Aryaknath Bhattacharya, a third year Law student of Amity Law School, Kolkata discusses the after effects of the historic judgment that struck down Section 377 of I.P.C.

Introduction

About one and a half years back, the Supreme Court of India decriminalized Section 377 of the Indian Penal Code, a draconian, pre-independence law with a colonial influence which criminalized same-sex relationships between consenting adults. After this section was partially struck down from the penal code by the five-judge bench led by then Chief Justice of India Dipak Misra, it was a happy and cheerful moment for the activists as their plea was acknowledged. Now LGBT individuals were allowed to have consensual intercourse, and they won’t be breaking any laws by doing so.[1]

Issues faced by the LGBT Community 

Now the question that arises is after this section was struck down from the Penal Code, are these individuals from the LGBT community treated as equals? Is the golden triangle of the Indian Constitution really maintained for these people?   

The concept of Human Rights is based on the ground that all humans are equal and will be treated equally. All humans have dignity, and they are to be treated equally. Anything or anyone who undermines that dignity is to be considered to be a violation of that person’s Human Rights. But in our country, it is quite evident that people fail to accept them as equals, even the law fails to treat them as equals. There is a significant deficiency when it comes to the rights of the individuals from the LGBTQ community, like their identity is questioned, their family and upbringing are questioned, they are discriminated while giving them jobs, and they have to face violence while they disclose their preferences.  Today, there is a high percentage of people from the LGBTQ community who tend to hide their identity as they fear to receive hate or violence from their family, friends, colleges, and the employer as the people are still disinclined to accept the concept of LGBTQ in the society. No legal protection is provided to the people of the LGBTQ community in the workplace or to face discrimination.[2]

Suggestion to eradicate the issue: – 

Now the other question that arises is how to lessen the gap or the deficiency of Human Rights faced by these individuals?

The answer to this question is, by informing everyone that it is ok to be an individual of the LGBTQ community, make these socially acceptable. But that is where society is, it will accept the concept of LGBTQ sooner or later, what these community really needs now is legislation which recognizes them the way they are, which protects them from all violence and discrimination, which upholds their Human Rights and makes it a priority that all other laws do the same.

The new legislation must contain certain rights, like the right of the LGBTQ individuals getting married to each other. India does not recognize any statute which talks about marriage between two individuals of same-sex, but the new legislation might change this. We can say that not allowing two people of LGBTQ community to get married is a violation of Article 21 of the Constitution of India, Article 21 speaks about “Right to life and personal liberty”. Then the right of adoption among same-sex or trans couple is mentioned no were in any of the laws in the country; the new legislation should also take this right into consideration while drafting this legislation; they should also mention the capacity of an LGBTQ parent. Then the right to employment is a right that the drafters need to look into while drafting this legislation they must make it clear that discrimination of any sort against these employees will be treated as a punishable offense. There is the right to surrogacy; the Surrogacy Bill, which was passed by the upper house, only takes about conventional couples; they can opt for surrogacy five years after marriage. The Bill excludes the LGBTQ community in this. The legislation also must contain other important topics like divorce, alimony, maintenance, custody of children, and succession should be mentioned and described in such legislation.[3] 

The most important part of such legislation should be equality rights. The people of this community should be treated like any other people in the country. Any act of discrimination on the individuals should be fined or should be sentenced to jail time or should be given both depending upon the grievousness of the act of discrimination. Any authority which is making any rule which is discriminatory to this community should be held illegal.

Conclusion 

Though the scraping down Section 377 of IPC made LGBTQ community legal, the current laws don’t treat them like anything legal. We need laws that will make them equals in the eyes of the law. This legislation will also influence the society to think with an open mind, and hopefully sooner or later, being from LGBTQ will not be considered as a taboo. Every human deserves respect. Every human has rights.

We need to treat every human being as a human being. 


Aryaknath Bhattacharya is a third year Law student from Amity Law School, Kolkata.


[1]Constitutionality of Section 377 IPC, Supreme Court Observer(June 6,2020) https://www.scobserver.in/court-case/section-377-case/plain-english-short-summary-of-judgement 

[2]LGBT Workplace Issues: Why the majority of LGBT workers still hide their identity at work., EVERFI,(June 16, 2020)  https://everfi.com/insights/blog/lgbt-workplace-issues-hide-their-identity/ 

[3]Queer Freedom? A Year After Section 377 Verdict, LGBT Community Still Don’t Have These Rights, News18 (June 6, 2020) https://www.news18.com/news/buzz/queer-freedom-a-year-after-section-377-verdict-lgbt-community-still-dont-have-these-rights-2299373.html

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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