LGBTQ+ In India: What Changes Did Scrapping S.377 Bring?

Culture, Religion, Customs, Traditions, Beliefs, Honor, Respect, Teachings are some concepts that hold immense importance in Indian Society. As much as there are positives for that, there are negatives impacts of it in society. Individualism, freedom, acceptance and equality are aspects that many groups are fighting for. In a country where arranged marriages still hold the utmost value; where love marriages have to be filtered through religion, caste and statuses; where one gets judged according to society’s right standards, the place for the LGBTQ community seems questionable.

Back in 2018, in the landmark judgement of, Navtej Singh Johar & Ors V. Union of India the Secretary Ministry of Law and Justice[1], the five-judge bench of the SC scrapped Sec.377 of the IPC. The colonial-era law banned all “unnatural relationships”, which meant that all carnal relations that were against the law of nature were illegal. This meant that the entire LGBTQ community was illegal. “History owes an apology to the members of this community and their families … for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.” said Justice Indu Malhotra, one of the judges of the SC, who held that section 377 unconstitutional.[2]

The scrapping of this law led to numerous celebrations throughout the community and the country. The court recognized that it was not a sin; rather a person’s sexual orientation is innate to their being. The classification of people done based on their innate nature would be a violation of their fundamental rights. As much as there was a huge success in the air, there were also numerous questions about how things would be moving forward. Even if there was an opportunity for equality, it was a beginning for a whole new struggle. When the SC scrapped the law, it was a step towards acceptance and equality, but how well is it perceived becomes a question.

The very first question that followed recognition of the community was that of acceptance by the country. Homosexuality remains to be a taboo with all generations. Whether it is because it seems to be a “new territory”, or because of societal “rights and wrongs”, or because of the lack of knowledge or religious faith; the acceptance in society is low even with the upcoming “modern” generation. People fail to recognize this as normal and thus create a social stigma. This leads to a life full of fear, reprisal and persecution. Many individuals from the community fear to ‘come out’ due to hardships and stress from society. It has been also seen that one of the greatest fears while coming out for individuals in the community is the security of jobs. The stigma around the topic and the homophobia leads to loss of a job, due to both humiliation as well as being laid off. This almost seems like a situation when women had to fight for their rights, in both of which, the individuals are natural to their being. The huge steps towards the recognition of LGBTQ community became a powerful push for societal acceptance. This now is a landmark decision in a country, awareness has been increased in society.

A survey by YouGov-Mint Millennial conducted in January of 2019 showed that even in the major cities of the country, more than 50% of the youth are open to accept or support homosexuality[3]. A step was made forward for the transgender sub-community by adding the third gender option on government forms. There are various NGOs and institutions that are committed to bringing a change in the situations of the transgender community in the country. In urban India, social media and corporate initiatives have created increased awareness of LGBTQ rights. Urban LGBTQ voices can be heard via many online platforms which become an essential part of LGBTQ activism; these show only a small section of the challenges faced by the community[4].  

In the country with such a vast population, activists want authorities to spread awareness about the cause to help take the step forward. Since the judgement, parents are becoming more open to accepting their children as a part of sexual minorities. Corporates have also shown interest in hiring people from the community as an approach to ‘inclusion’ and ‘diversity’. However, to take things forward, parents and relatives have to be explained properly about the said topic, even though they bring up topics of Indian Culture and family prestige, it is important to spread the knowledge to improve understanding.  It is a long journey to full acceptance, but this is a good start.

Secondly is information and knowledge. Indeed, sex-education in India is quite on the back burner for a long time. Now, when it comes to this subject, knowledge must be passed professionally in a safe environment. We believe that teaching children at the right age do the correct job and this is a topic that should be introduced. Sukhnidh Kaur conducted a survey asking students to share their experiences in school. “Homophobia in Indian schools and the complicity of school authorities is a largely unaddressed problem. We forget that young school students who are in the process of figuring out and settling into their identities and orientations require support. Discrimination and abuse within schools are overlooked because the victims are young, queer people. These students suffer silently, and there is a pressing need to bring this issue to light,” says Sukhnidh.[5]

This can largely fuel the need for acceptance and awareness that is necessary for the nation. Then there are many instances where teachers have been known to publicly declare homosexuality as a disease, brought on by the spread of the Internet and in need of a ‘cure’.[6]Schools are after all represented by individuals who belong to society at large, and I see such homophobic attitudes more as an expression of the lack of awareness about sexuality. Most people are yet to come to terms with the fact that gender and sexuality are no longer governed by the ages-old binary that has been considered to be ‘normal’ and this lack of understanding leads to the discrimination,” says renowned LGBT activist Harish Iyer[7]. There has been no improvement on this; however, activists and NGOs continue to circulate information actively on this cause.

The next thing comes in marriage. If all relationships are natural then so should all activities followed by them. The constitution guarantees equality to all; irrespective of anything. It guarantees life with dignity. Every person should be able to pursue what they wish. Since it has been established that the community deserves just as much respect and equality, then it should get the rights to all matters. Marriage is the first and foremost of them all. “We still cannot marry, we still cannot adopt. We have many, many years before any of this (happens),” said Reyansh Naarang, an activist at LGBT+ rights group Nazariya in New Delhi[8].

However, no law in the land recognizes marriages between same-sex couples. Furthermore, India having a unique stream of personal laws, religion does play a big part in marriage. India is a “marriage society”[9]. In a progressing and developing country, people must have the autonomy to express themselves. In the 2018 judgement, arguments were brought up about how the dimensions of ‘family’ are changing. The SC in many instances has protected inter-caste, inter-race, and inter-faith couples from the violation by society. It has recognized that minorities have to be given special protection in a multi-faced country like us.

Since the judgment, the lawyers for the petitioners have unveiled the Marriage Project. It is a project that aims to legalize same-sex marriages in India. This becomes an excellent step towards attaining various goals in the LGBTQ struggle. “The social aspect of the marriage project alludes to India being a ‘marriage country’. From their many interactions with young people throughout the length and breadth of the country, Guruswamy and Katju noted that young Indians—gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all wanted the same thing—a lasting long term relationship recognized by society and by the law.”[10]

From the legal standpoint, being married in India opens up a bundle of rights and opportunities such as property, inheritance, insurance, bank accounts etc. It would even open up possibilities for adoption as a family. Currently, adoption in India remains to be closed to heterosexual married couples or in the case of unmarried, widowed people.[11] If adoption would be opened to same-sex couples, hopefully, will be the possibility of greater adoption rates. Hopefully, the marriage project succeeds leading to many opportunities for social causes as well.

Due to these various reasons, the crimes against the community can also be curbed. These range from harassment and ragging to rape, physical violence, murders and suicides. In an online petition calling for gender-neutral legislation, included a rape law that would also protect men, transgender and intersex people gained more than 9,000 signatures[12]. The decriminalizing has also led to the simplest things like accessing medical facilities. Before the judgement, hospitals would deny services to members from the community in relation to vital sexual medical care. This was due to a lack of knowledge as well as the stigma surrounding the subject. These have curbed and people can now get the right care, medication and even information at hospitals.

Finally, coming to the government machinery, there still is major backwardness towards the topic. Activists ask for the centre and state to pass guidelines to execute properly the 2018 verdict. “Nothing has moved at the government-level post the verdict. The first step is to bring about a change in the mindset of government officials and the police. They should be trained and taught to behave respectfully with sexual minorities,” said Kumar from Samara Society[13]. One cannot deny service to those coming from the community, especially in the government background. People put their trust in the government to give them their rights and to be treated equally under their county.

The decision has proven as a step forward for the new India and immense developments have been made. One has to still realize that this is going to be a large struggle because the core of it is changing traditional orthodox mindsets. This is 0one of those situations in the legal world, where the law has to be a step ahead of society to encourage and bring change. India is just as much every person’s country just as much as everyone else’s. This stands and will always stand as a step toward a developing, greater, peaceful India. The one that lives and lets live. Happily, Peacefully and Lovingly.


[1] W. P. (Crl.) No. 76 of 2016

[2] https://www.theguardian.com/commentisfree/2018/sep/06/india-lgbt-homophobia-section-377

[3] https://www.livemint.com/news/india/homosexuality-a-taboo-for-most-urban-youth-1553659318716.html

[4] Prerna Shahani on https://www.quora.com/What-is-the-future-of-the-LGBT-community-in-India

[5] https://citizenmatters.in/india-city-schools-homophobia-lgbt-discrimination-gender-research-6863

[6] Ibid ref.5

[7] Ibid ref.5

[8] https://www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256

[9] https://feminisminindia.com/2020/05/19/same-sex-marriage-india-unveiling-marriage-project/

[10] Ibid ref.9

[11] https://procejurelaw.co.in/2020/05/21/adoption-laws-an-indian-perspective/

[12] Ibid ref.8

[13]https://economictimes.indiatimes.com/news/politics-and-nation/a-long-way-to-go-for-lgbtq community/articleshow/67377077.cms?from=mdr

Sai Kulkarni from Marathwada Mitra Mandal’s Shankarrao Chavan Law CollegePune

“Curiosity is the engine for discovery, inquiry and learning’ Just a curious girl working to leave a mark.”

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