“377 of the Indian constitution”
The constitution of India is the highest Authority of INDIA. An adopted in 26th November 1949 and came into force in 26th January 1950. Constitution lays down structure, procedure, principles, fundamental rights, duties of the citizen along with the duties of the Central Government, state governments. The constitution of India is the lengthiest constitution in the world. The constitution of India declared as a SOVEREIGN, DEMOCRATIC and REPUBLIC. While drafting the Indian constitution , the framers keeping in their mind the needs and condition of the people. The framers borrowed the features from different sources. They borrowed the features from the previously acts like 1861 the indian council act, 1858 the government of India act, 1892 the indian council act ,Indian council act 1935, the indian independence act 1947. The Indian constitution borrowed from GERMANY constitution, U.S. constitution , AUSTRALIA constitution , IRELAND constitution etc. The feature borrowed like parliamentary form of government, fundamental rights,Federal form of government, Judicial Review, single citizenship,an ideas of liberty, equality and federnity etc and incorporated in indian constitution.
In the Indian constitution, there are six fundamental rights, such as right to equality,right to freedom, right against exploitation, right to life, cultural and educational right, right to constitutional remedies and right to privacy.
Out of the many clauses mentioned in the indian constitution that don’t have much relevance to the indian penal code. But one of such clause 377 section under the Indian penal code 1860, “unnatural offence”, whoever voluntarily has carnal intercourse against the order of nature with man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, shall also be liable to fine”.
Which was introduced in 1860 at the time of british government by the “LORD MACAULAY”.
In indian penal code HOMOSEXUALITY is means,like physically,emotional,
psychological , attraction to persons of the same sex.Therefore, particularly target the “ LGBTQ or GLBT COMMUNITY” means (Lesbian,Gay, Bisexual,Transgender and Queer).It may be used for refer to anyone who is NON-HETEROSEXUAL.
First we need to understand what is heterosexual ? Heterosexual means, a person attracted to people of the opposite sex. Boys who like girl, girls/women who like men are called heterosexual. So the LGBTQ community memebers faces the problems like violation of basic human right, harassment and violence. LGBTQ member’s
For the first time, the challenge “NAZ FOUNDATION”, which is non-governmental organisation.Which is work with particularly MSM( male having sex with male).So this NAZ FOUNDATION filed petition to the Delhi High court and stated that because of the section 377 criminalised homosexulity, increases the level of diseases such as HIV and AIDS cases, particularly in case of “MSM”. So required to deletion of section 377, for the treatment of HIV and AIDS patience. This people can’t come out and they can claim their sexuality because of these section. We are not able to track that people and not able to provide proper medical treatment.
In 2009, the landmark judgement , the court said that 377 is an unconstitutional. Why it’s unconstitutional because its infringe the Fundamental Rights which are enjoyed by all the citizens of india. After the verdict of court, immediately came into existence , “ECL” ( Election commission of India) , stated that whiling the paper application or voting in election not required only male or female option but also provide to the transgenders to registrate as “OTHERS”. The declare as the “OTHERS”.So the transgender community has the right to vote .The judgement first taken by Delhi High Court then election commission of india. In 2013 “Suresh kumar koushal and ors. v/s Naz foundation (India),in this cases again criminalised the 377 section of IPC. and In april 2014, the supreme court of India declares and recognises the transgender as a “THIRD GENDER”. Recognition of transgender as “other” is not for social issues or a medical issue but for “HUMAN RIGHTS ISSUE”. This people is also a part of REPUBLIC AND DEMOCRATIC of country of india and must provide the same opportunity and grow up their self as like female and male.So the transgender is fixed by the supreme court. There were one delima that , still prosecuted and imprisonment, If having consensual sex . In the significances of verdict 2016, the dominant view “Gender identity”. The transgender still faces the reaction of the society and the society focused on the what is right and wrong, beautiful and ugly, color, gesture, expression, black, white etc. Supreme court also realised that this gender is coming from backward class. So need an affirmative action.
So provide this people need an opportunity in Reservation in jobs. So supreme court said to take an affirmative policy action regarding this people. Supreme court recognised that the individual gender is the most important aspect of the fundamental of the indian constitution. court focussed on the individual dignity and freedom and self-determination .Given the right to choose the gender and that is mention under the textbook but not given right to choose to whom you love.If choose by the transgender community to whom , they love then that is penalised by the court and in the eyes of law.
Therefor in 2015, the “SHASHI THAROOR”, tried to introduced the bill “PMB”( private member bill). But not allowed to under the table because intolerance in the society. But in February 2016 , the supreme court refers the matter to constitutional bench . Many people that this would be the landmark judgement over the section 377 in the independent india. Many people think that should be decriminalised .
When we r talking about the other countries status regarding the “HOMOSEXUALITY IS LEGAL”, then 124 countries are recognised the homosxuality is legal in their country. At the same time there are 72 countries think that homosexuslity still to be criminalise the same- sex relationship. In some countries, if anybody saw that , that person did the sex with same gender then directly give isonment not death penalty. in some countries if the guy having intercourse with same gender would give death sentence , in some countries , got the information that person is homisexual the give the imprisonment then can allow to marry like in America, Sweden , Caneda, European countries, Australia, norway, etc in that countries people can marry with the same gender. When we are talking about the pakistan countries , there are the direct imprisonment for homosexualit. In some countries there are very strict rule regarding homosexuality.
Lets see the India’s condition till the 2016 there were, people were against the homosexuality because that against the culture and Religion . Let me tell you that in the “RAMAYANA”, there is a mentioned in that , the member of the transgender community. Rama itself grant the blessing with birth and wedding to that transgender. There are so many people and experts against the 377, said it’s unconstitutional. the “kapil sibal”, said that a person’s sexuality is his/her most precious and important private right against the fundamental rights like article 14,
talking about the right to equality to all the citizens of india. Then why discriminate with the “LGBTQ” community article 15 is talking about, No discrimination on the basis of five grounds caste, place of birth, color, sex, etc. There is no point on the sex discrimination. Everybody has the right to do, according to constitution , the most important article that is article 21 “ Right to life”, which is also talking about the right privacy and it’s a fundamental right. No one can infringe the fundamental right of any citizens of the country.
There are case of Aligarh Muslim University , because of the professor was the Gay in the university, and having consexual, adult, gay sex with partner. The professor was the victimised and thrown out of the university. Ultimately he committed suicide. This 377 is not only infringe the people homosexuality but also infringe the privacy of the people. Some people said against the nature and some agree with it. When we are talks about it or see century ago, in the christianity society ,there were sex without purpose and producing child against the nature. At that time sex for fun , enjoyment is against the order of the nature, criminalised and illegal.
When we says that its a secular, socialist, democratic, Republic and independent country then not believe on the christianity society . then people talks about the UNNATURAL ? then supreme court turn the Delhi high court judgement and Decriminalised 377.There are three argument put forward by the supreme court, said that this indian penal code of the section 377 it has been amended 30 times since its enacted,all this amendment not talking the warding of the section. Supreme court remove the 377 by the parliament because parliament has the power to delete or repealed the section . There were disputes regarding the 377, then first argument was the ‘onus on the parliament not courts’, because struck down the ‘NJAC,’second “LGBTQ COMMUNITY’ is the miniscule minority, said that there are no laws for the miniscule minority, third argument of the supreme court is the MISUSE ? that’s the parliament problem not by the court.Supreme court is the guider of the constitution , constitution start with ‘WE THE PEOPLE’, indians is the sovereign, socialist , democratic and Republic . So secular the citizens and give just and justice , provide the opportunity to the citizens. 377 is the violation of LGBTQ COMMUNITY.
State has no Right and should not given the right to enter into the bedroom of two consulting adults. Criminalising consensual sexual activity of an adult is not comes under the government.
Now India join the homosexuality is legal by the Supreme court so decriminalised the gay sex . 125 countries legalised the homosexuality. The supreme court declares the decriminalised consensual intercourse between the persons of the same sex in the landmark case of “NAVJET SINGH v/s UNION OF INDIA” in 2018. Supreme court observed that “orientation of sexual inherent” and its biological phenomena .
So finally “LGBT” community of india get the chance to do sex with same
gender. One important thing is that under the 377, it was punishable intercourse with man, women or Animals that is against the nature but its decriminalised now . important thing said by the supreme court is if any one intercourse with animal ,shall be punishable . Intercourse with animal is not decriminalised its criminalise now also and punishable. Supreme court protected the animal from humans.
The justice khanwilkar chief justice has raised Individual’s Identity. An individual’s is the filament of life. The destruction of individual’s identity would tantamount to crushing the identity,which infringe the privacy of an individual. The Sexual Orientation of each Individual in the society must be protected on an even platform, for right to privacy and protection of sexual orientation lies at the core of the fundamental right guaranteed by the Article 14 (right to equality),15( prohibited discrimination of the basis of any religion, race,caste,sex,place of birth) and Article (no person shall be deprived of his life or his personal liberty except the procedure established by law.) of the indian constitution.
- U.K INSTANCE:- The discrimination of homosexuality came about by the parliament and In India political parties distanced themselves from their causes.
- Movement of get 377 of the indian penal code struck down has not been so male dominate here but so far the greater presence of women .
- In 2013 coalition of Religion group:- the hindu, muslim and christianity came together to reinstate of section 377 and then they succeeded. At that indian shown that india is secular country
- “Merits of this section 377”
- Equality for the LGBT community.
- No violation of any fundamental right like article 14,15 ,19 and 21 of the indian constitution.
- Now it’s became constitutional right.
- LGBT members can live in the society with the normal member.
- They will also get the opportunities in school,colleges and in jobs .
- LGBT members can also claim for their rights and for violation of their consensual homosexuality .
- “Demerits of this section 377”
- If the section is allowed then sexual transmitted diseases like AIDS ,HIV etc , would further spread and harm the people.
- It would lead to big health hazard.
- Decreases the moral values in the society.
- Gay people misuse other people by doing marriage .
I would like conclude that , as we know that our indian constitution is Sovereign, Secular, socialist , democratic , Republic country. As we are living in democratic country ,means “ Of the people, for the people and by the people”. An obvious government has to think for the people and for their development of the society as well as for country . It’s a duty and responsibility of the state, to do welfare for the people. Our framers of constitution borrowed features from the other countries for the people. Because it’s lengthiest constitution so we had 395 articles but now 448 articles in the constitution. There are many clauses in the indian penal code 1860, out of them , not have much relevance to the constitution but the section 377 is relevant to the constitution. Section 377 it was an ‘unnatural offences” before the supreme court judgement but its a decriminalised for the “LGBTQ”.Before 2001 the condition of member LGBT was worse but in 2001 for the first “NAZ Foundation’’ (non-governmental Organisation)
filed a pet court filed petition to the Delhi High court and stated that because of the section 377 criminalised homosexulity ,increases the diseases of HIV and AIDS cases ,particularly in case of “MSM”( male having sex with male). poration of the section of 377 struck down in 2009.But in 2014 the supreme court of india declares and recognise the transgender as a “third gender”, recognition of third gender as “other” it’s not for social issues or medical issues but for “Humain issues”.So this people also are the part of Republic and Democratic of country of india and must provide same opportunity and grow up their self like female and male fixed by supreme court of india . So still there is one dilema that still prosecuted and imprisonment if having consensual sex.
In 2016 the dominant “gender identity” the transgender still facing the reaction of the society on what is right and wrong such as beautiful, white, ugly, gesture, expression etc. The supreme court also realised like that this gender is coming from backward classes so need a affirmative action so supreme court said to take and affirmative policy action regarding this people.
Supreme court focused on individual dignity and freedom and self determination. Therefore In 2015 “Shashi tharoor” try to introduce the bill “PMB” (Private member bill ).This bill was not allowed to under the table because intolerance in the society . But in feb 2016 supreme court refers this matters the constitutional bench.Many people thinking there is landmarks judgement in 377 in independent india, Many people thinking criminalised. Because in many countries the homosexuality is legal,124 countries are recognized the homosexuality is legal in their countries.
At the same time there are 72 countries think that homosexuality still to crimillised the same sex relationship some countries got the information that person is homosexual they give imprisonment not death penalty and some countries if the guy having intercourse with same gender than can allow to marry them like in america, sweden, canada, norway and others european countries.When we are talking about pakistan,there are the direct imprisonment for homosexuality and in some countires there are strict rule regarding homsoexuality.
India’s condition till 2016 there were people agianst the homosexulity because its against nature, culture, and region.
There are a case of aligarh muslim university because of professor was gay in the university and having consensual , adult,gay sex with partner.The professor was the victimise and thrown out the university ultimate committed suicide.
In 2018 the landmark case of “NAVJET SINGH VS UNION OF INDIA “
The supreme court observed that “Orientation of sectional inherent”And its biological phenomena.Supreme court decriminalized consensual intercourse between person of the same sex and read down the section 377 of the indian penal code,thus providing a huge boost to the LGBTQ community of inda . However 72 countries and territories worldwide still continue to criminalised same sex relationship.Important thing said by supreme court in the definition of 377 under ipc if any one intercourse with animals shall be punishable Its not be decriminalised still now supreme court protected the animals from humans beings. The justice khanwilkar chief justice has raised individual identity and individuals filament of a life the distraction of individuals identities would tantamount to crushing the identity which infringe so the privacy offence of individual. There are the merits and demerits of 377 section under the ipc so its mentioned above.there should not be any violation of fundamental right . one more thing that in 26th september 2018, held that Right to privacy is a Fundamental Right under an article 14(Right to Equality), article 19(Right to Freedom) and 21(Right to life with dignity) of indian constitution.So its a personal matter of the person to whom they love or not and intrinsic part of human right and it is mentioned under the UDHR (Universal Declaration of Human Rights).
I want to suggest that , one has to understand that the fight cannot be achieved only through legal amendments. It should be an accompanied by awareness campaigns to educate: parents, teachers and friends. To adopt a health and supportive attitude towards homosexuals.
One thing i want to suggest that Transgender are doing some wrong stuff like clapping and irrelevant action, to gain attention toward them and represent their community.so this kind of action making wrong impact on society,they should prohibited this thing,and there is no need to show they are different from human beings.They should never feel uncomfortable with different gender .They are also human beings.I Want to suggest that prohibited the LGBTQ community,because why the government differentiate that they are different if they are the citizen of india and fundamental right are for them and they all have the right and duty and which are given to the other genders/citizen. By the indian constitution.One point i want to suggest to the legislature /government .
If the children are not straight by birth when we come to know about it,so we/parent/society should not differentiate with that child and LGBTQ community should not interfare ,and for maintaining it government should make a law. Indian society should understand that they are not different and don’t see them like they are different from other human being. To prohibited that culture and Religion that differentiate the human being. All are equal here , God made everyone equal and there should not be any differentiation in human being .