Recent Context:The Delhi High Court directed the Centre to clarify its stance on non-consensual sexual offences against LGBTQIA+ persons and men under the Bharatiya Nyaya Sanhita, 2023 (BNS). The new criminal law came into force on July 1, 2024, and replaced the Indian Penal Code, 1860 (IPC).
-The development has come nearly six years after the Supreme Court in Navtej Singh Johar v. Union of India decriminalised homosexuality by ruling that Section 377 (unnatural offences) of the IPC does not punish people in same-sex relationships. This provision punished anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. Though the SC reinterpreted the provision, Section 377 remained in the text of the IPC until the BNS came into force — where it was deleted entirely.
— On the other hand, Section 377 severely punished non-consensual intercourse “with any man, woman or animal”. Offenders could be punished with imprisonment for life and a fine.
-In 2018, the SC delivered its verdict on the challenge to Section 377. It referred to those areas of the section that criminalised consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”. The court also noted that Section 377 was used as a weapon to harass members of the LGBTQIA+ community, resulting in discrimination against them.
— “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights,” the court said. However, the court clarified that its judgement was limited to decriminalising consensual sex between adults.
— In its 2023 report on the BNS, the Parliamentary Standing Committee on Home Affairs recommended retaining Section 377 in the BNS. It said, “Following this decision (in Navtej Singh Johar), section 377, IPC is now applied to prosecute only non-consensual sexual acts in the Bharatiya Nyaya Sanhita, 2023, no provision for non-consensual sexual offence against male, female, transgender and for bestiality has been made.”
What is Section 377?
1.Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished.”
2.This included private consensual sex between adults of same sex.
After the recent SC judgement, provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.
Judgements Related to Sec. 377:
Navtej Singh Johar vs. Union Of India (2018)
-Decriminalised homosexuality
-Dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalise homosexual sex.
National Legal Services Authority vs Union of India (2014):
-The court declared transgenders as the ‘Third Gender’ and affirmed the fundamental rights guaranteed to them.
-They were also granted reservations in admissions to educational institutions and jobs.
Government Initiatives:
Transgender Persons Act, 2019:
The Act defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
Supreme Court Verdict:
National Legal Services Authority (NALSA) v. Union of India, 2014: The SC declared transgender people to be a ‘third gender’.
Transgender Persons (Protection of Rights) Rules, 2020:
The Central Government made the rules under the powers conferred by the Transgender Persons (Protection of Rights) Act, 2019.
National Portal for Transgender Persons was launched under in consonance with the Transgender Persons (Protection of Rights) Rules, 2020.
Scheme of ‘Shelter Home for Transgender Persons
To provide safe and secure shelter to transgender persons in need, the Ministry of Social Justice and Empowerment is setting up ‘Garima Greh’ shelter homes for them.
Addressing Challenges faced by Transgender/ LGBTQAI+
Addressing the challenges faced by LGBTQ individuals involves a multifaceted approach:
1.Legal Reform: Advocate for and implement policies that ensure equal rights, such as anti-discrimination laws, marriage equality, and legal protections against hate crimes.
2.Education and Awareness: Promote LGBTQ-inclusive education in schools and workplaces to reduce stigma and increase understanding.
3.Support Services: Expand access to LGBTQ-specific support services, including mental health care, counseling, and community resources.
4.Workplace Inclusion: Encourage workplaces to adopt inclusive policies and practices, such as non-discrimination clauses and diversity training.
5.Healthcare Access: Ensure that healthcare services are inclusive and competent, providing necessary care without discrimination.
6.Community Building: Support LGBTQ organizations and initiatives that offer social support, advocacy, and resources.
7.Public Advocacy: Engage in public advocacy and awareness campaigns to shift societal attitudes and reduce prejudice.
8.Combining legal, social, and economic strategies can help create a more inclusive and supportive environment for LGBTQ individuals.