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·        
Issues
in India:

Living
in a country where heterosexuality is considered as an accepted norm it sure is
tough for the sexual minority brackets to flourish and gain equality. In this
situation their social well-being is at huge risk as they are often the prey of
social exclusion, brutality, illegal detention, police harassment, etc.1  One major problem subsisting is India is the
heterosexual marriage against will which eventually lead to unhappy life,
divorce and mental disturbance.

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 Legal heritance is often denied to such
individuals and they end up feeling secluded and invisible in the community. Also
media sources which should be utilized majorly for the betterment of the LGBT
community plays an unconstructive part in portraying them as aggressive and
illicit.

·        
Legal
Position In India:

Legal
discrimination against the LGBT community in India persists in various modes
but the most awful or infamous of all is Section 377 of the Indian Penal Code
which originated from the British colonial times through their legislation. Ironically,
such a provision is not anymore in the British statute but continues to be
valid and legal in the Indian Penal Code.

Section
377 of Indian Penal Code:

“Unnatural
offences.–Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with 1*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.”2

On the analysis of the
section we find certain lacunas in the provisions:

·        
The section fails to clearly distinguish between consensual and
coercive sexual activities.3

·        
The term “unnatural offences” has been defined in an outdated
fashion and also no rights of sexual minorities have been recognized.4

Although Article 15 of
the Indian Constitution states:

“Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall
not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them

(2) No citizen shall,
on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard
to

(a) access to shops,
public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells,
tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.”5;

Yet the Article
excludes sexual orientation as a ground for discrimination.

The year 2014 was a
landmark year which contributed majorly for the upliftment of the transgender
as they were granted the right to change gender without sex reassignment surgery
and were recognized as the third gender nationwide.

It is to be noted that
as of 2018, the Supreme Court is doubtful and reconsidering whether to legalize
same-sex sexual activity and to draft a Uniform Civil Code which on approval
could lead to legalization of same-sex marriage.6

 

 

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