LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Beyond Section 377


Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level:  Section 377

Mains level: The newscard highlights the issue of India’s sexual minorities that need not only decriminalization but rights and protections.


Same-gender sex

  1. It remains a crime in the country ever since the constitutional validity of Section 377 of the IPC was upheld in Suresh Kumar Koushal (2013) Case
  2. What is Section 377: It criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community(lesbian, gay, bisexual, transgender, queer, intersex)

Reconsideration by Supreme Court

  1. The Supreme Court is presently hearing a clutch of petitions to strike down Indian Penal Code Section 377, which criminalises same-sex relations between two consenting adults in private
  2. One of the lowest moments for human rights in India came in 2013 when the Supreme Court reversed the progressive 2009 judgment of the Delhi High Court reading down Section 377.
  3. Though supportive in its initial observations, surprisingly, the Supreme Court has also said that it will concern itself only “with the question of the validity of Section 377, and examine the correctness of the Supreme Court’s 2013 judgment”.

Old judgement, defies Constitutional Validity

  1. This reconsideration tries to interpret a broader human rights and justice issue as a matter of pure constitutional validity.
  2. The law is not abstract and it’s important to consider how insufficient law impacts the lived experiences of human beings.
  3. Instead of focusing on the question of validity alone, the Court also needs to concern itself with how current laws impact the lives of the LGBTQI community.
  4. This judgment stands as a reminder that rights that ensure inclusiveness, equality, and freedom are the fundamental values of this republic.

Court favors Individual Privacy: Puttaswamy vs. Union of India Case

  1. There is also the matter of the Court’s own precedent in another recent ruling — one that found in favour of individual privacy — in the case of Puttaswamy vs. Union of India which terms “sexual orientation” an essential attribute of “identity” and “privacy”.
  2. It terms discrimination on the basis of sexual orientation as deeply offensive to the “dignity and self-worth of the individual”.
  3. It terms the rights of India’s sexual minorities as those “founded on sound constitutional doctrine” effectively making Section 377 unsustainable.
  4. In principle, it maintains that sexual orientation must be protected and lies at the heart of the fundamental rights guaranteed by the Constitution under Articles 14, 15 and 21.

Freedom in the absence of protection

  1. Court needs to expand the ambit of this discussion to include other issues such as the right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination, and so on.
  2. Instead of merely considering the petition as a narrow legal matter, it should examine the issue from the perspective of an institution that is committed towards ensuring equality for all.
  3. Without these rights, sexual minorities will continue to face unequal treatment, abuse, discrimination in workplaces and housing, violence, and denial of recognition.
  4. The Court should also consider closely the fact that individual dignity and freedom cannot be achieved without equal rights.

Battling Patriarchy

  1. There is sufficient evidence to show that suicide rates are higher among sexual minorities.
  2. Moreover, this lack of rights and protections feeds a homophobic culture that overemphasises and further empowers patriarchy and masculinity.
  3. Because of widespread homophobia, gay men and women create and inhabit sub-cultures of self-hate, internalised homophobia, and oppression.
  4. Public health evidence also indicates a clear relationship of a lack of social acceptance and legal rights with substance abuse, violence, isolation, and mental illness.

Way Forward

  1. A rights-based framework is intricately tied up with India’s quest for social and economic development.
  2. It’s time the Court recognised that India’s sexual minorities need not only decriminalization but rights and protections that help them build productive lives and relationships irrespective of gender identity or sexual orientation.
  3. They need an anti-discrimination law that empowers them and places the onus on the state and society to change.
Notify of
Inline Feedbacks
View all comments