Homosexuality-Legal or Not? In reference to Navtej Singh Johar vs. Union of India, 2018

Homosexuality-Legal or Not

Generally, homosexuality refers to romantic and physical attraction or relation to members of their own sex.

It is a sexual orientation, as opposed to a gender identity such as male, female, or nonbinary. People who are homosexual could refer to themselves as gay, lesbian, queer, or several other terms basically LGBTQ.

What is Homosexuality?

There are many different synonyms for “homosexuality,” as the term itself is outmoded. The most common synonym is “gay” or “lesbian”. Gay usually means a man is attracted to another man, while lesbian means a woman is attracted to another woman. “Queer” is a broad term that refers to someone who is not heterosexual (attracted to the opposite sex) or (has a gender identity that corresponds with their assigned birth gender). “LGBTQ” is an acronym that stands for lesbian, gay, bisexual, transgender, queer, and questioning. It usually defines a community of individuals rather than a specific person.

In this writing, the author has tried to convey some information about whether homosexuality in India is legal or not by disclosing its facts in criminalisation, decriminalisation, legislation, and various judicial precedents.

From a legal perspective what homosexuality is?

Homosexuality has an unsettled legal and social status in India. Indian society appears unsure and clutched between popular views and the call of their own ethics. These societal and legal perspectives, in turn, have an appreciable psychological impact on the members of the homosexual community, also called the LGBTQ (lesbians, Gays, Bisexuals, Transgenders, Queer) community in the local grumble. There are some changes since ancient times in the mentality and the thinking of people.

Section 377 of the Indian Penal Code came into force more than a century and a half ago. In

1861, When India was still being ruled by the British. It was modelled on the Buggery Act of 1533[1], which was re-enacted by Queen Elizabeth in 1563 and criminalised “unnatural offences”. The Buggery Act was passed during the reign of King Henry VIII, which made sodomy illegal. According to the Act, “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.”

Although India gained independence from Britain in 1947. But its criminal code and laws continued to be based on the one that had been developed during the British Era. , Chapter XVI, under section 377 of the Indian Penal Code[2] contains provisions relating to unnatural offences. It was considered one of the ‘cruellest’ provisions in the Indian legal system in the previous time when homosexuality among individuals of the same sex was also considered a criminal or unnatural activity.

Any individual who voluntarily engages in sexual intercourse against the order of nature with any man, woman or animal shall be punished with life imprisonment or imprisonment for a term not exceeding ten years and shall also be charged with a fine or both. The term “against the order of nature” has not been defined in any source of law.

Section 377 is considered a serious offence; hence, it is cognizable and non-bailable in nature. It can be tried in the court of a magistrate of first class. This is the straight nature of Section 377 of IPC.

But it challenges the Constitutional Validity of India

Section 377 of the Indian Penal Code challenges the constitutional validity of the Indian constitution because the Indian Constitution guarantees its citizens Fundamental Rights which are deemed to protect the rights and liberties of the people against the encroachment of the power delegated by them to their State or Government. These rights are essential to the individual and provide them with intellectual, moral, and spiritual status to them.

Section 377 of the IPC was a serious infringement of the fundamental rights of the citizens of India. It was violative of Articles 14, 15, 19 and article 21 of the Indian constitution. It harms the person’s dignified life and right to privacy also.

How the fight against the law started

Historically the mentality of the commons was manipulated or influenced by the laws, statutes, and implementations that this practice of homosexuality is immoral or

unnatural. But the movement to repeal section 377 was initiated by AIDS Bhedbhav Virodhi Andolan (ABVA) in 1991. Their historic publication, less than gay: A citizens’ report on the status of homosexuality spelt out the problems with section 377. Through that report, they very actively asked for the repeal of section 377.

The case again was revived in the next decade, led by the Naz Foundation (India) Trust. The case of Naz Foundation v. Government of NCT of Delhi (2009)[3] is one of the most influential decisions made by the case that was heard by two-judge bench of Delhi High Court justices. The Naz Foundation (India) Trust is a social activist group which filled a (PIL) public interest litigation in the Delhi High Court in 2001, requesting a proper legislation of homosexuality between consenting adults. But in 2003, Delhi High Court refused to entertain that petition regarding the legality of homosexual intercourse between individuals, saying that the petitioner had no locus standi in this serious matter.

But the Naz Foundation did not stop there, and they further moved to the apex body of India which is the Supreme Court and appealed against the previous decision given by the Delhi High Court to dismiss the petition on authentic technical grounds. And then the Supreme Court decided that the Naz Foundation can again file a public interest litigation (PIL) in this case and further sent the matter back to the Delhi High Court to conciliate it on merit.

As a result, soon the petition got its approval, In the month of May 2008, the seven years old petitions came up for hearing in the Delhi High Court. Finally, the judgement was delivered on 2nd July 2009 when Delhi High Court overturned the 150 years old section. Thus, legalizing consensual homosexual activities between adults. This was the very first time the people of the LGBT community get victory in this fight for justice. You and I can’t even imagine the level of happiness. Even though the world was not with them, society was not with them, but the law was with them.

But this happiness didn’t last for long. In 2013, The Supreme Court quashed the High Court order and held that the order was legally unsustainable.

“People mostly criticize what they can’t understand. the lines said by Charles Dickens was clearly evident after the judgement delivered by the Apex Court.

Support and Criticism 

There were also many individuals or groups of people who were against homosexual practice because according to their ideology love and affection are the relation or bond of two religions or communities. But people had moved on society had moved on according to them now not only two religions or communities were part of it inside two minds were there which wants to be connected and joined despite all the boundaries of the society, despite their same gender.

There were many people who supported the LGBT community. Individual personalities like Vikram Seth (the greatest novelist and poet of India) Arun Jaitley (former Finance and Corporate Minister of India), and Anbumani Ramadoss (a politician from Tamil Nadu) freely supported the community of LGBTQ. Indian National Congress also supported Homosexuality and opposed section 377, Shashi Tharoor one of its old members also introduced a bill for the repeal of section 377 but it was rejected in the house.

The Landmark case – Navtej Singh Johar vs. Union of India 

Bench

There were 5 judge benches held for this landmark judgement starring Chief Justice Dipak Mishra, Justice R. F. Nariman, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice A. M. Khanwilkar.

Facts of the Case

In the year 2016, Five people filed a new writ petition in the Supreme Court Challenging the Constitutional Validity of section 377 of IPC. The petition was filed by Navtej Singh Johar (a well-known Bharatnatyam dancer), Sunil Mehra (a journalist), Ritu Dalmia (a chief), Keshav Suri and Ayesha Kapur together.

Issues Raised

  • Whether Section 377 of the IPC violates Article 19(1)(a) of the Indian Constitution which is a fundamental right to freedom of speech and expression as it criminalises the basic right to express the sexual orientation of persons belonging to the LGBTQI+ community?
  • Was the appraisal given by the Supreme Court in its own judgement in the Suresh Kaushal case, correct?
  • Whether Section 377 of IPC is violative of Articles 14 and 15 as it allows discrimination against LGBTQI on the basis of their “sexual orientation” and “gender identity”?
  • Whether Section 377 of IPC violates the right to autonomy and dignity of LGBTQI people provided under Article 21 by penalising private consensual acts between same-sex persons?

Arguments by petitioner

The counsel for the petitioners raised with reference to the case K. S. Puttaswami v. Union of India5, which laid down that “sexual orientation is also a required element of privacy. Therefore, the protection of both, sexual orientation and the right to privacy of a person are really very important, without the enjoyment of these basic and fundamental rights, a person may lose the significance or identity of their life and personality which is very much important to mere survival. The right to privacy also extends to LGBTQ who have a right to exercise their choice without any fear of being subjected to humiliation. The Supreme Court is the guardian of the constitution, and it is this Supreme Court who is “the final arbiter of constitutional rights” and that should protect the constitutional

  • 2018 10 SCC 1
  • Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

morality and do away with social disregard. It was also contended that the LGBT community feared prosecution and prosecution upon revealing their identity and therefore they never approach the court. They seek help from parents, teachers, and NGOs to speak out for themselves.

Arguments by respondent

The counsel asserted that Article 15 of the Constitution was not violated since it only prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation.

They placed dependency on the case of Fazal Rab Choudhary v. State of Bihar[4] wherein it was spotted that the section inferred sexual perversity or sexual bestiality that was against the order of nature and it was very well within the jurisdiction of the State to put up ‘reasonable restrictions on the activities between a man and woman that were offensive, perversive or against the order of nature.

Also, the Court does not have the authority to amend a statutory provision or add or remove words from it. And, If the section is decriminalised insofar as it penalizes sexual orientation between two people of the same sex persons, it will affect the family system and the institution of marriage, traditionally believed to happen between a male and female, it will give rise to a number of social issues, which the legislature cannot accommodate at this point of time, and these issues will create a menace for the existing laws too.

“In the difficult battle going on for so many years, perhaps God had mercy.” 

In the middle of all this. In 2017 there came a judgement of the supreme court where the court unitedly ruled that the right to individual privacy is a Fundamental Right in the constitution of India. The judgement also mentioned that the right to privacy and the right to sexual orientation lies at the core of the Fundamental Rights guaranteed by articles 14, 15, and 21 of the Constitution. The decision gave hope to the LGBTQ community or activists that the court would soon strike down section 377 of IPC. Section 377 of the Indian Penal Code was violative of the articles mentioned by the court in the said judgement.

The Judgement

It was in 2018 when the hearing of the petition that challenged the constitutional validity of section 377 of the Indian Penal Code was started. The petition urged the court that section 377 of IPC is unconstitutional and should be curbed down as it is violative of – • Article 14 (equality before the law).

  • Article 15 (prohibition against discrimination on grounds of religion, race, caste, sex or place of birth).
  • Article 16 (right to life) of the Indian constitution.

The hearing went on for four days, after which the court came with its verdict. 8th

September 2018 was the date when finally, the judgement came and also when the Supreme Court reversed its 2013 judgement of restoring section 377 of IPC. The court stated that section 377 of the Indian Penal Code, which criminalises homosexuality is now unconstitutional and hence void. The court also unanimously declared that the portions of the law relating to consensual sex between adults is unconstitutional. However, the other remaining portions of section 377 relate to sex with minors, non-consensual sex between adults and bestiality still remain in force.

Social Impacts brought by this judgement: 

This judgement changed history itself, Justice Indu Malhotra said: History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed in the LGBTQ community.

Not so soon but also not so late, after 157 years homosexual community got what they deserve, A valid legality to their relationship in our democratic country. Decriminalising consensual sex between adults of the same gender made India join 125 nations where homosexuality is legal. This was the prize that LGBTQ activists got for their struggle for seventeen years. The constitution guarantees equal rights, and this cannot be denied to any class of citizens by giving reference to public or religious morality.

Has section 377 been completely removed?

The straightforward answer is No. The section covered all unnatural offences and even the act done between two adults consensually. The amended provision only decriminalises the sexual act between homosexuals done with consent. The judgement, however, opened the doors of the Supreme Court for the community to enforce all fundamental rights and push the states to amend all laws to recognise the rights of the LGBTQ community in all spheres marriage, inheritance, and everything.

Suggestions:

Some good steps to greater LGBTQ equality:

Encouraging LGBT activism: To build the leadership capacity among the LGBT community. LGBT-led groups have to come together to reflect on how to push forward rights defence and protection concerns.

Anti-LGBT violence: Stopping the violence or disrespect of the LGBTQ community or people.

There should be proper respect for them everywhere in society.

Use of tv and films: society should adopt the use of tv and films to spread awareness among people on the widest level to change their mindset of them. Also, media is an essential tool to reach a mass audience and to grow acceptance.

Taking discrimination cases or complaints to the courts: Now LGBT community lives in a country which is now providing constitutional rights to file a complaint if any kind of discrimination happens to them. Then they should use the courts to challenge discriminatory laws and policies.

Set up NGOs for them: Government should set up NGOs on the district level or lower level so that the LGBTQ community can seek help from them.

Big business can help: The business community can act like independently from the state. They can also help in public speaking for the LGBT community.

Conclusion

They struggled, they fought and finally they won but is this the end of it? Is their fight completely over? The answer is completely no here. Judgement alone does not change people’s lives or thinking. After the supreme court decision or judgement practically, all political parties appeared to accept or agree. There was no large manifestation or demonstration by people against it. It’s just the fear of homosexuality that people have because they are unaware of the real facts. The majority of people need to understand that homosexuality is not an addiction or a mental state of a person. But something innate and natural to a human being. But we also have to agree with the fact that change in a society is a slow process and it requires constant effort on the part of those who wish to see the change. The Supreme Court judgement already laid the foundation for it. All we need to do is raise awareness and cultivate empathy because ignorance is the only main reason for homophobia in people. So, let’s just put the effort into the right thing and hope for a better and safe society with the equal status given to all.

This article was written by Rayma Kumari from Lovely Professional University– Student BALLB (Hons) Year: 2nd, 3rd semester.

Reference

[1] “Walter Hungerford and the ‘Buggery Act’ | English Heritage”

[2] Indian Penal Code Bare Act, 2022

[3] http://lobis.nic.in/dhc/APS/judgement/02-07-2009

[4] AIR 1983 SC 323, 1983 CriLJ 632, 1982 (1) SCALE 803, (1982) 3 SCC 9

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