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

[op-ed snap] Freedom’s second coming

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Section 377

Mains level: Decriminalisation of sex between consenting adults and its relation to fundamental as well as human rights


Context

Section 377 verdict

  1. The Supreme Court has decriminalised sex between consenting adults in private under Section 377
  2. Section 377 IPC is irrational, indefensible and arbitrary, the Supreme Court ruled
  3. The sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution
  4. The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights
  5. Respect for individual choice is the very essence of liberty under law

Section 377 wrongly used

  1. Section 377 IPC assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community
  2. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life
  3. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves

Impact of the judgment

  1. It has freed the LGBTQI communities from the yoke of a colonial law
  2. The LGBTQI communities can now walk tall and openly with their heads proud and held high as equal citizens with dignity, liberty and fraternity

Timeline of events

  1. Mx Of Bombay Indian Inhabitant vs M/S. Zy And Another (1997) verdict directed that all HIV positive persons who were functionally fit to do the work could not be denied a job in the state or public sector
  2. Naz Foundation filed the writ petition in the Delhi High Court
  3. It was dismissed by the Delhi High Court on the ground of maintainability
  4. In the challenge to that order, the Supreme Court firmly said that the matter must be decided on merits and not technicalities
  5. Ultimately, the Delhi High Court, in a seminal judgment in Naz Foundation, pronounced the decriminalisation of sex between consenting adults in private
  6. The euphoria of the high court verdict was short lived because the Supreme Court in Suresh Kumar Koushal vs Naz Foundation trumped it
  7. The first blow to Koushal came with the NALSA vs Union of India (2014) judgment which granted gender recognition on a self-identification basis to the transgender communities
  8. The privacy judgment of KS Puttaswamy vs Union of India and Others (2017) held that the treatment of privacy in Koushal was wrong
  9. Navtej Johar vs Union of India case reaffirmed Delhi HC’s verdict of Naz foundation in September 2018 judgment

Challenges on equality and discrimination

  1. The LGBTQI communities in India have not received their rightful share in all spheres of life
  2. They have been discriminated against in employment, in education, services and all other spaces, both in the public and, especially, the private sector
  3. There is no law at the moment which removes this discrimination
  4. Similarly, the law on rape is inadequate to address non-consensual sex other than within the binary of man-woman sex
  5. Such is also the case with sexual harassment

Way Forward

  1. There will be the demand for a same-sex marriage law
  2. Though that may take time, as it has in many other countries, a civil partnership law can easily be brought in as an interim measure
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