Abstract
This is a well-written and thorough dissertation about homosexuality’s decriminalisation in India and its influence on the LGBTQIA+ community. The study looks into the origins of homosexuality in India and the impact of British colonialism on the country’s anti-homosexual laws. The article also examines the legal problems encountered by the LGBTQIA+ community in India, such as the writ case filed by the AIDS Bhedbhav Virodhi Andolan contesting the validity of Section 377 of the Indian Penal Code.
The 2018 Supreme Court decision to repeal Section 377 of the Indian Penal Code, which decriminalised homosexuality in India, is the subject of this study. The study explores the implications of this ruling on India’s LGBTQIA+ population as well as shifting perceptions towards homosexuality. The report includes various research on changing attitudes towards homosexuality in India following the Section 377 decision in 2018.
Overall, this study gives a complete analysis of the legalisation of homosexuality in India and its influence on the LGBTQIA+ community. The work is well-researched and well-written, and the inclusion of secondary sources lends credence to the study’s assertions.
Keywords
Section 377 IPC, LGBTQIA+ Rights, Homosexuality, Community Rights, Decriminalization, Judicial Reforms, Discrimination
Introduction
As they say “The most important thing in life is to learn how to give out love, and to let it come in.” Being homosexual is being attracted to others of the same sex or gender on an emotional, romantic, or sexual level. Recently homosexuality was finally identified as a sexual preference rather than something deviant and against to nature. Prior to that, it was recognized as a mental disease.The Indian Penal Code’s Section 377 was declared unlawful by the Supreme Court in 2018, decriminalising homosexuality, making it a historic judgement for India. Invalidating a legislation that had been used to discriminate against the LGBTQAI+ community for more than 150 years, this ruling was a huge triumph for this group.
The decision generated intense debates and discussions about how Indian society is evolving its views on homosexuality and the LGBTQAI+ community. While many people applauded the decision, others disagreed, citing moral and cultural principles. However, there has been a discernible change in views towards the LGBTQAI+ community since the ruling, with more individuals loving and accepting them.
After the Section 377 ruling, it is important to examine how attitudes towards homosexuality and the LGBTQIA+ community have changed in India. It will look at the variables, such as education, media representation, and social activism, that have affected these developments.
By exposing the struggles encountered by LGBTQ+ persons and their experiences, the media significantly contributed to the shift in public opinion. Social media websites were very helpful in raising awareness and fostering acceptance. Many areas of the country still tolerate discrimination, harassment, and violence against LGBTQ persons, and some people have unfavourable views about the group.
It’s crucial to keep in mind that altering the legislation does not always alter society attitudes and views. To transform deeply ingrained views towards marginalised populations, it takes time and commitment. Promoting acceptance and understanding of the LGBTQ population may be aided through education, awareness-raising campaigns, and initiatives that support inclusiveness and diversity.[1]
Research Methodology
This descriptive paper uses secondary sources to conduct a thorough investigation of how people’s opinions have changed in the wake of the section 377 ruling. For the study, secondary sources of information such as newspapers, journals, and websites are employed.
Research Literature
Several studies on shifting views towards homosexuality in India have been undertaken, notably since the Section 377 judgement in 2018. According to S. Srinivasan and A. Bedi’s (2019) study “Attitudes towards homosexuality in India: Examining the Role of Traditional and Modern Values,” individuals who hold more modern values are more likely to have [2]positive attitudes towards homosexuality, while those who hold more traditional values are more likely to have negative attitudes.
Another research, “Changing Attitudes Towards Homosexuality in India: Exploring the Role of Traditional and New Media,” by K. Mukherjee and S. Chakraborty (2020),[3] looked at the influence of traditional and new media on attitudes towards homosexuality. According to the study, exposure to conventional media like television and newspapers is connected with more unfavourable attitudes about homosexuality, but exposure to new media like social media and the internet is associated with more positive opinions.[4]
S. Dey and S. Chatterjee’s (2019) study, “India’s Section 377 Verdict and the Changing Attitudes Towards Homosexuality,” looked especially at the influence of the Section 377 verdict on attitudes towards homosexuality in India. The judgement was related with a [5]considerable increase in favourable sentiments towards homosexuality, particularly among younger, more educated, and metropolitan individuals, according to the study.
Taken together, these findings indicate that there has been a trend in India towards more favourable attitudes about homosexuality, particularly among those with more contemporary values and greater exposure to new media. The Section 377 ruling has also had a substantial influence on attitudes towards homosexuality, with younger, more educated, and urban groups showing more favourable sentiments. Traditional values and the media, on the other hand, continue to affect unfavourable attitudes towards homosexuality in some areas of Indian society.
What does Indian Penal Code Section 377 entail?
Section 377 of the IPC is a colonial-era law that criminalized consensual sexual activities between same-sex couples, it deals with “unnatural offenses”. The law was enacted in 1861, during the British colonial rule in India, and was based on Victorian-era morality that views homosexuality as a crime against the order of nature.
Sexual activities “against the order of nature” were punished by imprisonment for life under Section 377. This law not only criminalised same-sex partnerships, but it also made India’s LGBTQ+ community unpleasant and intolerant.
However, the Indian Supreme Court declared Section 377 unconstitutional in 2018. The verdict represented a major victory for India’s LGBTQ+ community, as it recognised their right to live with dignity and respect, free of discrimination.
The abolition of Section 377 was a significant step forward in recognising LGBTQ+ rights in India, paving the door for a more inclusive and accepting society. Despite the legal triumph, the LGBTQ+ population in India continues to confront societal stigma and prejudice, and there is still more work to be done to establish full equality and acceptance for all.
History of LGBTQIA+ Community in India
India has a long and complex history of attitudes towards homosexuality that spans back to ancient times. In pre-colonial India, homosexuality was often accepted and celebrated, appearing in ancient texts such as Kama Sutra in 400 BCE, In Kothi community in Bengal there was recognition of men who took feminine gender roles and sexual identities, it was seen that in India the LGBTQ community had a recognition in the society and was part of the culture and religion as well. However, with the arrival of British Colonialism, the laws began to be put in place that criminalized homosexual acts and the western ideas about gender and sexuality also had a significant impact on Indian society.
The British administration adopted and codified Section 377 of the Indian Penal Code in 1861, this law effectively criminalized same-sex sexual activity and created a legal basis for discrimination and persecution of LGBTQ individuals, the community in India has fought for their legal rights and acceptance. There has been progress in recent years towards the acceptance of homosexuality in the mindset of people after the society has welcomed and celebrated the decision by India’s Supreme Court in 2018 of overturning Section 377.
The term homosexuality was first used to describe pathological sexual desire between people of the same sex in the late 19th century. And it was thought to be abnormal. It was mostly painted on temple walls in India, but it was also documented there were additional religious legends in classical literature. The British established the idea of contemporary societal homophobia in India by enacting section 377, which is now a part of the legislation. Section 377 of the Indian Penal Code made anal and oral sex crimes.
Following independence, prosecutions were brought, and a few non-governmental organisations began to fight the prohibition of consenting homosexual intercourse. Unnatural offences: According to Section 377, anyone who willingly engages in sexual activity with a human, a female, or an animal in violation of nature’s laws is subject to a sentence of life in prison or a term of up to ten years in prison, as well as a fine.
Journey of decriminalisation of Section 377 of The Indian Penal Code
The struggle for the rights of the LGBTQ people has been highly protracted. There have been important rulings both for and against the LGBTQ community. In 1994, a group known as the AIDS Bhedbhav Virodhi Andolan petitioned the Delhi High Court to declare Section 377 of the Indian Penal Code, 1860, unconstitutional. This was the first official legal protest against the suppression of the LGBTQ community by the government, but the petition was later dismissed, which marked the beginning of the journey to decriminalise homosexuality.
The Supreme Court ruled in 2013 that the misery of sexual minorities could not be used as the foundation of an argument to determine the validity of the statute because fewer than 200 persons had been charged under this clause in the previous 150 years. This led to the criminalization of homosexual conduct being reinstated. The court further ruled that the legislature should consider whether it would be advantageous to delete the section. (Suresh Kumar Koushal v. Naz Foundation, 2013)5
Further, in the case of Justice K.S. Puttaswamy v. Union of India, the Supreme Court of India declared that Article 21 of the Indian Constitution protects the basic right to privacy, which is necessary for life and liberty. It further ruled that a crucial aspect of the right to privacy is human autonomy, which has a specific application to sexual orientation.
A petition was submitted in 2013, the same year that the Suresh Kumar Koushal Case ruling was rendered. According to the applicants, Section 377 breaches their basic rights to life and liberty and robs them of their individuality. They also claim that the petition is less about sexual orientation than it is about the constitutionality of their ability to live, love, and be who they are.
It was the day the Indian judiciary showed that everyone has the right to live their lives as they like, regardless of gender. #LoveIsLove was trending on twitter showed that many were happy and enjoying the occasion, and rainbow flags were flying. On September 6, when a ban on gay intercourse enacted during the colonial era was repealed by the Supreme Court of India, excitement knew no bounds. Section 377 was discussed by a five-judge constitution panel, led by Chief Justice Dipak Mishra.
This rendered the historical decision that decriminalised homosexuality (Navtej Singh Johar vs. Union Of India, 2018) [6] and rejected the argument that the LGBTQ population only makes up a small minority and that decriminalising gay intercourse is not necessary, which was made in the Suresh Kumar Koushal Case in 2013. Additionally, the five-judge panel that rendered this historic decision was comprised of Chief Justice Dipak Mishra, Justices R. F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud, and Indu Malhotra. The LGBTQ community is completely covered by the claim that the right to privacy is a component of the right to life. As a result, after a protracted battle, the LGBTQ community gained its rights, and homosexuality is no longer a crime against nature.
Societal Acceptance LGBTQIA+ Community
The societal outlook of Section 377 which represented the whole LGBTQ community in India has undergone significant changes over the course of time, the progress has been slow, and scattered mostly amongst rural communities in India.
The 2018 landmark verdict by the Indian Supreme Court that overturned Section 377 of the Indian Penal Code, effectively decriminalizing homosexuality in India, marked a significant step towards the societal acceptance of homosexuality in India.
The verdict struck down the colonial-era law that made it unlawful for people of the same sex to engage in consensual sexual activity with one another. This law also provided a platform for social and legal reforms that addressed the deeply embedded prejudice and discrimination against the LGBTQ+ population in India. Despite the legal victory, cultural and societal norms still pose significant barriers for LGBTQ+ individuals in India to live openly without facing discrimination Despite this progress, societal acceptance of homosexuality in India is still a work in progress. (Nigudkar & Wandrekar, 2019) While the legal recognition of LGBTQ+ rights in India has taken a significant leap forward, cultural, and societal norms continue to pose challenges. One of the biggest challenges is that conservative values and beliefs regarding gender roles, sexuality, and marriage prevail in many parts of Indian society. Such conservative values and beliefs are often rooted in cultural, traditional, or religious ideologies that prioritize heteronormative identities which lead to marginalisation of LGBTQ+ individuals. Moreover, the lack of representation and inclusion in mainstream media and popular culture also perpetuates negative stereotypes about LGBTQ+ individuals. However, it is important to acknowledge that there has been progress towards societal acceptance of homosexuality in India. Focusing on the miles Indian society has travelled in accepting the recently decriminalized law I will be focusing on few developments.
- Two Lawyers who worked to repeal Section 377 disclosed their relationship. When section 377 was decriminalised on September 6, it wasn’t only a triumph for the country; it was also a triumph for this legal couple personally. Since their basic rights were restored, as well as those of members of the LGBTQ community nationwide, the two public interest litigators have been battling to repeal the retrograde statute.
- Dutee Chand, the Asian Games gold medallist, disclosed having a same-sex relationship. She spoke out in support of all the people’s rights to be in the same-sex relationship and their choice.
- After the said verdict, there were many institutions that brought changes in themselves to incorporate and make the community comfortable, recentlyTISS in Mumbai raised the bar high by opening a hostel that is open to both genders. The Tata Institute of Social Sciences established a precedent by living up to its ideals and demonstrating its support for the neighbourhood. On its grounds, a gender-neutral hostel opened up, making it the first such location in Mumbai. The Rajiv Gandhi National University of Law, Patiala was the first institute in India to introduce gender-neutral washrooms in its premises.
To acknowledge their identities and provide a safe space to express that.
- Kerala invited Padma Lakshmi to register as an advocate with the state’s Bar Council; the country had its first transgender attorney. She received one of the 1,500 certificates for bar enrollment given to law graduates. She was congratulated by Mr. P Rajeev, the Ministers for Industries, law, and Coir in the Government of Kerala, and was praised for their achievements by Joyita Mondal, who became India’s first transgender judge, on social media in West Bengal in 2017. This move came because of the growing acceptance in societal space for the LGBTQ community.
- Sanjana Singh was the first transgender person to be hired by the government of Madhya Pradesh. She has been appointed as the Personal Secretary to Krishna Gopal Tiwari, Director of the Department of Social Justice and Disabled Welfare (DSJDW) of the Madhya Pradesh government. After the Section 377 ruling, a lot has changed, but the LGBTQIA+ community still has a long way to go. Before everything else, as humans, we must provide them with the assistance they require and deserve. After all, the hashtag #LoveIsLove.
Challenges Faced By LGBTQIA+ Community After the Verdict
The Indian Supreme Court’s decriminalisation of homosexuality in 2018 was a big triumph for India’s LGBTQIA+ population. Despite this historic judgement, the group continues to encounter several obstacles that prevent them from fully participating in society.
One of the most significant difficulties confronting India’s LGBTQIA+ population is a lack of legal protection and acknowledgment. While the Supreme Court’s decision invalidated Section 377 of the Indian Penal Code, which criminalised homosexuality, there is currently no legislation protecting the rights of LGBTQIA+ people. As a result, individuals encounter discrimination and prejudice in a variety of areas of life, including as work, education, healthcare, and housing.[7]
Another major issue confronting the group is societal shame and prejudice. Despite evolving attitudes towards homosexuality, homophobia and transphobia remain pervasive in India. Many LGBTQIA+ people experience bullying, harassment, and assault, and they frequently struggle to be accepted by their families and communities. Discrimination and stigma can result in social marginalization, mental health issues, and even suicide.
Another issue that the LGBTQIA+ population has is a lack of access to healthcare and support services. Many people are unable to get basic health treatments owing to prejudice, and there is a scarcity of healthcare services that cater to the special needs of LGBTQIA+ people. The lack of support services such as counselling and legal assistance exacerbates these difficulties.
In conclusion, while homosexuality was decriminalised in India, the LGBTQIA+ community still suffers enormous obstacles. There is a lack of legal protection and recognition, as well as societal shame and prejudice, as well as restricted access to healthcare and support services. Addressing these issues would need ongoing activism and policy interventions to guarantee that LGBTQIA+ people in India may live with dignity, equality, and inclusion.
Suggestion And Conclusion
Finally, the decriminalisation of homosexuality in 2018 through the invalidation of Section 377 was a watershed point in Indian history. It was a watershed moment in the lengthy campaign for equal rights for the LGBTQIA+ community, which had faced discrimination and criminalization for over 150 years. The ruling was welcomed with both pleasure and outrage, revealing India’s polarised sentiments towards homosexuality. However, studies show that the verdict has had a favourable influence on perceptions towards the LGBTQIA+ population, particularly among younger, more educated, and urban residents.
From ancient times, India has had a complicated history of attitudes towards homosexuality. While homosexuality was tolerated in pre-colonial India, British colonisation and Western concepts about gender and sexuality had a considerable influence on Indian culture. Despite legal hurdles and persecution, the LGBTQIA+ community and their allies fought for their rights, culminating in the landmark Section 377 ruling.
While the decriminalisation of homosexuality was a huge step towards equality, much more work need to be done to properly recognise and safeguard the LGBTQIA+ community’s rights. Discrimination, stigma, and violence against them persist, especially in rural communities where traditional attitudes predominate. Education and knowledge are critical in fostering acceptance and tolerance, especially among those who hold more conventional views.
In conclusion, the invalidation of Section 377 was a watershed moment for the LGBTQIA+ community, proving that love is love and that everyone has the freedom to live their lives as they see fit. It is anticipated that the good movement in community views will continue, resulting in a more welcoming and inclusive society for all.
Author – Anisha Sharma
College- Lloyd Law College
[1] The times of India, https://timesofindia.indiatimes.com ( April 6, 2023 )
[2]2 S. Srinivasan & A. Bedi, Attitudes towards homosexuality in India: Examining the Role of Traditional and Modern Values, 45 Int’l J. Soc. Psychiatry 547 (2019).
[3]3 K. Mukherjee & S. Chakraborty, Changing Attitudes Towards Homosexuality in India: Exploring the Role of Traditional and New Media, 44 J. Homosexuality 1653 (2020).
[4]4 R. Bhandari & P. Kakkar, Changing Attitudes towards Homosexuality in India: A Study of Educated Youth, 10 J. Indian Anthropological Soc’y 107 (2019).
[6]7 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
[7] The Hindu, https://www.thehindu.com , (April 11, 2023)