LGBT : Section 377 Timeline

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Section 377

  • Section 377 of IPC – which came into force in 1862 – defines unnatural offences.
  • It says, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

 

2009 Judgement (Delhi HC)

  • Following a PIL by Delhi-based Naz Foundation, an NGO fighting for gay rights, the Delhi HC on July 3, 2009, struck down Section 377 of the IPC, holding that it violated the fundamental rights of life and liberty and the right to equality as guaranteed in the Constitution.
  • The HC held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.

 

2013 Judgement (SC)

  • The Supreme Court reversed the 2009 HC verdict in December 2013 and upheld the constitutional validity of Section 377 of IPC, while giving the power to the legislature to formulate a law on homosexuality.
  • It observed that only a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.

 

2014 order (Transgenders)

  • In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a ‘third gender’ along with male and female.
  • It also asked the Centre to include them in the OBC quota.
  • Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.
  • The Transgender Persons (Protection of Rights) Bill, 2016 was a result of this order.

 

2017 verdict on Right to Privacy (SC) (Puttuswamy judgement)

  • In August 2017, the Supreme Court, in a landmark verdict, declared right to privacy a fundamental right, ushering in hope for the gay and LGBT community.
  • The apex court had concluded that privacy included at its core the preservation of personal intimacies and that sexual orientation was an essential attribute of privacy.
  • Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
  • Equality demands that the sexual orientation of each individual in society must be protected on an even platform.
  • The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

 

2018 Sc Verdict: Section 377 unconstitutional

  • A five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender and Queer) to forgive history for subjecting it to brutal suppression.
  • Bench unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
  • Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377

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Transgender : Issues and demands

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Facts:

  • Things are changing. Example: Delhi government has  decided to introduce the ‘transgender’ category in forms for registration of birth and death certificates
  • SC has clarified to the Centre that lesbians, gays and bisexual persons does not come under the category of transgenders
  • While in 2014, based on the Census, five million acknowledged their transgender status, activists say their number could be much higher.
  • Over 66% of them live in the rural areas. The Census data also highlighted the low literacy level in the community, just 46% in comparison to the general population’s 74%.
  • In 2014, the Supreme Court in National Legal Services Authority v. Union of India pointed out that reservation is one of the time-tested ways of enabling historically disadvantaged populations to join the mainstream.

Concerns:

  • The community has laid stress on the point that for them, dignity, respect, and access to health care are non-negotiable basic rights.
  • Self-identification should be the sole criterion for gender recognition legally without the need of any other psychological, medical, or “expert” intervention.
  • Self-declared identity should also form the basis for access to social security benefits and entitlements.
  • The community maintains that the basic principle of “nothing about us, without us” must be applied for all trans and hijra rights, health and welfare activities.
  • The community has rejected the setting up of district screening committees to recognize transgender persons as they say they are not objects or people with a contagious disease who need to be medically screened.
  • Their argument is that a medical assessment violates their right to self-identification and gender autonomy which are protected under the right to life and personal liberty guaranteed by the Constitution.

The Kochi Metro example

  • Will the Bill have provisions to protect them from discrimination? The experience so far has been that many who struggle to access jobs are discriminated against, forcing them to drop out.
  • For example, in May, when the Kochi Metro Rail Limited formally employed 23 transgender persons, eight of them dropped out after being unable to find suitable accommodation based on the monthly wages they drew (between Rs. 9,000 and Rs. 15,000). Many households were unwilling to let out their houses to them. They faced other forms of discrimination too.
  • Therefore, an effective enforcement mechanism is vital for the adjudication of anti-discrimination claims brought forward by transgender persons.

Stigma and discrimination

  • Accessing even the rights they already have is not easy. For example, even in an enlightened city such as Mumbai, young transgender persons seeking admission to college approach the transgender group leader, normally a person with clout, who then meets the college principal and, in most cases, secures their admission. Thereafter, the transgender person has to be on “best behaviour” and not stand out as that could compromise the admission.
  • Hopefully the Bill will provide protection to transgender persons from violence and stigma which is a major factor. Often they are denied passage in public spaces and harmed or injured.
  • The hijra community, especially those who are a part of the ‘guru-chela’ structure in Hijra gharanas and practise the traditions of “mangti” and “badhai”, are often harassed, detained under begging prohibition laws, and forced into begging homes.
  • In the case of transgender children, their families, unable to accept their status, subject them to domestic violence, which often compels these children to leave home.
  • Though several transgender persons have made a mark in the beauty and fashion industry, joined the police force, the academic world and even the Indian Navy, there is need for a comprehensive survey on the socio-economic status of the community.
  • Transgender welfare boards are needed in different States. Transgender persons should take part in the national Census to generate accurate data.

Recognizing their Identity

  • Transgender identity is not yet recognised in criminal law, whether as the third gender or as a self-identified male or female.
  • There is also no clarity on the application of gender-specific laws to transgender persons. Section 377 of the Indian Penal Code is applicable to transgender persons (i.e., those who were male at birth). This amounts to double persecution.
  • Finally, the community wants mental health counselling support and free gender transition surgery facilities in government hospitals.
  • There are other issues that worry transgender persons such as their right to property, adoption, marriage, pension, and care for the old and the disabled.
  • Some of these issues may be resolved when the Bill, taking note of their concerns, is passed. The Bill could be the first big step towards equality and their recognition in the mainstream.

What are the Supreme Court Directives towards the Transgenders?

  • SC provides a legal status for the Transgender.
  • It bestows a legal recognition to that population of the Transgenders who wish to get transitioned within male or female through surgeries.
  • The Court opposes Biological tests for the procedure of recognition and encourages psychological tests.
  • The SC declares that the suggestion of SRS – Sex Reassignment Surgery as a condition for the changing the Tran gender’s gender to be illegal.
  • The SC had also ordered the Central and State governments to extend educational reservations for the Transgender.
  • It has also insisted on creating awareness so that they are not stigmatized by the public.

What are the major issues faced by the transgender population in the society?

  • Limited available data show that the prevalence of HIV and STI – sexually Transmitted infections are high among the transgender population as compared to the normal population. They are highly vulnerable to sex related issues.
  • They are also vulnerable to mental health problems like depression, suicidal tendencies, lack of social support and violence related stress.
  • The most affected transgender population are the Teenagers in identifying themselves on the basis of the gender which is opposite to that of the biological sex. This leads to shame, fear, transphobia, etc.