PLIGHT OF THE POWERLESS
Updated: Feb 6
Aarsha Prem, III year of BBA.,LL.B, from Centre for legal studies Gitarattan International Business School, Rohini
Non-acceptance and ego leave in its wake despair, depression and death. Discrimination due to sex is becoming a major cause of suicidal tendencies amongst the third gender.
These people are faced with discrimination in every walk of their life, starting from their family. They face a problem in every step that comes easy to the rest, like, using the facilities, entrance into certain areas and even finding a job.
A famous phrase of PRIDE is ‘Love is love’. An emotion like loving cannot be controlled. Can you ask a mother to love only one of her children, can you ask a child to love only one of their parents? NO. Then why do people feel the ardent desire to control and prevent the love between two human beings?
WHO ARE THE SEXUAL MINORITY?
Sexual minority consists of the group of people whose sexual identity, orientation or practices differ from the mass of the society. It is primarily used to indicate LGB or non-heterosexual individuals. It can also be in reference to transgender, non-binary (including third gender) or intersex individuals.
Variants such as GSM ("Gender and Sexual Minorities"), GSSM ("Gender, Sexual and Sexuality Minorities") GSRM ("Gender, Sexual and Romantic Minorities"), and GSD ("Gender and Sexual Diversity") have been included in the vocabulary, but it is SGM ("Sexual and Gender Minority") that has gained the most popularity since 2014.In 2015 the NIH declared the creation of the Sexual and Gender Minority Research Office, and several professional and academic institutions have adopted this term from then on.
Sexual and gender minority is an umbrella term that embraces populations included in the acronym "LGBTI" (lesbian, gay, bisexual, transgender and intersex), and those whose sexual orientation or gender identity varies. It also encompasses those who may not self-identify as LGBTI (e.g., queer, questioning, two-spirit, asexual, men who have sex with men, gender variant), or those who have a specific medical condition affecting reproductive development (e.g., individuals with differences or disorders of sex development, who sometimes identify as intersex).( www.wikipedia.com)
RIGHTS OF THE SEXUAL MINORITY
Section 377 of the Indian Penal Code 1860 states that “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 ten years, and shall also be liable to fine”. This section emulated a 16th century law called the Buggery Act, which criminalized consensual gay sex as it was judged to be against the order of nature.
A Petition was filed before the SC by dancer Navtej Jauhar and four others in 2018 to reassess the judgment passed in the case of Naaz foundation before the Delhi HC. The five judge benches led by the then CJI Deepak Mishra diluted Section 377 to exclude all kinds of consensual sex as it was arbitrary and irrational. SC in its judgment observed that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.” Justice Chandrachud stated that the right to privacy and the protection of sexual orientation are fundamental rights which lie at the core of rights enshrined under Article 14, 15 and 21 of the Constitution. The SC decriminalized 377 to the extent that it would not exclude unnatural offences against minors and animals.
The Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 which prohibits discrimination against Transgender with respect to education, employment and the ability to rent or buy property. This Bill mandates legal gender recognition in two step process:
It insists on an individual to apply for “Transgender Certificate” from the District Magistrate of their residence. This is also applicable in the case of a person’s self-declared identity.
Consequently, the certificate holder can apply for a “change in gender certificate,” which signals to authorities to change their legal gender to male or female with a proof of medical surgery, issued by a hospital office.
The Bill violates Nalsa v. UOI, judgment of SC which recognized the transgender people belonging to the third gender who are equally entitled to enjoy all fundamental rights. In addition to this, certain provisions of this bill are contrary to international standards of gender recognition such as the UN High Commissioner for Human Rights, World Professional Association for Transgender Health and the Asia-Pacific Transgender Network. The right to recognition as a person before the law is guaranteed in numerous international human rights conventions, and is a fundamental aspect of affirming the dignity and worth of each person. Therefore, the legislation should ensure equal fundamental right of privacy and freedom of expression to all persons irrespective of their race, caste, sex or religion.
In the case of Navtej Singh Johar & Ors. v. Union of Ministry of Law and Justice Secretary, it was also noted that social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. (Discrimination towards sexual minorities in India – blog.ipleaders.in)
PRIDE IN INDIA
The term “pride” came to be allied with LGBTQIA+ marches because of Craig Schoonmaker. He was involved in the planning committee for the 1970 Christopher Street Liberation Day March.
For Milin Dutta, organising Queer Pride Guwahati came about after Section 377, the British colonial law criminalising homosexuality, was reinstated after previously having been decriminalised by the Delhi High Court. I was very upset because I was working in 2012 for Equal Rights and Gay marriage in Minneapolis’, stated Milin, who currently moves between Minneapolis and Assam.
It really troubled me that if I lived in Assam, I could be criminalised, so that made me take a sabbatical in January, and I went to India for 3 months’. He went to different cities across India including Mumbai, Delhi, Bangalore and Chennai and met various people there who all encouraged him to organise a pride for North East India.
When Section 377 was reinstated in December 2013, the Global Day of Rage took place one week after that… so I connected with the organisers of the events, and I reached out. I said “I am here, I want to organise a gay pride, so work with me”.’(onefuturecollective.org)
In India, the first Pride Parade was organised in Kolkata on 2nd July 1999, named the Kolkata Rainbow Pride Walk, it is also one of the oldest Pride march in South Asia. Even though it saw participation from other cities like Mumbai and Bangalore, there were still only about 15 participants in total – none of them women. It has been over 20 years since the first Pride walk in Kolkata, and pride has come a long way. Now there are pride walks in more than 20 states of India. (feminisminindia.com)
VISION OF THE SEXUAL MINORITY
Everyone has the right to be happy, and if one finds happiness with their partner, then the society must understand and empathise with them. Being in a society does not give you an unwarranted right to meddle in another’s life. Intrusion and discrimination is what chokes the freedom of life of a human being. A person should not be limited just because of his or her sexual inclinations.