On 10th June 2018, two women named Asha Thakor and Bhavna Thakor, aged 30 and 28 respectively, jumped to their death in the Sabarmati river. They left two suicide notes near Ellis bridge. A message was scribbled with red lipstick near the Sabarmati river that read, “We have left this world to live with each other. The world did not allow us to stay together. We did not have any men with us.”.
Another message, scribbled in the same fashion, was found on a disposable plate nearby: “This world did not allow us to stay together. When will we meet again? When will we meet, perhaps in the next birth we will meet again”. They ended their lives because their same-sex relationship was contradicted by the world. They also ended the life of an innocent three-year-old girl, who, according to sources, was the child of one of them. What could have led these women to take such a drastic step like that? Why was their relationship opposed by society? We need to delve into the deeper dimensions of the lives of homosexuals in India to answer these concerns.
Section 377 refers to ‘unnatural offenses’ and provides that whoever voluntarily has carnalintercourse 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 pay a fine. The 5-Judge Constitution Bench, comprising eminent judges like CJ Dipak Mishra, Dr D.Y. Chandrachud etc in their landmark judgment, held Section 377 of IPC unconstitutional insofar as it criminalized sex between consenting adults of the same gender. In the light of the Sepoy Mutiny of 1857, Section 377, the law to prosecute those who challenge the ‘order of nature’ was rushed through in 1860.
In 2001, some LGBT rights NGOs filed a petition in the Delhi High Court questioning the constitutionality of Section 377 of the Constitution under Sections 14, 15, and 19. In July 2006, in support of the Delhi High Court petition, a national AIDS control body submitted an affidavit stating that “Section 377 acted as an impediment to HIV prevention efforts”. In 2009, a landmark judgment was passed by the Delhi High Court holding Section 377 to be in violation of Articles 21, 14 and 15 of the Constitution, insofar as it criminalized adult consensual sexual acts in private. Few realized that this was not a challenge to Indian culture and that the rule of the Victorian era was simply a legacy of European prejudices against homosexuality.
On 11 December 2013, the Delhi HC verdict that decriminalized consensual sex between adult homosexual men was reversed by the Supreme Court in a verdict made by Justice G.S. Singhvi, who retired on the same day. But the SC also told the government that, through legislation, it was free to repeal the statute.
Outcomes of decriminalizing Section 377: An analysis
Article 14 of the Constitution of India guarantees its people equality before the law. It says that the State shall not deny equality before the law or equal protection of the laws of any individual within the territory of India. The prohibition on discrimination on grounds of faith, colour, caste, sex, or place of birth. The burning question is, whether the nation’s homosexuals believe that they are treated with fairness and are subjected to discrimination or not. We will need a closer insight into the lives of the LGBT community to address these questions. The decriminalization of Section 377 gave these individuals a ray of hope, which was reflected by the massive way in which they celebrated the judgment, but they didn’t know that things were not going to improve that easily back then.
The LGBT group was abused in many ways prior to the verdict. As a consequence of Section 377, numerous cases have illustrated the vulnerability of the LGBTQ+ Indians. On the basis of Section 377, homosexual couples who met in parks or public places were detained and blackmailed. Homosexual men have been raped and exploited. They were seen in the light of the law as criminals. Section 377 of the IPC called for a complete prohibition on sexual acts engaged in by the LGBTQ community. This puts them at a greater risk of acquiring and transmitting HIV infection and other STDs, owing to a high degree of risky conduct and inadequate decision-making ability to defend themselves from infection. Not only that, for fear of being ‘exposed’, the section also made it very difficult for the party to seek medical assistance. They were subjected to bullying from both private and public institutions and harassment.
This is the 21st century where man has evolved to an extent where man is capable enough to choose their own partners and select their own sexual preferences but due to certain stereotypes, people in India are not yet ready to accept the fact that two people belonging to the same gender can fall in love and spend their lives together. Even after two years of decriminalizing section 377 of the IPC, homosexuals are still fighting to establish a place in Indian society. When section 377 of the IPC was decriminalized, people belonging to the LGBTQ community thought that this would be a big step in the upliftment of their community but gradually they realized they have a long way to go.
Allowing them to have private consensual sex has not granted them any other rights that a heterosexual individual would get. They still need to fight battles every day.