Abstract
Indian society has never been much welcoming to homosexual society. They have always been made vulnerable to prosecution and discriminated against. Even though there are sufficient examples of homosexuality being prevalent in ancient India, up until 2018, homosexual relations between adults giving their consent to the same were still considered to be illegal. After years of struggle, they have finally been liberalized. This article mentions how section 377 of the Indian penal code has been violative of articles 14, 15, 19(1)(a), and 21 of the Indian constitution. The long and strenuous fight for justice for the rights of the homosexual community of India has been portrayed in this article.
Keywords-
Homosexuality, article 14, article 15, article 19, article 21, section 377, decriminalization, Navjet Singh Johar, right to privacy
History of Homosexuality
For a very long time, the concept of homosexuality has been considered taboo in Indian society. It was considered unnatural and even disease by many. Although India is filled with heavily religious people it seems that they didn’t feel the need to include homosexuality in their beliefs, which is something that was indeed mentioned in many ancient books and architecture. Even so, same-sex relationships and marriages were considered illegal.
Some of the examples of homosexuality being readily accepted in ancient history are mentioned below. The famous temple of Khajuraho has explicit images showcasing engagement in homosexual acts in ancient times. The renowned epic Mahabharata includes the character Shikhandini was a transgender warrior who was responsible for the death of Bhisma.
Homosexuality is often considered an evil of western culture. However, all these examples show that the idea of homosexuality isn’t a westernized concept that has forced its way into the Indian culture but is a deep-rooted concept that has been in existence for a long time.
Homosexuality under the Indian penal code
Section 377 of the Indian penal code, refers to unnatural offenses. Before 2018, any sexual act between people of the same gender, regardless of consent, was considered illegal and anyone indulging in the same could face imprisonment. This law was held to be discriminatory against the LGBTQ community and has been criticized for not being in tune with modern morality. On 6 September 2018, the supreme court finally decriminalized the 157-year-old British-era law that criminalized even consensual homosexual relations.
Timeline of decriminalizing homosexuality
Naz foundation vs Union of India and others–
In 2001 a petition challenging the constitutional validity of section 377, was filed by Lawyers Collective on behalf of Naz Foundation before the Delhi High Court. It argued to decriminalize consensual same-sex relationships between adults. After much delay, in 2009, the Delhi High court passed the judgment that Section 377 had to be read down to exclude sexual acts between consenting adults, regardless of sexual orientation. The high court held that criminalizing such an act violated the right to privacy and personal liberty under Article 21 of the Constitution, the right to equal treatment under article 14, and the prohibition of discrimination under article 15.
Suresh Kumar Kaushal v. Naz Foundation–
In 2013, this decision was overturned in the Koushal Judgement, declaring that Section 377 was not unconstitutional after writ petitions were filed by several religious political, and social organizations and individuals.
Navjet Singh Johar vs Union of India–
In 2016, Navjet Singh Johar filed a writ petition in the supreme court challenging the constitutionality of section 377. He sought the inclusion of the right to sexual autonomy and to be able to choose a sexual partner according to their preference under the ambit of article 21. He also said that section 377 discriminates against the LGBT community by denying them the right to express their sexual identity. Section 377 also violates the right to privacy by putting the LGBT people in fear of humiliation due to their lifestyle.
In 2017, the Supreme court unanimously ruled the right to privacy as a fundamental right and also said that sexual orientation is an important aspect of privacy. Discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual, raising the hopes of those campaigning against section 377.
Finally, in 2018 a five-judge bench headed by Chief Justice Dipak Misra, the unanimous verdict was passed declaring the portion of section 377 of the IPC,1860 unconstitutional that criminalizes consensual sexual acts of adults in private, marking a successful end to a long struggle for justice.
Section 377 of IPC and the Indian constitution
Part 3 of the Indian constitution primarily talks about human rights. Section 377 of IPC was violating the fundamental rights of a particular group of people. They unjustly discriminated against homosexuals from others under articles 14, 15, and 21 of the Indian Constitution.
Article 14 of the Indian Constitution provides that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The doctrine of intelligible differentia is followed which states that there should be a reasonable nexus for any kind of discrimination that may take place. The explanation behind this is that the provision should be clear so that any person affected by it should know the reason why it is being enacted.
In the case of section 377 of IPC, there isn’t any intelligible differentia for separation of the homosexual class from others if the. The motive of separating consensual homosexual acts and consensual heterosexual acts isn’t clear. This vagueness of the provision makes it unconstitutional.
Article 15(1) of the Indian Constitution provides that, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” The idea of ‘sex’ can’t be limited only to the biological male and female.
Article 19(1)(a) provides that, “all citizens have the right to freedom of speech and expression”. Discriminating against homosexuals and denying their right to identifying with their sexual orientation under section 377 is violative of this section.
Article 21 of the Indian constitution has a wide scope and includes the right to dignity, privacy, and autonomy as fundamental rights. It states that no individual shall be deprived of life and personal liberty other than according to any ‘procedure established by law’. The Supreme Court found Section 377 to violate these constitutional rights.
- Right to Privacy-
Privacy is considered to be that area of someone’s life that no reasonable person with the understanding of the needs of the community should invade. Even though there isn’t any law Indian constitution that explicitly provides the right to privacy, article 21 included this right after Puttaswamy vs Union of India.
In the case of Navjet Singh Johar vs Union of India, it was held that not granting the right to privacy to the homosexual community just because they are a minority is violating their fundamental right to live with dignity. Any sort of sexual relationship between two consenting people in private is not harming public morality.
Criminal provisions are provided to prevent harm. However, in the case of section 377 of IPC, no harm is caused if the act has been done consensually between two adults.
- Right to dignity-
The case of Maneka Gandhi v. Union of India held that the right to live with human dignity is incorporated in the right to live. This case gave a new dimension to article 21.
Section 377 of IPC not only exposes the sexual orientation of a person but also has also declared punishment for practicing it. This affects the dignity of the person as it violates his right to live a dignified life. Section 377 was held to be denying the dignity of an individual and criminalizing him or her core identity solely on account of their sexuality was violating Article 21. This scenario has to change to give security and equality to all the citizens of India including homosexuals.
Conclusion
The Indian society has proved itself to be quite homophobic. It wants a law, that was taken from the British, to be enforced in India long after it has been removed in Britain, as early as 1967. Despite the judgment passed by the Supreme Court, homosexuals are still not provided equal treatment. Although it has been 3 years since the decriminalizing homosexuality judgment was passed the Indian society is yet to accept it. It will be incorrect to say that there hasn’t been any change at all in the acceptance of homosexuality however a majority of society still ridicules them.
Society must change their outlook towards this community and make them feel welcome instead of thinking of them to be unnatural or disease to society. Although same-sex relationships have been legalized in India, same-sex marriages are yet to be legalized.
