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DECRIMINALIZATION OF HOMOSEXUALITY IN INDIA

Author: Manaswini. Medepudi, IV year of B.B.A.,LL.B.(Hons.) from ICFAI Law School, Hyderabad, India.


INTRODUCTION

Homosexuality[i] is defined as the interactions involving people of the same sex. Across numerous families and communities, homosexuality has been historically regarded and widely ridiculed as deviant or abnormal based on philosophical, religious, and theological beliefs about what activities conform to reality and natural law.


LGBTQ - Lesbian, homosexual, bisexual, and transgender persons encounter identical and distinctive issues in human rights. LGBT and intersex (those born with abnormal anatomical traits) experience some of the same discriminations. Additionally, they experience institutional violence inside healthcare institutions, which has a long-lasting negative impact on their physical and mental well-being. These people encounter both common and unique obstacles in the context of human rights.


PROMINENT SOURCES – DEPICTION

Khajuraho Temple[ii], a notable temple in Madhya Pradesh, was adorned in antiquity featuring various statues representing sexuality. This had been constructed in the 10th Century by Rajput Chandela Dynasty kings. There is hardly any such temple in India that depicts humanity's emotions. Several sculptures show homosexual acts, demonstrating that homosexuality existed in the ancient epoch.


Manusmriti, a main body of legislation followed during that era by an overwhelming percentage of people, is remarkable. It urges that everyone who engages in homosexual behavior, either men or women,be encouraged to be punished. Although the script did not promote homosexuality at the time, it still did show that homosexuality existed.


The 1861 colonial-era norms and law regarding the homosexual element have finally been transformed by the 5 Judge bench, which has considered the modern societal culture and standards of the 21st Century. LGBTQ stands for Lesbian, gay, bisexual, transgender, or queer.


CHRONICLE OF HOMOSEXUALITY

The judicial request to decriminalize homosexuality was made in 1994 by the AIDS Bhedbhav Virodhi Andolan (ABVA)[iii]. However, it was denied by the Delhi High Court. The Naz Foundation then presented a similar legal petition to the Delhi High Court in 2001, which was again dismissed.


On July 2, 2009, the same Delhi High Court struck down parts of the clause as unlawful eight years later. Justice A.P. Shah handed down the landmark decision, the Delhi High Court's Chief Justice, and Justice S. Muralidhar at the time. Section 377 of the IPC was upheld unconstitutional by the Delhi High Court in NAZ Foundation v. N.C.T. of Delhi (2009)[iv].


The decision was also questioned in Suresh Kumar Kaushal v. NAZ Foundation (2014)[v][vi]before the Indian Supreme Court (SC), where it had reversed by a two-judge bench. In Navtej Singh Johar v. UOI[vii], a five-judge SC panel heard a new challenge to the SC ruling in 2016. In this case, a dancer and member of the LGBTQ community, Navtej Singh Johar,filed a petition under Article 32 of the Indian Constitution before the Supreme Court. This judgment symbolizes a revolutionary age of individual freedom and represents a significant triumph for the lesbian, homosexual, bisexual, and transgender movement, which has long determinedly campaigned for the legalization of gay sex.


LEGAL PROVISIONS AND DECRIMINALIZATION

Section 377 of the Indian Penal Code[viii], criminalized homosexuality and was established in 1861 under British regulation over India. Referred to as "unnatural offenses," and states that anybody who willingly engages in sexual contact with a man, woman, or animal in violation of nature's order shall be punished with life in jail.


Therefore, the Supreme Court of India decriminalized Section 377 of the IPC on September 6, 2018, allowing homosexual intercourse between consenting adults in a personal location. According to the Supreme Court, consenting adults to homosexual intercourse does not constitute an offense because sexual preference is innate, and individuals have no control over it.


EXPLANATION

The Court emphasized that Section 377 indiscriminately penalized those who indulge in same-sex relationships. To support this, the Court pointed out that Section 377 designates and punishes those who engage in carnal intercourse beyond the order of nature in a manner that protects women and children. This goal, however, has no apparent connection to the categorization because unnatural offenses are also separately penalized under Section 375 and the POCSO Act. As a result, the Court ruled that discriminatory treatment of LGBT people breaches Article 14.


Section 292 of the Indian Penal Code outlines obscenity, and today it empowers more than adequate space for the acceptance of homosexuality to fall within its purview.


The Indian Penal Code's Section 294, which punishes "obscene behavior in public," also pertains to and is used to prosecute homosexual men. Although the Protection of Children from Sexual Offences Act 2012 in England lessened the punishment for homosexual behavior with consensual sex, consent is primarily irrelevant in India for forming an offense as specified under this clause.


PRESENT SCENARIO AND SUGGESTIONS

Homosexuality is immutable and inborn in nature. The acts of violence and discrimination against homosexuals are creating a negative impact, although there has been a green flag from the judiciary. The state has to plan to improvise and implement the laws to forbid discrimination against a homosexual based on sexual orientation and gender identity.


Thus be awareness programs to educate people about LGBTQI rights and sexual orientation and not limit their liberty of being as accessible as others. The Supreme Court of India has legalized consenting homosexual con regarding gay marriage. As everyone has the freedom to select their life partner without any discrimination, not even based on gender. The law must adapt as society does. The law needs to adapt to the culture. The legislation does not specify the legal status of same-sex unions in India.


By applying penalties under any legislative decree, it hasn't discriminated against same-sex weddings. The moment has come for legislationnot to discriminate against homosexuals.


The critical legal responsibilities of States in safeguarding the human dignity of LGBT individuals should comprise the mentioned:

  • Defend them against abuse that is homophobic and transphobic.

  • Stop practicing violence and other inhumane or brutal methods

  • Abrogate the laws that make same-sex relationships and transgender individuals illegal

  • Against grounds of discrimination on sexual orientation born trait status

  • Protect the rights to free speech, association, and assembling in peace for LGBTI persons.


These would make the world a better and more pleasant place to live in.

[i]https://www.pewresearch.org/global/2020/06/25/global-divide-on-homosexuality-persists/ [ii]Ray, S. (2018, September 11). Indian culture does recognize homosexuality, let us count the ways. TheQuint. Retrieved January 21, 2023, from https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377 [iii]AIDS Bhedbhav Virodhi Andolan, “Less Than Gay: A Citizens’ Report on the status of Homosexuality in India” (1991) [iv]Naz Foundation v. Government of N.C.T Delhi, (2009) 160 DLT 277 [v]Suresh Kumar Kaushal vs. Naz Foundation, CIVIL APPEAL NO.10972 OF 2013 (Arising out of SLP (C) No.15436 of 2009) [vi]Suresh Kumar Kaushal vs. Naz Foundation, CIVIL APPEAL NO.10972 OF 2013 (Arising out of SLP (C) No.15436 of 2009) [vii]AIR 2018 SC 4321 [viii]https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=434#:~:text=Whoever%20voluntarily%20has%20carnal%20intercourse,also%20be%20liable%20to%20fine.

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