Decriminalization of Homosexuality
The society often discarded homosexuality and is considered as a social
stigma, but is it fair? Homosexuality is defined as the sexual attraction for
the other person of same gender. To have the partner of the same sex is against
the nature and the same is not an acceptable part of modern society. From time
immemorial, the institution of marriage takes place between a male and a female.
But with the passage of time, laws, rules, regulations have changed to ensure
the equality for men and women.
The gradual shift from the traditions to modernity has been observed now a day.
It is a matter of question, that:
Should the same sex marriages be given the full status of a valid marriage?
The Supreme Court has ruled out the difficulties of such couples and amended the
laws related to unnatural offences and homosexuality. As it is a well
established fact that law is dynamic in nature, it changes with the demands of
the people and the nation. So is with the case of LGBTQ rights (Lesbian, Gay,
Bisexual and Transgender Rights). The law needs to be amended in order to
protect the fundamental rights enshrined under Part III of the Constitution of
Section 377 of Indian Penal Code, 1860Initially, the section 377 of IPC criminalizes the sexual activity, which is
against the nature with any man, woman or animal, shall be punished with an
imprisonment which many extend to 10 years and shall also be liable to fine. It
is been clearly stated in section 377 that it is a criminal offence and
consensual sexual intercourse between two adults of the same sex was barred
under the said section, prior to 2018 SC judgment. Later on, this issue was
taken up in many cases, so that justice can be delivered equally to everyone and
Article 14 of the Indian Constitution to be preserved.
Naz Foundation v. Government of NCT of Delhi and Others (Concluded on
2nd July, 2009)
In this case, the issue of section 377 was taken up by the High Court of Delhi.
A writ petition was filed by Naz Foundation, an NGO, which contended that
section 377 of IPC is violative of Articles 14, 19 and 21 of the Indian
Constitution. The Foundation also contended that the action in the public
interest on the grounds that it’s work on combating the spread of HIV/AIDS was
being obstructed by discrimination against minority community. This
discrimination, the petitioners submitted, resulted in the denial of fundamental
human rights, abuse, harassment and assault by public authorities, thus driving
the gay community underground and subjecting them to greater vulnerability in
violation of their fundamental rights.
The court took into consideration the contentions being raised in various cases
by many NGOs to decriminalize section 377. It was held by the Delhi High Court
that considering consensual homosexual sex as a crime is a violation of
fundamental rights guaranteed under the Constitution of India. This High Court
verdict decriminalized homosexuality throughout India. This was later overruled
in Suresh Kumar Kaushal v. Naz Foundation, 2013.
Certain revisions and curative petitions were filed in the court of law
regarding this dispute. This matter gathered attention of the whole nation and
the people were curious about the final formulation of law concerning LGBTQ
rights. Then the final verdict was passed by the court in Navtej Singh Johar v.
Union of India in the year 2018.
Navtej Singh Johar v. Union of IndiaNavtej Singh Johar who was a dancer belonging to the LGBTQ community, filed a
writ petition in 2016 demanding equal rights in the society and right to choose
a partner of any sex as our fundamental right under Article 21 of the Indian
Constitution. Also, he contended that section 377 needs to be decriminalized on
the ground that it is violative of Article 14 that is Right to equality before
law. It is not right to say that carnal intercourse against the order of
Furthermore it was also contended that this provision violates Article 15 i.e
protection from discrimination because the said section discriminates on the
basis of gender. Along with the petitioner, certain other NGOs, religious bodies
also came forward to give their opinions on this matter.
The five-judge bench of the Supreme Court of India unanimously passed the
verdict and held Section 377 as unconstitutional. The court also overruled the
decision held in the previous case of Suresh Koushal v. Naz Foundation. The
decision in the case of National Legal Services Authority v. Union of India was
taken into consideration by the Supreme Court in deciding the said matter and
said that denying the gender identity of a person is violation of Part III of
the Constitution of India.
Also in the view of the decision of K.S. Puttaswamy v. Union of India, the
court held that denying the LGBT community its right to privacy on the ground
that they form a minority of the population would be violative of their
fundamental rights. Section 377 is an unreasonable statutory provisions which
does not have any effect on public order or decency so, it is violative of right
to freedom of expression.
The Court affirmed that that intimacy between consenting adults of the same
sex is beyond the legitimate interests of the state and sodomy laws violate the
right to equality under Art. 14 and Art. 15 of the Constitution by targeting a
segment of the population for their sexual orientation.
Therefore, choosing a partner of one’s own choice is a right enshrined in the
Constitution of India and such right cannot be violated on the ground that
consensual homosexual intercourse is against public morality. Therefore, section
377 is decriminalized b y the Supreme Court in 2018 which gave the equal rights
to LGBT community.
With the numerous historical judgments, the judicial system once again has
proved that justice is guaranteed to each and every citizen of India
irrespective of gender, caste, color etc. LGBT rights needs to be recognized as
these individuals were not treated equally by the society. They have to face the
social stigma and boycott by the general public in terms of employment, social
life and in every other aspect of life. They are also born free and demands
equal dignity and respect in the society. The laws were amended, giving them not
just the Right to Equality but ‘Right to Live’ freely. Once again our judicial
system declared a historic landmark judgment which will shine in glittering
colors in the books of law.
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