Constitutional Law

Decriminalizing Homosexuality in India

This article first appeared in 1st issue of Law Maniac (Flagship E-Magazine of LL.B Mania) authored by Adarsh Gautam.

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”– Justice Indu Malhotra’s statement in the 50-page verdict which decriminalized homosexuality by partially striking down section 377 of Indian Penal Code, 1860.

6th of September 2018, beginning of a new era in the fight for LGBTQI+ Rights. The move in the comprehension of homosexuality from transgression, wrongdoing and pathology to an ordinary variation of human sexuality started in the late twentieth century. To eradicate the exploitation and ostracization against the LGBTQI+ community, the judiciary has pronounced several landmark judgements to confer upon the LGBTQI+ community, the basic rights.

Naz Foundation Govt. v. NCT of Delhi, an incident in Lucknow which put false charges on men of being homosexual and put them behind the bars, this incident drew the attention of an NGO Naz Foundation and they along with Lawyers Collective knocked the doors of Delhi High Court and filed a petition challenging the constitutional validity of Section 377 of IPC. After 8 years in 2009, the milestone judgment of the Delhi High Court, announced that Section 377 of the Indian Penal Code disregards principal rights ensured by the Constitution as it was violative of rights conferred upon them under Article 14, 15, 19, and 21 of the Constitution.

After this historic judgement, numerous faith-based groups and individuals having counter gay perspective strictly stood against it and they considered the law to be against the ethics and cultural & traditional history of India. They appealed before the apex court of the country to relook into the matter, in Suresh Kumar Koushal v. Naz Foundation, the decision which marked the beginning of a new life was overturned by the Supreme Court on the grounds that Section 377 cannot be said to be in the vice of unconstitutionality. Thus, repealing the judgement which showed a sigh of relief for the LGBTQI+ community. However, the judgement attracted the interest of the whole country and it faced major criticisms from every nook and corner of the country and finally in 2014, in National Legal Services Authority v. Union of India, the court created the third gender and created a framework to ensure the basic rights of the transgenders who were earlier forced to identify themselves as male or female.

In K. Puttaswamy v. Union of India, it was observed by Justice Chandrachud that sexual orientation also falls within the wide ambit of right to privacy and he also criticised the decision in Koushal case. This judgement gave a new ray of hope and euphoria to LGBTQI+ community that section 377 will be soon strike down by the court.

India witnessed wave of protest for securing the rights of LGBTQ community and many petitions were filed in their support. In Navjet Singh Johar v. Union of India, on 6th September, 2018 a five-judge bench unanimously struck down section 377 of the IPC to the extent that it criminalizes same sex relationship.  The court held that the sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and protection of sexual orientation which lies at the core of the fundamental rights guaranteed by Article 14, 15 and 21 of the Constitution.

India joined 125 nations where homosexuality is legal as Supreme Court decriminalized gay sex, thus providing a huge boost to the LGBTQI+ community of India. The Court recognised sexual orientation as a “natural and inherent” phenomenon, which is biological and not a matter of choice. The court has rightfully protected animals against attempts by humans who have intercourse with them, that still remain under the purview of crime.

The same-sex couples now have the legal right to cohabit and conduct their personal affairs without any fear of persecution but are still denied equality of treatment in various aspects. These judgements have just laid down the ground for the establishment of a society where the other civil rights of the LGBTQI+ community will be regarded. Hence, there is way more to go, these rights include the right to marriage, right to surrogacy, right to adoption, etc. Proficient social orders need to build consciousness of these issues.

In order to fully accept this new change, society needs to understand that marriage is a sacred bond which is not limited to just opposite sex but also applicable to those two people who have willingly decided to live as a normal couple even if they are of the same sex. Since the motto or aim of marriage is not only procreation then same sex marriages should be recognised in the society as well. 

Many people after the legalisation of same sex, are coming forward and are trying to fit in the society. Many people think that it is some kind of mental disease which is to be treated but this is not the truth. This is to be considered as a choice of the individual and should be respected. In order to accept this relation, the society should be taught that this is all a natural choice of individuals and not any bad influence. 

No matter what laws are made it can never be successfully implemented if the co-operation of society is not there. These marriages should be accepted in society as at last we should keep in mind that marriage is the special bond between two souls and not just two bodies.

Human sexuality is perplexing and differing. Similarly, as with every single complex conduct and character attributes, natural and ecological impacts consolidate to deliver specific sexual direction and personality. We have to zero in on individuals’ humankind instead of on their sexual direction.

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