Life after decriminalization of section 377 of Indian Penal

Introduction

In India for the growth of culture and identity of the nation Sexuality and Gender plays a very important role. Homosexuality is the most controversial debate amongst feminity or masculinity. Homosexuality means sexual attraction or behavior among the people of the same sex. Homosexual people are generally known as LGBT people. i.e. Lesbians, Gays, Bisexuals, and Transgender. In India, Section 377 of IPC penalizes homosexuality till 2009. Delhi High court in a landmark case named Naz Foundation v. Govt. of NCT Delhi held that section 377 is violating fundamental rights under the Constitution of India. Then in 2013 the Supreme Court of India overruled the Delhi High Court decision and held that Parliament should look into this matter rather than courts. Then finally in Navtej Singh Johar v. Union of India the Supreme Court of India decriminalized section 377 of IPC on the ground right to equality, that criminalizing consensual sex between adults in private was violate the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would violate the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population. In Shakti Vahini v. Union of Indiacourt held that ‘an adult has the right to choose his/her choice.’The objective of this article to analyze the LGBT people with every possible criteria, legal developments for their benefits, India & Stereotyping of People, the role of society, and their life after marriage with the same sex is valid.

THE ROLE OF THE SAMAJ IN FIXING IDEOLOGY/ MORAL POLICING

In India stereotyping of people on the base of gender is very normal. Thus they cannot accept the third gender. Because of this reason, most of the people of the LGBT community witnessed sexual abuse or torture. “Indian cultural values are also being used by disempowered and marginalized groups to counter the ideas of the ‘authentic subject’ that informs dominant cultural essentialism…. There is a need to ensure that the cultural move, which is used to challenge master narratives about Indian cultural values, does not become in turn its own unifying, essentialist, and exclusionary discourse.”In India couples now marrying inter-caste and even religion is not a boundary that’s how norms of Samaj i.e. society is changing. Hence, decriminalize section 377 is probably the biggest win for India. Homosexuals started their fight with society in 1992. Queer people raised their voice against harassment through AIDS Bhedbhav Virodhi Andolan (ABVA). They protested for Gay rights. In 2014, the supreme court of India held in NALSA v. Union of India that Transgender’s rights and freedom in India protected under the Constitution of India. The petitioner of this case has asked for freedom of expression. She wants the world where people accept the LGBT community without fear of violence. In 1996 film named Fire was directed by Deepa Mehta, which was based on lesbians’ relationship. Many controversies have happened with this film which was violated Freedom of Speech and Expression. That’s how Indian morals are changing. In 2020 film named Subh Mangal Zyada Saavdhan is based on gay relationships. If we compare the 1996 and 2020 scenario there is a huge difference. In 1996 people attacked on theater where movie Fire was screen and today people encourage this type of film. That’s how Law can change the morale of people. Law should be framed in accordance with the culture and mindset of people. After decimalization of section 377 people won’t look those feelings of humans as a crime.

SAME SEX MARRIAGE after decrimalization of sec.377

In India, Gandharva Vivah is one type of marriage. In modern times it is known as love marriage. If both parties mutually give consent for marriage then no rituals will be followed still this is a valid type of marriage in ancient India too. There is a popular saying, “Miya biwi razi, toh kya karega Kazi?” Which means (in the context of marriage) when husband and wife are ready then what can judge do? Before the decimalization of section 377, homosexual people were not treated equally in this matter. That’s how the Laws of India did injustice with LGBT people and violated their right of equality. Even if we argue legally, Section 5 of the Hindu Marriage Act deals with conditions for marriage between two Hindus. The list of conditions prohibits bigamy, insanity, marriage not before the age of 21 for the groom and 18 for the bride, and certain kinds of a biological relationship between the two unless these forms are permitted by community customs.[8] This section does not mention the gender of two Hindus. Here interpretation law comes into light. We assume that the groom is biologically male and bride a female. After the decimalization of s.377, homosexuals are getting married without the fear of society, any punishment. This the new era of LGBT communities in India. This the ray of hope rather than fear from society. On September 6, 2018 landmark judgment was delivered by the Supreme Court of India and Justice Indu Malhotra has rightly mentioned in the judgment, “History owes an apology to the members of this community and their families … for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”conclusion With the decriminalization of section 377 of IPC new era for Indian people has started and finally, Indians overcame from Homophobia and Transphobia. Now we should welcome this victory with a happy heart. People of the LGBT community have a voice, they denied to keep silent, and they are not a “minuscule minority”. Through Navtej Singh's judgment, the Supreme Court of India has already proved that all humans are equally treated in India. They do have dignity, self-respect, right to live, right to define, and express themselves. Really ‘Love is Love!’

The author is Dhruvi Anajwala from Gujarat National Law University (3rd Year)

References

1. Indian Penal Code s.377 - 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.
2. Naz Foundation v. Govt. of NCT Delhi [2009] 160 Delhi Law Times 277.
3. Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.
4. Shakti Vahini v. Union of India [2018] 7 SCC 192.
5. Kapur, Ratna 1999, ‘a love song to mongrel selves’, Hybridity, Sexuality and the Law’, Social and legal studies, Vol.8, no.3.
6. ABVA Memorandum to the Commissioner of Police, New Delhi, 11.08.92 on file with the Alternative Law Forum.
7. National Legal Services Authority v. Union of India WP (Civil)
8. Hindu Marriage Act 1955 s.5.
9. Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.