The Battle isn’t won yet: LGBTQ+ COMMUNITY IN PRESENT TIME
By Anusha Kaul
Section 377 of the Indian Penal Code states –
“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”
According to the meaning of the section if a man and a woman engage in sexual activities which are against the order of nature they will be punished with imprisonment for life and/or fines.
On 6th September 2018, in a remarkable and unanimous verdict, the Supreme court decided to scrap Section 377, which Chief Justice Mishra described as ”irrational, indefensible and manifestly arbitrary”. Three years after the historical judgment, one ends up thinking has India made any progress and been successful in at least implementing the idea of India promised with the release of the verdict?
There is no doubt that the time we live in is the most progressive age of all ages, but we need to understand that this doesn’t mean the struggle for the community has ended. Within the boundaries of family, home and school, acceptance of their sexuality and freedom to openly express their gender choices remains a constant struggle for LGBT people. While urban LGBT voices that are heard through several online and real-world platforms form an essential part of LGBT activism, these expose only a small part of the diverse challenges faced by the community. On the contrary, to date, in some regions of rural India secret honour killings and family-sanctioned corrective rapes are planned in order to deal with the LGBTQ Community.
We need to answer how things have shaped up after the decriminalization of the 158-year-old colonial law?
Ideally, the lives of the people belonging to the community should have been affected in the following spheres:
Right to Health– Under Article 21, the Right to Life is of no use if the Right to Health does not accompany it. But it is a known fact that Individuals belonging to sexual and gender minorities experience denial of care on account of their sexual orientation and gender identity. The Supreme Court also stated that the laws criminalizing same-sex intercourse create social barriers to accessing healthcare and curb the effective prevention and treatment of HIV/AIDS. Hence with the scraping off of 377, healthier life of the community was expected.
Right to Privacy– The verdict called for the Right to Sexual Privacy, founded on the right to autonomy of a free individual. The ruling also confirmed sexual activity between adults and, based on consent, must be viewed as a “natural expression” of human sexual competencies and sensitivities. So once we label it as a natural expression, we aimed to reduce the stigma attached to the act.
Strengthening of Rights of Transgender Persons Bill- The Bill (2014) that talks about granting legal rights to the transgender community will be much more strengthened as Section 377 gave an ambiguous definition of the‟ third sex‟. But now, with 377 gone, many rights would be available to the said community “more meaningfully” – the right to vote, the right to own property, the right to marry, etc.
Mental Health– There is no denying that people went through a lot of torture and trauma when Section 377 existed. But now, after the scraping off the people of the community could seek help for their state of mental health as there is no shame attached to the community in the legal sense. This would give the community more confidence to approach people for help, and hence it will contribute to making lives healthier for the people belonging to the community.
The truth is that even after the decriminalization of Section 377, things haven’t changed much. The attitude of people hasn’t changed drastically. Decriminalization has given the community the confidence they needed at the moment to go ahead in this struggle. Today, a great lack of awareness about the community exists in the country.
As a part of the judgment, the State Governments were held responsible for making sure that the judgment reaches out to every village in the country. However, the reality is that there are still millions of people who don’t know about the community and their struggle. Thus, the state needs to step in to provide the LGBTQ members with a life of dignity.
Many members of LGBTQ organizations believe that there is still a lot to achieve and that this is just the start of a new beginning.