Case involving LGBTQ Community

The Author is Yukti Kohli of Jagran Lakecity University.

The LGBTQ group have suffered over 150 years under the term sexual minorities and outcast. They were considered as abnormally ill, mentally challenged and danger to national security. But the Supreme Court judgement on 6 September 2019 changes the whole scenario. 

This judgement was the first step to fight against homophobia. This judgement was delivered by five judge bench and has restored all the hopes in the system and have reconfirmed that we the citizens of India still stand together and propagate the message of social, economical and political Justice, liberty, equality and fraternity for each and every individual in India as has been stated in the preamble of the Indian constitution.

Until the judgement was given criminalisation, of section 377 of IPC was snatching the rights of individuals to live with dignity under the veil of social morality.

 History of section 377

Section 377 of IPC came into force when we were under the British Regime. This law was shaped as per Britain’s Buggery Act of 1533, that criminalises a unnatural offence as a sexual activities against the order of nature. Section 377 states that “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 10 years and shall be liable to fine”.

In 1967 the British parliament came with the new act that is the Sexual Offences Act which decriminalised gay sex between consenting adults. Section 377 was referred as a part of toxic British legacy but the worst part is that even after 71 years of independence and being one of the world’s largest constitutional democracies India has failed to get rid of such unconstitutional or not ethical laws like section 377 which were imposed on us when we were in British rule. Under such situations the effectiveness of Indian democracy and legislation is questioned.

The case and a judgement

 In 2001, an NGO called Naaz foundation and AIDS approached Delhi High Court demanding that section 377 must be made illegal and homosexuality be decriminalised by striking down Section 377 of IPC, as it is a law which was made under British era.

 In 2004 High Court dismisses the petition to decriminalise section 377 which made the activist to move to the Supreme Court and to ask the judge to re consider the petition. As a consequence of what the home minister, health minister files contrary affidavits and there by submits that gay sex is immoral and argues against decriminalisation of section 377. Then in 2008 the High Court call for scientific evidence against the immoral arguments and it was decided that Parliament is the one who should decide on such matters. on 2 July 2009 the Delhi High Court decriminalise homosexuality. But the religious group challenged the verdict of High Court and asked to change their verdict and to criminalise section 377 of IPC. Thereafter the Supreme Court set aside the judgement given by High Court and leaves the matter for Parliament to decide.

Lok Sabha voters voted against the introduction of Private Members Bill by Congress to decriminalise homosexuality. In 2016 at three judges Supreme Court bench was formed to review the judgement. In 2018 Supreme Court bench was formed which was headed by CJI Deepak Mishra. In 2018 the Supreme Court bench was of the opinion to take a call on the 150 years old ban on gay sex. On 6 September 2018 the Supreme Court gave the verdict where it decriminalises homosexuality.

Supreme Court was of the opinion that section 377 upheld the right to privacy as a fundamental right under the Constitution of India. The Supreme Court also called for equality and contaminated discrimination stating that the protection of sexual orientation lies at the core of the fundamental rights.

The LGBT community and activist argued how section 377 of IPC violates different articles of Indian Constitution. article 14 which guarantees equality before right law of all individuals, article 15 which ensures that no person shall be discriminated against on the basis of caste, gender, greed and article 21 which ensures the right to life and liberty to all citizens of the country. If section 377 of IPC is not decriminalised then all the above stated articles are violated. All form of consensual sex between adults is legal and consent must not be obtained by coresion.

The Supreme Court also said that the veil of social morality cannot be used to violate fundamental rights of even a single individual for the foundation of constitutional morality rest upon the diversity that pervades the society.

A lot is still pending when it comes to the rights of LGBT community. The LGBT community is now entitled to a full range of constitutional rights and liberties which are protected by the Constitution but still there are some rights which are there to be in focus.

Justice Chandrachud in the judgement said that this community enjoys the benefit of equal citizenship without any discrimination and have protection of law but still some rights are not available to this community such as getting married or adoption of a child together or to be a legal guardianship. LGBT community still faces family acceptance. The Supreme Court as well as the government was of the opinion that the judgement must be given only on the decriminalisation or criminalisation of the law and the debate on the rights of LGBT ‍community is still and addressed.  

While delivering judgement Indu Malhtora says that history owes an apology to the members of this community and your family for the delay in providing the justice and was of the opinion that this community has suffered through the centuries. This community has lived their life with full of fear of reprisal and persecution. This is because the majority has failed to recognise that homosexuality is a complete natural condition and part of a range of human sexuality. But the problem is much deeper by such minor amendments it will make less changes. The LGBT community has battle for over two decades just to get recognised as equals in the society by the law and by the members of the society. The battle for their rights is still on. By this recent judgement the Indian law bodies have initiated the process to uproot the social culture and legal recourse actions from the mind of people. Now it’s the time to fight for the remaining rights including anti discriminatory policies at work place and to be treated as equals.

 Justice Nariman said while delivering the judgement that for making this judgement a reality and not mere a facade people should be encouraged to come out of the shadows and embarrassed their individuality. He thereby asked the government to give this judgement wide publicity, create awareness training programs for government official and police officers in the light of observation contained in the judgement.

Chief Justice of India Deepak Mishra said that constitution is to transform society. And the authorisation to transform the society with the Constitution is a task given to the government, the judiciary and the citizens. According to chief Justice Deepak Mishra it is the social and moral responsibility to fight against social culture vile that impedes the growth of a nation. This judgement not only decriminalise the section 377 of IPC but also give a blow to the mindset of the society. The bench tried to end prejudices associated with gay, lesbian, transgender and bisexual people in India. The bench also try to compensate for the delay by providing a permanent relief to homosexuals that cannot be easily challenge or revoked and provided them complete equality.