Recently the Pride Month has ended. Across the world, people consider June
month as a 'Month
'. By considering this month as a pride month, we
resoulte this month to the LGBTQ community people's struggle. Struggle against
the discrimination and social ostracization. In the many parts of the world
including India, many enterprises and events have been organised to cohort the
gays, lesbian, bio-sexual, and transgender people.
Also these events and enterprises are being held all over the world to make
everyone aware of the rights of the LGBTQ community. But if we look with a wider
vision we will find that this pride month celebration also signifies another
aspect and that is LGBTQ marginalisation from the society. Sexuality has always
been considered as a challenging issue in present times. In the 21st century,
where society considers itself as liberal in nature, it fails to some extent in
considering the legal rights of the homesexuals, lesbains, and transgenders.
It is broadly recognized that sex and sexual oriented minorities experience
social and political underestimation in many social orders. The degree of this
is a profound factor, contrasting across nations, states and international
areas. It is subject to relevant laws, legislative issues and social equalities.
Such underestimation brings about types of separation like mental and actual
maltreatment, rape, misuse, disregarding, constrained hetero marriage and
transformation treatment. This can prompt social and political seclusion and a
higher predominance of psychological well-being issues. Having legitimate rights
and insurance doesn't really convert into practicing those rights, so
segregation might be available where sexual orientation and sex minorities have
lawful security from separation.
History Of Sexual Minorities People
Albeit the LGBT group and people remain focused on disdain, viciousness, and
reaction all through the world, the hard work of activists and partners made it
conceivable to arrive at this period, where the culprits of brutality, not the
people in question (LGBTQ), are denounced as debilitated.
Social developments, coordinating on all sides of the world acknowledgment and
privileges of people who may today be distinguished as LGBT or eccentric,
started as reactions to hundreds of years of oppression by the chapel, state,
and clinical specialists. Where gay movement or aberrance from setting up sexual
orientation jobs/dress was prohibited by law or conventional custom, such
judgment may be conveyed through shocking public preliminaries, oust, clinical
alerts, and language from the platform. These ways of oppression settled in
homophobia for quite a long time yet additionally made whole populaces aware of
the presence of distinction.
Regardless of whether an individual remembered they, as well, shared this
character and were in danger, or set out to stand up for resistance and change,
there were not many associations or assets before the logical and political
transformations of the eighteenth and nineteenth hundreds of years. Steadily,
the development of a public media and beliefs of common liberties drew together
activists from varying backgrounds, who drew boldness from thoughtful clinical
investigations, prohibited writing, arising sex research, and an environment of
more prominent popular government.
By the twentieth century, a development in acknowledgment of gays and lesbians
was in progress, abetted by the social environment of women's liberation and new
anthropologies of distinction. Nonetheless, all through 150 years of gay social
developments (generally from the 1870s to the present time), pioneers and
coordinators battled to address the different concerns and character issues of
gay men, ladies recognizing as lesbians, and others distinguishing as sex
variation or nonbinary.
We know that homosexuality existed in old Israel essentially on the grounds that
it is disallowed in the Bible, though it thrived between the men and women in
Ancient Greece. The quiet blossoming of early trans or bisexual acknowledgment
in various native human advancements met with resistance from European and
The European forces authorized their own criminal codes against what was
called homosexuality in the New World:
The primary known instance of gay action getting a capital punishment in North
America happened in 1566, when the Spanish executed a Frenchman in Florida.
Against the arising setting of public force and Christian confidence, what may
have been found out about same-sex love or sexual orientation personality was
covered in embarrassment. Incidentally, both wartime struggle between rising
countries and the takeoff or passings of male warriors abandoned ladies to live
respectively and encouraged solid partnerships between men also. Same-sex
friendship flourished where it was disliked for unmarried, random guys and
females to blend or mingle openly.
In Western history, we find negligible legitimate examination of what was along
these lines called homosexuality before the nineteenth century, past clinical
works perceiving women with enormous clitorises as tribades
outrageous control codes for male gay shows. Early undertakings to fathom the
extent of human sexual directness came from European subject matter experts and
scientists including Carl von Westphal (1869), Richard von Krafft-Ebing (1882)
and Havelock Ellis (1897). Their arrangements were insightful to the possibility
of a gay or physically open heading happening ordinarily in a conspicuous piece
of mankind, nonetheless crafted by Krafft-Ebing and Ellis in like manner named a
"third sex" degenerate and strange.
In the United States, there were not many endeavors to make backing bunches
supporting gay and lesbian connections until after World War II. In any case, it
would not be until 1973 that the American Psychiatric Association dispensed with
homosexuality as an "disorder"
portrayal in its suggestive manual. All
through the 1950s and 1960s, gay men and lesbians continued being in peril for
mental lockup similarly as jail, losing positions, or possibly kid authority
when courts and focuses portrayed gay love as weakened, criminal or disgusting.
The gay freedom development of the 1970s saw heap political associations spring
up, frequently at chances with each other. Baffled with the male administration
of most gay freedom gatherings, lesbians impacted by the women's activist
development of the 1970s shaped their own cooperatives, record marks,
performances, papers, book shops, and distributing houses, and called for
lesbian rights in standard women's activist gatherings like the National
Organization for Women (NOW).
Social affairs, for example, ladies' music shows, book shop readings and lesbian
celebrations past the United States were phenomenally effective in getting
sorted out ladies to become activists; the women's activist development against
abusive behavior at home likewise helped ladies to leave oppressive
relationships, while holding guardianship of kids turned into a foremost issue
for lesbian moms.
Is Homosexuality a crime?
Homosexuality has its underlying foundations in antiquated history of India. A
reading material from old India named Rigveda dated back 1500 BC and numerous
models have portrayed and discussed sexual demonstrations between women.
Likewise this disclosure shows that there was a female world. Additionally the
homosexuality in the tantric standards demonstrates that the there was same-sex
Nevertheless the equivalent sex connections began losing its importance on the
appearances of the vedic Brahmanism and later on of British expansionism.
Indeed, even the writings like Manusmriti, there are arrangements of discipline
as loss of station, substantial money related fine, and strokes of whip for the
gays and lesbian conduct.
It is referenced that assuming the lady is hitched, all things considered,
discipline is shaving the lady uncovered, cutting two fingers and afterward a
visit on jackass. In the 21st century before 2018, the situations were that
there is no express notice of homosexuality in any of the rule book of India. An
individual was not responsible for being sexual yet can be arraigned for the
demonstration of homosexuality. Likewise till 2018 there was arrangement which
discussed the criminalisation of the equivalent sex under segment 377 of the
Indian Penal Code (IPC) 1860.
This 377 segment of IPC peruses:
Whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal shall be punished with imprisonment for life or
imprisonment of either description for a term which may extend to 10 years and
shall also be liable to fine.
The wrongdoing under this part was a non-bailable and cognizable offense. In
any case, what is this non-bailable and cognisable offense suggested?
This section constructed on the exceptionally old confusion that sodomy and
homosexuality is very much the same thing. Man was being portrayed as a type of
person who can only do intercourse with his partners. Here the only act of
intercourse held the significance, the emotions, fantasies, desires were taken
for granted and not given due consideration.
Along these lines, de jure, it is an endeavor to condemn sodomy while de facto
it is an endeavor to condemn and vilify homosexuality. Henceforth ordinarily
homosexuality was purchased as an offense under the IPC under section 377. This
section raises serious questions due to some words which are being given in the
definition such as what is natural? What is the order of nature? Indeed on the
off chance that one accepts that the 'request for nature' is penile-vaginal
intercourse between a man and lady, Sec 377 remaining parts equivocal about
which sexual demonstrations it tries to endorse.
For reasons unknown, homosexuality among guys and male and female and savagery
has been considered 'carnal intercourse' against the request for nature. However
there are no revealed decisions of the High Courts or the Supreme Court
proclaiming that cunnilingus or fellatio would be considered an offense culpable
under Sec. 377 of IPC. Although this section do not constitute any differences
between sodomy between males and males and females, but this section has
targeted always men more than women.
Hetero couples occupied with homosexuality had been likewise prosecuted under
this part. Marriage is taken as a suggested assent by the spouse for 'ordinary'
intercourse and not anal intercourse. On the off chance that the spouse
assented, both are blameworthy. on the off chance that she didn't, the only
spouse is liable. Under Sec. 13 of the Hindu Marriage Act, 1855 and Sec, 11 of
Indian Divorce Act, 1869 a spouse can apply for divorce if the husband has been
liable of homosexuality/brutishness. This clearly shows the violation of
fundamental rights. This is the gross violation of morality and right to privacy
which is enshrined under Article 21 of the constitution as a fundamental right.
The Journey of Decriminalisation of section 377
87 years after the law was made, India acquired her freedom from a frontier
past. However, Macaulay's heritage - the offense under Section 377 of the Penal
Code - has kept on existing for almost 68 years after we gave ourselves a
liberal Constitution. Gays and lesbians, transsexuals and bisexuals keep on
being denied a genuinely equivalent citizenship seventy years after Freedom. The
law has forced upon them a profound quality which is an erroneous anachronism.
The Indian Constitution expresses that 'there will be no discrimination on the
premise of the sex of an individual' which is a Fundamental Right of the
residents. 'The term 'sex' despite the fact that alludes to the organic sex of
an individual as male or female, is wide enough to incorporate sexual direction
additionally in the current setting.
Section 377 of the IPC classified consensual sexual intercourse between same-sex
as unnatural offence and against the order of the nature. And for which there
was a provision of punishment for upto 10 years of imprisonment. This lucidly
shows the centuries back old misconception pertaining to sex between adults
which survived till the 21st century.
In 2009 Naz Foundation (India) Trust challenged the constitutionality of Article
377 under Article 14, 15, 19 and 21 under the steady gaze of the Delhi High
Court. The Foundation fought that Section 377 mirrors an outdated comprehension
of the reason for sex, in particular as method for reproduction, and is not
welcome in an advanced society.
Further, the police had weaponized the arrangement, which obstructed endeavors
pointed toward forestalling the spread of HIV/AIDS. The Foundation refered to an
occurrence in 2001 in Lucknow where HIV anticipation laborers, who were
appropriating condoms to gay men, were captured on the claim that they were
plotting to submit an offense. The Naz Foundation additionally contended that
the arrangement was being abused to rebuff consensual sex acts that are not peno-vaginal.
This case was the first stone in the journey of decriminalisation of section 377
and in upholding the rights of the sexual minorities.
The Delhi High Court concluded that the section 377 cannot be used to punish two
consenting adults for sex as this violates the basic fundamental rights of
privacy under Article 21 of the constitution. The Honourable Delhi High Court
also held that categorizing people on the basis of sex vilaotes another basic
fundamental right i.e Article 14 of the constitution. After this judgment many
curative petitions filed against this ruling. In the petitions many
organizations argued the right to privacy does not give privilege to commit any
offense. Also many of them argued that decriminalisation of section 377 would be
a catastrophe for the institution like marriage and this will persuade the young
mind towards homosexuality.
In 2013 the Supreme Court while hearing Suresh kaushal case, overturned the 2009
Delhi High Court judgment that decriminalized the section 377 and criminalised
homosexuality once again. The ratio decidendi behind the Honourable Supreme
Court was that the the power and authority to decriminalize the homosexuality
lies with the parliament not with the courts of India. Further the honourable
court said that in 150 years of the time span only 200 people had been
prosecuted under section 377. Therefore the plight of sexual minorities¯
cannot be used as an argument in deciding the constitutionality of law.
Now several curative petitions filed against the judgment of the Supreme Court.
In the meantime when the judgment against the Suresh kaushal case was pending
before the court, five people from LGBTQ Community, named Navtej Singh Johar,
Ritu Dalmia and Ayesha Kapur, Aman Nath and Sunil Mehta, filed new petitions in
challenging the constitutionality of the section 377 as it criminalised the two
adults for having consensual sex between same-sex individuals.
Meanwhile on the journey of decriminalization of homosexuality, the second stone
of the success was put forward in the Justice K.S. Puttaswamy vs. Union of
case, in which the honourable Supreme court ruled that Right to
Privacy is an intrinsic part of life and liberty and thus it comes under the
umbrella of Right to life under Article 21 of the constitution. Further the
honourable Supreme Court concluded that bodily autonomy is an integral part of
Right to Privacy.
The Supreme Court on January 5, 2018, framed a constitution seat for hearing the
test to Section 377 in an extensive way, despite the fact that the curative
petition was pending before the Court. This could be because of the perceptions
settled on in the 9 appointed authority choice morally justified to Privacy case
which indicated the inborn unsoundness of the thinking and choice in Suresh
Koushal. The 5 appointed authority seats of Chief Justice Dipak Misra, Justice
A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu
Malhotra heard the matter from July 1o, 2018.
Finally the journey reached its destination on 6th September 2018 when
honourable Supreme Court struck down the section 377 of the IPC and
decriminalize the homosexuality. Now after the landmark verdict in the Navtej
Singh Johar vs. UOI; Akkai Padmashali vs. UOI,
the LGBTQ community is now
legally free to do consensual intercourse. But the court upheld provisions in
Section 377 that criminalise non-consensual acts or sexual acts performed on
The four decisions collectively referred to fundamental rights infringement in
perusing down Section 377. They found that Section 377 oppresses people based on
their sexual direction and additionally sex character, disregarding Articles 14
and 15 of the Constitution. Further, they decided that Section 377 disregards
the rights to life, poise and self-sufficiency of individual decision under
Article 21. At long last, they found that it hinders a LGBT person's capacity to
completely understand their character, by abusing the right to opportunity of
articulation under Article 19(1)(a).
Former Chief Justice of India Deepak Mishra rightly quoted while writing
judgment on behalf of Justice A.M. Khanwilkar and himself:
Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said,
•I am what I am, so take me as I am:
And similarly, Arthur Schopenhauer had pronounced,
Moreover the court found that:
- No one can escape from their individuality–. In this regard, it is
profitable to quote a few lines from John Stuart Mill:
- But society has now fairly got the better of individuality; and the
danger which threatens human nature is not the excess, but the deficiency of
personal impulses and preferences.
The emphasis on the unique being of an individual is the salt of his/her
life. Denial of self-expression is inviting death. Irreplaceability of
individuality and identity is a grant of respect to self. This realization
is ones signature and self-determined design. One defines oneself. That
is the glorious form of individuality.
Further in the judgment Doctrine of progressive realization of rights was
talked about. In this former Chief Justice of India, concluded that When we
talk about the rights guaranteed under the Constitution and the protection
of these rights, we observe and comprehend a manifest ascendance and
triumphant march of such rights which, in turn, paves the way for the
doctrine of progressive realization of the rights under the Constitution.
This doctrine invariably reminds us about the living and dynamic nature of a
The Constitutional Courts, while interpreting the constitutional provisions,
have to take into account the constitutional culture, bearing in mind its
flexible and evolving nature, so that the provisions are given a meaning which
reflect the object and purpose of the Constitution.
Retd. Justice Deepak Mishra compared two sections of the IPC. section 375 which
talks about the rape and section 377.
He analyzed Section 375. Rape- A man is said to commit "Rape" if he:
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her to do so
with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration
into the vagina, urethra, anus or any part of body of such woman or makes
her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her
to do so with him or any other person, so he concluded that to commit rape
first it should be against her will, secondly it should be without her
consent and thirdly With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death or of
hurt. This shows that section is gender- specific, this section is to
protect women as only man can rape. He delivered that when we conclude the
section 375 we find that consent and will is important to decide whether the
rape has committed or not. But unlike section 375, section 377 is gender-
neutral as it uses the word whoever¯
in the reading as:
Section 377. 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
Further he inferred that the premise on which the section 377 criminalize
homosexuality is carnal intercourse and it is being argued that the carnal
intercourse between two consenting adult is against the order of the nature, but
it lead to raise a question that what is exactly against the order of the
nature? Moving forward former chief justice mentioned that the most common
argument against criminalizing homosexuality is the essential purpose of the sex
is to procreate.
For this argument the honourable Retd. Justice Deepak Mishra
penned that With the passage of time and evolution of the society,
procreation is not the only reason for which people choose to come together,
have live-in relationships, perform coitus or even marry. They do so for a whole
lot of reasons including emotional companionship.
Homer Clark writes:
most significant function of marriage today seems to be that it furnishes
emotional satisfactions to be found in no other relationships. For many people
it is the refuge from the coldness and impersonality of contemporary existence.–
In the contemporary world where even marriage is now not equated to
procreation of children, the question that would arise is whether homosexuality
and carnal intercourse between consenting adults of opposite sex can be tagged
as -against the order of nature.
It is the freedom of choice of two
consenting adults to perform sex for procreation or otherwise and if their
choice is that of the latter, it cannot be said to be against the order of
nature. Therefore, sex, if performed differently, as per the choice of the
consenting adults, does not per se make it against the order of nature¯.
In the end the Supreme Court stated that the Yogyakarta Principles on the
Application of International Law in Relation to Issues of Sexual Orientation and
Gender Identity' should be applied as a part of Indian law.
The Yogyakarta principle talks about the freedom of sexual orientation and
gender identity as basic Human Rights. It was scripted in Yogyakarta, Indonesia,
by the expert group of the Human Right pundits.
India, the queer community is as yet a slandered and imperceptible minority.
Further, whatever queer community has acquired, it have been conceded by the
legal executive; not by governing bodies. Regardless of legal decisions, India's
sexual minorities face separation in business, medical problems and individual
rights. This makes it incongruent with the nation's living, liberal and
Justice Anthony Kenedy, the judge of US Supreme
court said in Obergefell vs Hodges (2015) that we cannot compromise on the basic
human right of marriage and cannot deny to the same-sex people. As of now 2021,
same-sex has been recognized in more than 29 countries, it is high time we
should make same-sex marriage normal like other marriages.
In Navtej Singh Johar
Justice R F Narihman said that the Government should strengthen the rules
and regulation in public places including public offices in order to ensure no
threat to homosexuals. Further he said the schools and colleges should also
normalize being around homosexuals, and they should be cohorted to read, accept
and expose to sexual orientation and gender identity.
The LGTBQ community needs
an anti-discrimination law that empowers them to build productive lives and
relationships irrespective of gender identity or sexual orientation and place
the onus to change on state and society and not the individual. Article 15 of
the constitution talks about that there should be no discrimination on the basis
of sex and gender. If we have to remove the discrimination from the society we
should extend the scope of the Article 15 and add grounds of non-descrimination
including sexual orientation and gender identity.
Recently the government of the Karnataka notified the 1% reservation to the
transgender people of that state. This reservation will be applied to any
services or post in all categories of employment. This 1% reservation is
available for all the categories be it General, or SC/ST transgender person.
Incentives like this will cohort the people from marginalisation to come in the
main society and by this there is a chance we can witness the change in society.
The Constitution is perceived and portrayed as a beacon of fundamental rights.
But in this race still the LGBTQ Community is far away from the winning line. If
we have to normalize the LGBTQ society and their rights, the power and
responsibility should not only be left to the government officials, the onus
should also be on the civil society to accept the rights of LGBTQ community.
- Harsh Shrivastav, Student At Lloyd Law College, Gr. Noida
- Shreya Bhoyar, Adjudication And Justice, 2nd Year, Maharashtra
National Law University, Nagpur