Introduction
It was considered as taboo for homosexuals to live in India and homosexuals have been treated dreadfully. But there was a legal revolution on 6th September 2018 after the SCP struck down section 377 IPC in Navtej Singh Johar & Anr. v. Union Of India & Ors and made the practice of homosexual relations between consenting adults legal.
This was a huge victory for homosexuals but still difficulties are facing, for example, no right for marriage and no acceptance among a population. Even today, the Indian society does not embrace homosexuality, there is clear proof that homosexuality during the glorious days of India was widely accepted and in practice.
Homosexual activities are depicted in the texts like Mahabharata & Ramayana and in structures like Khajuraho temples, which imply that Indian society of medieval age had assimilated homosexual relationships into their society.
Scope Of Section 377
Many people are of the opinion that Section 377 relates to homosexuality alone and nothing more. In reality, it also prosecutes some heterosexual practices as crimes such as anal sex and fellatio as well as other as other perverted acts like necrophilia or bestiality.
- Anal sex
- Fellatio
- Necrophilia
- Bestiality
It also extends to the cases of sexual assault committed against a minor, and they are further barred under the Protection of Children from Sexual Offences (POCSA) Act.
Global And Mythological Perspectives
Homosexuality is as old as the antiquity and is documented to have been existing in several cultures as well as in myths. Civilizations also offer examples where Gods approved same sex relationships Such is the case of Hindu mythology.
In the past, people of the same sex were embraced and, in the present world, examples of royals who engaged in same sex relationships can be found. Most of the countries in the world in the current century provide certain basic human rights to their people, and most of these countries have hence legalized homosexuality.
India, however, was relatively quick to this than the other South Asian countries, but still not as fast.
Objective Of The Study
Thus, this project is designed to focus on the SC Judgment on Homosexuality in India and the human rights. The researcher will also review historic legal decisions about homosexuality rules in India and overseas, to determine whether homosexual relationships can be considered unlawful, and the considerable effects of the Section 377 decriminalization on the Lesbian, Gay, Bisexual, Transgender, and Queer community and all the related society spheres.
Historical Context
There are cultural and historical foundations of many queer identities and behaviours in India. According to the research conducted by the Gay and Lesbian Vaishnava Association (GALVA), the sexual minorities have been recognized in India right from the Vedic age which is 3102 BCE where homosexuality was accepted as “Tritiya Prakriti” or third sex.
The oral and written histories, along with mythologies of the Mahabharata and Ramayana, have mention of homosexual relationships. Historically, it was not a taboo for a man to have love for other men; Babur, who was the founder of Mughal empire in India, without any hesitation, expressed his love for other males in his autobiography known as Baburnama.
The Khajuraho temples that date back between 950 and 1050 AD also have erotic carvings which include homosexuals, thus, depicting the society of the time was tolerant.
Colonial Impact On Homosexuality Laws
The acceptance of homosexuality considerably shifted with the coming of Britain’s colonial influence. In 1860 the distinguished Lord Thomas Babington Macaulay forwarded the IPC that contained Section 377.
Similar to the British laws in which the buggery act of 1533 made sodomy punishable by imprisonment Section 377 of IPC stated ‘Sexual abuse of any person against the order of nature’ and again it was punishable by imprisonment.
This law stated that consensual homosexual acts were unnatural offenses; this made homosexuality unlawful in India.[1]
| Year | Event | Impact |
|---|---|---|
| 1533 | Buggery Act in Britain | Sodomy made punishable by imprisonment |
| 1860 | Introduction of Section 377 IPC | Consensual homosexual acts criminalized in India |
Post Independence Developments
After the India got independence in 1947 the constitution of India was framed in 1950 and the right to equality was provided. Nevertheless, homosexuals and other individuals belonging to what was termed as the queer community continued being discriminated against, and they had no legal rights that were recognized.
It was only in 1981 that the political mobilization of the Hijras led into the organization of the All India Hijra Conference, which paved way for the rising body for promoting the LGBT rights coalition in India.
- 1981 – Formation of the All India Hijra Conference
- 1990’s – Campaign to decriminalise homosexuality started
- 1992 – First protest for equal rights by the LGBTQ community
- 1999 – First Pride parade in South Asia held in Kolkata
The campaign to decriminalise homosexuality started in the 1990’s. The LGBTQ community only held their first protest for equal rights in the year 1992. The first Pride parade in South Asia happened in Kolkata in 1999 in which though had a low turnout of participants.
Legal Implications And Comparing The Law Wth Other Countries
The provision goes on to outlaw any form of ‘carnal intercourse against the order of nature’ and this has been defined to mean any form of sexual activity that does not fit within the definition of penovaginal intercourse. The words used are generic and can easily encompass a large list of activities consented to between two adults, be they penetrative, oral or anal sex irrespective of the participants’ gender. [2]
Overall Implications Of Section 377
The implications of Section 377 are profound, as it:
- Criminalized Consensual Same-Sex Acts: Regardless of any consensual sodomy between two adults of the same sex, it was a crime of ‘unnatural offences’ therefore; homosexuality. Before the 2018 judgment, homosexuality was a crime because sexual relations between persons of the same gender were prohibited. The Supreme Court re-criminalized Section 377 in the Koushal judgment of 2013 but this was spurned in 2018 after the Supreme Court decriminalized consensual gay sex. [3]
- No Consideration For Consent: It is also worth noting that Section 377 did not draw the distinction between the consensual and consummated rape. Thus, even normal sexual encounters that may be agreed between two adults in the privacy of their home were outlawed. This section was against consensual sex between individuals of the same sex. As part of the Indian Supreme Court in 2013, the country’s constitutional provision was defended on the affirmative suspension of Section 377, which was not a violation of fundamental right. However, in the year 2018, the Apex Court of the country gave a verdict which overturned this decision. Supreme Court further stated that Section 377 was ’irrational, arbitrary and inexplicable’ to the extent of penalizing consensual same- sex activity between adults.
- Broad Scope: The provision also outlawed sexual practices such as oral and anal sexually between man and woman. Though this aspect has never been implemented, it exposed many people to being prosecuted for their sexual activities outside the marriage institution. Section 377 of the Indian Penal Code does mention heterosexuals as well as it will not consider any act of intercourse other than normal right way or vaginal intercourse since the latter does not bear true to the relationship of procreation. However, no laws have been filed against heterosexuals for such actions and most are equally oblivious of this understanding.
Resort To The Victims Of Marital Rape
It is also considered as a compensation to men, such as victims of marital rape[4]: In India marital rape is still not a punishable offence, owing to this culture which is still deeply rooted in patriarchy and where women are seen as objects owned by their spouses. According to Indian law, rape is singled out as an offense perpetrated by a male individual on a female who is not his married partner.
Though section 377 IPC does not contain a marital exception for sodomy it is legally acceptable in India as long as it is consensual. This makes it suitable to be employed against husbands who practice forced or intercourse on their wives. Now though marital rape itself is not legally categorized as a crime in the Indian legal system but Section 377 can be used as a legal tool that addresses this issue as the acts that happen in the marital bed are considered as offences under this section. This gives those married women an opportunity to get legal redress where they cannot seek the same under Section 375 of the IPC.
Impact On LGBTQ Community
The continuation of Section 377 only kept on the discrimination and stigma that members of the LGBTQ had to endure. It was actively used to bully and persecuted members of the homosexual population thus violating their privileges to privacy, dignity, as well as equal protection.
Criminalizes Sexual Acts Between Humans And Animals
Unnatural activities which can be considered as perverted, including necrophilia and bestiality are also included in Section 377. Hence, the importance of maintaining this aspect of the section in order to protect the basic rights of children and avoid exploitation of the same.
This is in light of the fact that in the 2018 while delivering the judgment, it was made clear that sexual relations with animals would still be outlawed under Section 377 of the Penal Code. A host of real-life examples have been brought to light in the past years as to prove practices of such unnatural acts. For instance, in the 2016 Jisha murder case, the accused [5]was charged under section 377 for sexual offences of involving in a sexual activities with a goat. In some cases, the persons who have been arrested under this section have been involved in carnal intercourse with animals
Comparative Position In Other Countries
As it was widely practiced many countries in the world, they also used to have criminal laws against the practice of same-sex relations. Still, there has been the expansion of the same after some jurisdictions started decriminalizing such acts and promoting equal rights for the LGBTQ community.
| Country | Historical Context | Decriminalization |
|---|---|---|
| United Kingdom | Historical Context: Section 377 in essence was copied from the Buggery Act of 1533 from England that made sodomy a criminal act. | Decriminalization: Their homosexual act was legalised by the Sexual Offences Act 1967, which granted that homosexual intercourse between two males in private and above the age of 21 years is legal in England and Wales. Scotland acceded in 1980 and Northern Ireland in year 1982. |
| United States | Historical Context: Quite a number of states in the world had laws, this Section 377 akin to the sodomy laws. | Decriminalization: A resolution of this sort is seen in the well-known case of Lawrence v. Texas 2003, whereby the Supreme court of the U. S lived up to their promise by declaring the sodomy laws unconstitutional making same sex sexual activities legal in the United States of America. |
| Australia | Historical Context: Some of the Australian states had sodomy laws. | Decriminalization: Thus, South Australia was the initial state of Australia to legally deregulate homosexuality in 1975. Tasmania led the way in 1997 after the case of Toonen v. Australia in which the United Nations Human Rights Committee concluded that Tasmania’s laws violated the International Covenant on Civil and Political Rights. |
| South Africa | Historical Context: The Immorality Act, 1927 was enacted to from the prohibited sexual relations between different races and same-sex relations. | Decriminalization: After apartheid the interim constitution of the Republic of South Africa in 1994 and the final one in 1996 offered sections against discrimination to result in the decriminalization of homosexuality. The famous case, National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), was the Constitutional Court’s decision that sodomy laws unconstitutional. |
| Germany | Historical Context: Homosexual acts are outlawed in Germany whereby homosexual relationships were criminalized under the Paragraph 175 of the German Penal Code. | Decriminalization: It was gradually liberalised beginning from 1968 in East Germany and from 1969 in West Germany; this led to the final full decriminalisation in 1994. |
Constitutional Challenges To Section 377: Rights, Privacy, And Health Concerns
In the Naz Foundation Judgement, petitioners argued that Section 377 of the Indian Penal Code (IPC) violated several constitutional rights of the LGBTI community, including:
Fundamental Rights Invoked
| Constitutional Article | Right Involved | Argument Raised |
|---|---|---|
| Article 14 | Right To Equality | Section 377 was viewed as such because it discriminated against minorities and was arbitrary in prosecaution of this act. |
| Article 15 | Prohibition Of Discrimination | Section 377 was contended on grounds of discrimination on the basis of sexual orientation which should fall under the prohibition of discrimination on sex. |
| Article 19 | Right To Freedom | The Delhi High Court did not directly deal with the freedom rights; however, it proposed that Section 377 might interfere with freedom rights. |
| Article 21 | Right To Life And Personal Liberty | The applicants stated that Section 377 deprives one of the right to life with dignity and freedom. |
Counter Arguments And Criticism
They stressed that there was lack of evidence to prove that these rights were being infringed. They contended that Section 377 does not outlaw a certain community but switches an ascriptive conduct. However, the critics pointed out that there is no data available on discrimination that could be a result of this very criminalization process.[6]
Impact Of The Koushal Judgement
The Koushal Judgement later nullified the section but this was severely condemned for not addressing issues to do with consent, privacy and mental health.
Law Commission And The 172nd Report
The Law Commission in its 172nd Report had suggested to delete Section 377 stating that laws should not blacklist trust, penalize adults for consensual sex between two adults.
Privacy Concerns
Privacy: The United States Supreme Court in the year 2017 defined the concept fronting privacy as something that enshrines about an individual’s decision concerning their is private sphere. Section 377 was taken aken for violating the Basic human right to privacy where the private gay consensual adult sexual activities was criminalized.
Right To Health
Right to Health: The National AIDS Control Organization also pointed out that Section 377 hinders the fight against HIV/AIDS in terms of compelling people to keep off health seeking services because of repercussions.[7]
Right To Dignity
Right to Dignity: The petitioners’ case pointed to the provision’s impact on self-esteem and mental health due to it criminalizing otherwise consensual conduct by individuals.
Equality And Non-Discrimination
Equality and Non-Discrimination: The High Court said that the Article 15 needs to include the protection against discrimination on the basis of sexual orientation and, on the contrary, the Supreme Court did not pay attention to this aspect.
Summary Of The Constitutional Conflict
In summary, opponents claimed that Section 377 violates other sections of the constitution and hinders the provision of health services. It is a continuous argument regarding the conflict of ethics of the masses and the laws of the constitution.
How It Evolved Through Various Judicial Decisions
Naz Foundation & Ors Vs. Government & Ors, 2009[8]
Background
The above case concerned was filed by the Naz Foundation, a non-government organization, in the Delhi High Court, whereby the applicants sought to challenge the constitutionality of Section 377 of the Indian Penal Code on the basis of the infringement of rights of homosexual persons.
Judgment
The Delhi High Court finally in its judgment delivered on July 2, 2009, declared Section 377 of the IPC unconstitutional to the extent that it sought to criminalise consensual sexual relationships between adults in private.
Key Findings
| Constitutional Provision | Finding |
|---|---|
| Article 14 | The section was struck down on the grounds that it denied homosexuals equality on the basis of Article 14 of the Constitution of India as it discriminates homosexuals as the class which it seeks to protect and arose out of an unreasonable classification. |
| Article 15 | The section also contravened Article 15’ on the equality of rights on sex and further reiterated protection on the basis of sexual orientation. |
- Delhi High Court ruled that the provisions that made homosexual intercourse a criminal offence are unconstitutional.
Suresh Kumar Kaushal v. Naz Foundation (2013)[9]
Background
The 2009 Naz Foundation judgment was successfully challenged by Suresh Kumar Kaushal & others very much to fend off the morality, culture & ethics of Indian society.
Judgment
However, on December 11, 2013, the apex court, the Supreme Court of India, decided to overrule Delhi High Court stating Section 377 legal and affirming criminalization of consensual homosexual acts.
Key Findings
- Role of Legislature: On this occasion, the court ruled that the legalization of homosexuality should be initiated by the Parliament not by the court.
- Right to Privacy: The court stipulated that the right to privacy cannot include acts which are criminal in nature.
- Recriminalization: The judgment practically decriminalise consensual homosexual intercourse, which in fact regressed the LGBTQ rights in India.
NALSA v. Union of India (2014)[10]
Background
Two writ petitions were filed to protect the rights and interests of the transgender community.
Judgment
The apex Court delivered a landmark judgement recognizing the rights of transgender individuals.[11]
Key Findings
| Aspect | Finding |
|---|---|
| Focus on Binary Gender | The court noted that Indian laws predominantly recognized only binary genders, leading to discrimination against transgender individuals. |
| Rights of Transgender Individuals | The court recognized the multi-faceted rights of transgender persons under Articles 14, 15, 19, and 21, including the right to self-identify as male, female, or third gender. |
| Categorization | The court decided that transgender individuals would be categorized as the third gender. |
| Call for Legislative Reforms | The court emphasized the need for legal provisions addressing the present-day needs of the transgender community. |
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017)
Background
A nine-judge bench was constituted to determine whether the right to privacy is a fundamental right under the Indian Constitution.
Judgment
The Supreme Court confirmed that the right to privacy is a fundamental right under Article 21 of the Constitution.[12]
Key Findings
- Rectification of Suresh Kumar Kaushal Judgment: The court emphasized its responsibility to rectify the mistake made in the Suresh Kumar Kaushal case.
- Privacy and Sexual Orientation: The court stated that sexual orientation is an essential attribute of privacy, protected under Articles 14, 15, and 21.
Navtej Singh Johar v. Union of India (2018)[13]
Background
In 2016, five individuals (Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra) filed a petition challenging the constitutionality of Section 377 of the IPC.
Judgment
On September 6, 2018, the Supreme Court delivered a historic judgment decriminalizing consensual homosexual acts between adults, thereby partially striking down Section 377.
Key Findings
| Constitutional Provision | Key Finding |
|---|---|
| Article 14 | The court held that Section 377 was unconstitutional as it violated Article 14. Consensual sexual acts between adults could not be criminalized merely because they were homosexual. |
| Article 15 | Section 377 violated Article 15 as it prohibited discrimination based on gender, interpreted to include sexual orientation. |
| Article 19 | The court ruled that Article 19 includes the right to express one’s personal identity and sexual orientation. |
| Article 21 | Section 377 violated Article 21, which encompasses the rights to privacy, dignity, and autonomy. These rights cannot be curtailed by criminalizing consensual homosexual acts.[14] |
Legislative Purpose
The court noted that the original intent of Section 377 was to protect women, children, and animals from exploitation. Consensual intercourse between homosexuals did not pose a threat to these groups.
Public Morality And Order
The court found that consensual homosexual acts did not disturb public morality or order, making the restrictions under Section 377 baseless.
Unconstitutionality Of Section 377
The Supreme Court partially struck down Section 377, declaring it unconstitutional as it violated Articles 14, 15, 19, and 21 of the Indian Constitution.[15]
Conclusion
Homosexuality and IPC Section 377 have been a maturing issue in India and there is much work still to be done in protecting the rights of homosexuals in India. The liberalization of Section 377 with a minor’s component means that the Supreme Court of India’s historic decision in favour in 2018 was a stepping stone towards justice and recognition of the minority’s rights. But the journey, I can assure is far from over.
The legal victory that was gained through the striking down of Section 377 regarding the application of the law to consensual acts of sex between same-sex adults cannot be understated. It represented prescripts of Propositions about the rights and freedoms afforded homosexual individuals under Indian Constitution.
However, the societal acceptance and, subsequently recognition of full legal rights of the LGBTQ+ still remain a progressive process. Homosexuality has not necessarily been embraced after its legalization as most people still consider it a vice. However, homosexuality is still experienced a lot of pressure from the families to change their lifestyle and sexuality and if they do not, they end up being forced into marriages without their consent or even being expelled from the society.
Stigmatisation of homosexual activities through criminalisation under Section 377 was also limiting in relation to HIV/AIDS prevention and control strategies. It has also made a way for more effective ways of reaching out to people in regards to their health and providing support for the members of the LGBTQ+ population.
Thus, the repeal of Section 377 was a dramatic turning point, nevertheless, it was only the first step towards legal and cultural transformations. Our government and non-governmental organizations have to collaborate with each other in order to create an atmosphere in which these people could freely live their lives without any prejudice and violence waiting for them at the corner. End Notes:
- Aashi Mishra, Decriminalisation of Section 377 – Just and Fair, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)
- Madhur Mahajan, Homosexuality in India – Decriminalisation of Section 377 of IPC, 2 INDIAN J. INTEGRATED RSCH. L. 1 (2022)
- Muskan Gupta, Section 377: A Wider Concept, 8 SUPREMO AMICUS 141 (2018)
- Muskan Gupta, Section 377: A Wider Concept, 8 SUPREMO AMICUS 141 (2018)
- Madhur Mahajan, Homosexuality in India – Decriminalisation of Section 377 of IPC, 2 INDIAN J. INTEGRATED RSCH. L. 1 (2022)
- Muskan Gupta, Section 377: A Wider Concept, 8 SUPREMO AMICUS 141 (2018)
- Prisha Sinha, Comparative Analysis of Landmark Judgments on Homosexuality in India: Section 377, 6 SUPREMO AMICUS 315 (2018)
- Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (Del. HC 2009)
- Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India)
- Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 SCC 438 (India)
- Aashi Mishra, Decriminalisation of Section 377 – Just and Fair, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)
- Shruti Bohra, Decriminalization of Section 377: A Brief Analysis, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India)
- Aashi Mishra, Decriminalisation of Section 377 – Just and Fair, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)
- Shruti Bohra, Decriminalization of Section 377: A Brief Analysis, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021)
