Through these small changes’ homosexual people can feel comfortable among people and they don’thave to hide their feelings from society. And can save them from taking their life.
[1]Nora Gonzalez; how did a rainbow flag become a symbol of LGBTQ pride?
[2] Colin Poitras, “Majority of world’s lesbian, gay, bisexual, population hide orientation, YSPH study finds”
(June13, 2019)
[3]https://www.webmd.com/sex/what-is-homosexuality
[4]https://indiankanoon.org/doc/1836974/
[5] Priyanka Chakrabarty, she the people the women’s channel, (July 30, 2020)
[6]Sofi Ahsan; center opposes same-sex marriage in Delhi HC, says not comparable with Indian family unit concept’
[7]SamanwayaRautray, ET Bureau; same sex marriages cannot be given legal sanction: government; February 25, 2021
