Arguments Against the Decision of High Court in The Case Naz Foundation Vs Govt of NCT of Delhi

This article was written by Simran Singh, a student of Lovely Professional University, 4th year , BA. LLB (Hons.)

OVERVIEW OF THE CASE

Naz Foundation vs Govt of NCT of Delhi is a landmark judgment case that was decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual acts between adults in private as a crime is the infringement of our Fundamental Rights. The verdict resulted in the decriminalisation of consensual homosexual acts throughout India. This judgement was later overruled by the Supreme Court in Suresh Kumar Koushal vs Naz Foundation[1], in which a 2-judge bench reinstated section 377 of Indian Penal Code. But this judgement was again overruled in 2018 in the case of Navtej Singh Johar vs Union of India [2]which decriminalised homosexual acts involving consent.

ARGUMENTS AGAINST THE DECISION OF HIGH COURT IN THE CASE NAZ FOUNDATION VS GOVT OF NCT OF DELHI

  • Laws are made from customs, one of the very first thing we learn in law school is that customs which are age old and have been consistently followed become a law themselves3. Throughout history we have seen bits and pieces of a homosexual acts but never has it been practised like a custom or has been consistent in nature. Always, the practice of homosexuality has been considered a taboo and sin by society. The human race is supposed to be evolving, the very essence of the existence of homo sapiens is to procreate and make every upcoming generation better than the previous ones. But this act of homosexuality takes away this very essence and will make the human race stagnant just like the water of a pond becomes stagnant as it stands at one place, whereas the same water if flows through a river remains free.
  • We have seen throughout history that civilisations start from scratch then become prosperous and eventually see their downfall because of the tiniest of sparks. Similarly, this act of homosexuals if becomes prevalent will stop humans from evolving, make the upcoming generations stagnant and this act will become the reason for the end of our mankind.
  • Homosexuality can lead to the shortage of either of gender from time to time. A time will come when maybe there will be a larger number of females than males and vice versa. A lot of them would like to follow the then-prevalent custom of homosexuality and lead to a smaller population. This cycle will continue then a time will come when governments. And scientists would forcefully put a male and female together and make them procreate, in order to avoid a potential existential human race.
  • Here in India, relationships are considered to be a stepping stone to the bigger decision of marriage. By decriminalising homosexuality, we will be opening flood gates to innumerable issues. Once, same gender relationship is legalised then the want will become bigger and there will be petitions for making homosexual marriage legal. Once3 Sources of Law, available at https://www.legalbites.in/sourcesoflaw2/ (last visited on 18 September, 2023) homosexual marriage becomes legal the want will become even bigger than there will be petitions for new adoption laws and parental laws. No marriage is without a problem but some problems can never be resolved. The issue of divorce in such homosexual marriage will occur.  All these will lead to a tsunami in the legal system and will demand changes in marriages law, adoption laws, property laws, succession laws and divorce laws at the very ground level.
  • Just after the decriminalisation of homosexual acts, first petition was filed for the legislation of same sex marriage by Vaibhav Jain, an Indian citizen and Parag Vijay Mehta, an overseas citizen of India[3]. They got married in the USA in 207 where same sex marriage is legal. They sought the same relief in India but the Indian consulate had refused to register their union. The centre rejected their petition saying that family issues are far beyond mere recognition and registration of marriage between persons belonging to same gender because Indian family unit is a concept of a husband, a wife and children which necessarily means a biological man as a husband, a biological woman as a wife and the children born out of the union between the two.
  • What is the purpose of this homosexual acts? It is not for evolution of human race or procreating. The sole purpose is to fulfil one’s pleasure. if it is for pleasure only then none of the crimes would be considered a crime as in a judgment of a crime, either of the party is termed as a victim or as a criminal and it has been famously said that “justice for one is injustice for another”[4] therefore if we take the example of sexual crimes, when the judgement comes in favour of the victim then it would be injustice to the criminal because what crime did, he commit? The crime to give into his pleasures? And if keeping in mind only the pleasures of the human body and acting upon it would be a crime then how come homosexuality is a crime? If homosexuality is legalised then prostitution involving consenting adults should also be legalised then sex scandals involving high-profile people like celebrities or cricketers reported by media should also be legalised. They should not be seen as a taboo by society and crime by the law.
  • In the case of Naz Foundation vs. Govt of NCT of Delhi, the court gave the judgement that this criminalisation of homosexual acts with consent between adults is the infringement of Fundamental Rights[5]. But these Fundamental Rights which are so-called “infringed” are made for whom? For humans only. But this act of homosexuality will help in the decline of the human race. So, if humans are not there in the first place, then what is the purpose of these Fundamental Rights? As we all know Fundamental Rights are made for humans, not humans are made for Fundamental Rights.
  • I think that this act would lead to declination of the human race because it started as a trend and we all know that we humans have this characteristic to accept a trend and convert it into a tradition. For instance, a few generations back love marriages were not considered a bit. They were seen as taboo but starting from the 90s era people started accepting it and love marriages were considered a bit[6]. 50% of love marriages used to happen and 50% of arranged marriages were there. then came our generation i.e., the present generation where love marriages are starting to normalise and we see 90% of love marriages and 10% of arranged marriages happening. But we are sure that in the upcoming generation, love marriages would be completely normalised and arranged marriages would be seen as weird and outright. So, what I meant is that a time would come when homosexuals would be considered normal and they would be preferred whereas heterosexuals would be considered as weird and would not be accepted. It might take years and years but it would happen for sure.

BIBLIOGRAPHY

WEBSITES

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[1] Suresh Kumar Koushal & Anr vs Naz Foundation & Ors , available at https://indiankanoon.org/doc/58730926/ (last visited on 18 September 2023)

[2] Navtej Singh Johar vs Union of India Ministry Of Law And Justice, available at https://indiankanoon.org/doc/168671544/ (last visited on 18 September 2023)

[3] Same-sex marriage, available at https://scroll.in/latest/975773/samesexmarriagedelhihcseekscentresresponseontwopetitionssayslawsaregenderneutral (last visited on 218 September 2023)

[4] The Concept of Justice, available at https://link.springer.com/chapter/10.1007%2F9789401577069_2 (last visited on 18

September, 2023)

[5] Naz Foundation vs Government Of Nct Of Delhi And Ors, available at https://indiankanoon.org/doc/100472805/ (last visited on 18 September 2023)

[6] Statistics of Arranged and Love marriage in India, available at https://medium.com/@solutionswebomania/statisticsofarrangedandlovemarriageinindia7e7afde6c13f (last visited on 18 September 2023)

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