People around us get torture because of who they love or like or who they are.
LGBTI is basically an acronym for Lesbian, Gay, Bisexual and Transgender
LGBTI are being given many rights around the world. In many countries they have
every right given but there are many countries where there are still no rights
given to them.
In India, after a long battle, they were given rights. The amendments were being
made in laws so that they get their right to live equally and respectfully.
In India, the section 377 of Indian penal code deals with the unnatural
offences. In this section before any amendment it also contained that having
intercourse in same sex was to be considered as unnatural offence. But after the
amendment that was made on 6th September 2018, through which the supreme court
removed from section 377 of the IPC by legalizing the very old colonial law
which criminalized consensual gay sex. And hence legalized the consensual gay
sex and was not to be considered as unnatural offence.
History of LGBT's in India
in the late 19th century the term homosexuality was used as morbid sexual
passion between members of same sex
. And this was considered unnatural. In
India it was depicted mainly through images on temple walls, it is also
described in ancient books and there were many sacred narratives. In India the
concept of modern societal homophobia was introduced and enactment of section
377 was there by British which is stood in the laws. It criminalized anal sex
and oral sex under section 377 of Indian Penal Code.
After independence there were cases filed and few non-governmental organizations
started to protest against the criminalization of consensual gay sex. As the
section 377 stated Unnatural offences-
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 used to include the explanation point
in which it was stated that the consensual gay sex comes under the unnatural
After many petitions and cases, the supreme court decriminalized the
homosexuality and removed the parts of the section 377 of Indian penal code
which were violative of rights of the LGBTQ community.
What were the issues involved in the petition?
The issues included the problems of them and the violation of their rights. This
includes the violation of their rights under article 14, 15,19,21 which is
equality before law; prohibition of discrimination on basis of race, religion,
caste, sex, or place of birth; freedom of expression; protection of life and
liberty under the constitution. The right to privacy and protection of the
sexual orientation lie at the core of fundamental rights which was also
The issue/problem also included the social acceptance and legal rights
that lacked in the society for them. The community was also not given adequate
access to services in the health system. It was also considered against the
moral values of the society.
The legal journey of decriminalizing the homosexuality
There was a very long journey of fighting for the rights of the LGBTQ community.
There were landmark judgements that were in favor and against the LGBTQ
community. The journey to decriminalize the homosexuality was started in 1994
were the AIDS Bhedbhav Virodhi Andolan, an organization filed the writ petition
in Delhi High Court challenging the constitutional validity of section 377, it
was the first legal protests against governmental repression of LGBTQ community
but later it was dismissed.
The Delhi High Court in the case of Naz Foundation v. Government of NCT of
 struck off the section 377 of I.P.C. and legalized the consensual
homosexual activities between the adults as it was violative of Article 14,15
and 21 of constitution .
The homosexual acts, later were again criminalized in 2013 where the supreme
court said that plight of sexual minorities can not be used as the basis of
argument for deciding constitutionality of law as it was argued that less than
200 people had been prosecuted under this section in last 150 years. Also the
court said that legislature should look into the desirability of deleting the
Further in the case of Justice K.S. Puttaswamy v. Union Of India
supreme court ruled that the right to privacy i.e. the fundamental right is
basic to life and liberty and this comes under article 21 of constitution and
declared that human autonomy is the integral part of right to privacy and has
its domain to sexual orientation of individual.
A petition was filed in the same year when the judgement of Suresh Kumar Koushal Case
passed that was in 2013. this petition was filed pleading that
section 377 violates their fundamental right to life and right to liberty which
was snatching their individuality and the petitioners also said that they filed
this petition stating that it is not much about sexuality but about the
constitutionality of the right to live or to love or to be who they are.
gave the historical judgement which was decriminalizing the homosexuality and
this dismissed the position that LGBTQ community constitute tiny minority and
that there is no need to decriminalize homosexual sex which was stated in Suresh
Kumar Koushal Case
in 2013. And this historic judgement included the five-judge
bench who included CJI Dipak Mishra, Justices R. F. Nariman, A. M. Khanwilkar,
D.Y. Chandrachud and Indu Malhotra. They said that right to privacy is the part
of right to life and this fully applies to the LGBTQ community. Therefore,
after the very lengthy combat the LGBTQ community got their rights and hence the
homosexuality is no more an unnatural offence.
The Impact of decriminalizing the homosexuality
The impact of decriminalizing homosexuality can be seen as by the changing
attitude of the society and the families are changing their perspective and
accepting their children as who they are. The societies anti-LGBTQ attitude has
changed and the world is now accepting the changes and more awareness is being
forwarded through education, counselling and many other ways. There is more
increase in self-acceptance and confidence is being built up in the people. The
people claim that they have improvements in self- awareness, self- confidence,
self – acceptance and they also have gained emotional security after the
The majority of the people has become fearless and more confident,
after the judgement they are able to stand for themselves even more confidently
and bravely. As earlier police were also generally abusive towards them whether
it was verbally or physically but now after judgement it has reduced
significantly and this shows that it is a positive sign towards the fact that
homosexuality is no more a punishable offense.
The major impact is that the general acceptance of LGBTQ community has
increased in the country since the judgement is been passed. With this total
acceptance there is gradual process that certainly has changed the perspective
of the society and more awareness has been there.
The media has also played a
big role in the process as there has been more news about this topic and making
the people more aware about accepting the change and to change their thinking
and there has been movies made related to section 377 to generate more social
awareness and acceptance.
there were many respondents whose families did not use to understand them or to
accept them as who they were. The families use to discriminate and there were
many others who were even sacred of telling to their families but now after the
judgement they are able to gain confidence and tell their families about them
and who they love. The families have also starting to accept the change.
Challenges even after decriminalizing
There are still many challenges that need to be overcome which are faced by the
LGBTQ community. The biggest challenge ahead is the Same sex marriages, even
though the judgement has been passed and consensual gay sex is being
decriminalized but the same sex marriages are still not approved in India.
They still cannot marry each other being in India where marriage is the biggest
thing the most sacred part of many cultures and the LGBTQ community can still
not experience it.
the next challenge could be that they are still not allowed to adopt which means
that they could stay together but cannot have the child. This is also one of the
major encounters that the people need to go through.
there is still no official data about the LGBT population in India where more
than 2 million gay people live and still no official information is in the
system about them.
there is still particular law about the LGBT's, there is no law for the case
where the protection of transgender people should be done from rape or any other
kind of crime. There is online petition submitted for the protection gay men and
women but still the law is silent.
This concludes that decriminalizing the homosexuality has ensured the sexual
minorities in India a few steps further in living with the dignity. The undoing
of the section 377 ensures more confidence among the LGBTQ community which leads
to self-confidence and steady growth of the country. this shows that the society
is changing and it changes the attitude of the people in general.
Decriminalization has helped in the acceptance by the society and the families
of the people. Though there still little bleak in acceptance but it will also
improve with time and the further amendments relating to this section and in
favor of the community.
Though the judgement has helped the LGBT community in the issue of the
discrimination and other aspects but it still needs an anti-discrimination law
which would empower them to built productive lives and relationships as there is
still petitions which are for the legalization same sex marriages. The
government still need to make many changes in order to ensure that LGBTQ
community is not denied and public service.
There is still a long road ahead for
the transgender people that they need to endure. There will be many challenges
in front of them but now after the judgement they will no longer be alone in the
fight as the society will also be there with them because the decriminalization
has made society open there eyes and support them and help them live there
normal lives as every person of the country lives.
With this article I hope that I could help you with what you wanted.
- As mentioned in https://indiankanoon.org/doc/1836974/ as accessed on
- AIR 2009
- Suresh Kumar Koushal v. Naz Foundation AIR 2013
- AIR 2017
- Navtej Singh Johar vs. Union Of India AIR 2018