Decriminalization of homosexuality

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The author of this blog is Aniket Dadhwal, 3rd-year BALLB student of  Himcapes College of law, Badhera, Una, Himachal Pradesh.
   
   
6 Sept. 2018 was marked with the historic judgment by the Supreme Court which leads to the development of the concept of transformative constitutionalism by declaring Sec 377 as unconstitutional. Which came to force more than a century and a half ago when India was under the British regime which was made under British buggery act of 1533. The buggery act was passed by the parliament of England in 1533 when Henry viii was the king. Buggery refers to anal intercourse and converts bestiality. The buggery act of 1533 was the first law in England that brought the offense of Sodomy from the court of the church to the state. It defines buggery as an act against the will of God.   

Sec 377 of IPC defines unnatural offenses as :
whoever voluntarily has carnal intercourse against the order of nature with any man, woman, the 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 be liable to fine.[1]
This section elucidates any person having intercourse against nature will be punished as no such recognition is given to these LGBT communities before this judgment by Supreme Court and it was considered as immoral, indecent, against nature whereas  some considered it as against Hindutva.  
  
Initiation of the movement :
Initially the movement was started by AIDS Bhedbhav Virodhi Andolan in 1991 to fight against the discrimination against those affected by HIV or AIDS. They mainly fight against discrimination, violence, social stigma, mental torture, etc against LGBT communities or those affected by HIV or AIDS.[2]
In 1994 may, a writ petition was filed by ABVP in Delhi High Court against the inspector General of the Tihar jail and others, demanding free condoms be provided and Sec 377 be declared unconstitutional but this plea was dismissed in 2001.[3]
In 2001, this movement was initiated By NAZ foundation by filing a PIL in High Court. Eventually on 2 July 2009, Delhi High Court came up with the historic judgment to legalize homosexuality.[4] A 105 pages judgment was given by a bench of Chief Justice Ajit Prakash, Muralidhar and they clarified that if not amended then Sec 377 will violates fundamental rights.4 It was contended that as this 150-year-old section violates such articles like ART14 (equality), ART15 (discrimination on sex ), ART 21 (freedom to live with human dignity).
Not satisfied with the verdict of Delhi  High The court, the Supreme Court reversed the verdict on 27 March 2012 by reinserting the section.[5]   

Suresh Kumar Kaushal v. Naz Foundation[6]
In this case 2 judges of Supreme Court namely G.S Singhvi and S.J Mukhopadhyay reinserted the Sec 377 by changing Delhi High Court judgment of 2009.

Political supporters of the judgment:
The judgment given in Suresh Kaushal case received support as well as opposition from political leaders like
●     Rajnath Singh's member of BJP showed his discontent in the 2013 judgment.
●     Yogi Adityanath former MP and current CM of Uttar Pradesh stated that they will take all measures to oppose any move to decriminalized homosexuality.
●     Congress President Sonia Gandhi and  Vice President Rahul Gandhi supported the concept of homosexuality. On 18 Dec. 2015 Shashi Tharoor MP of INC also supported the view of LGBT rights by introducing a private member bill to replace and decriminalized Section 377. However, the bill was rejected and reintroduced in 2016 but again got rejected.[7]
    
 NATIONAL  LEGAL SERVICE AUTHORITY V.  UNION OF INDIA[8]
In this case, the Supreme Court gives this landmark judgment by Declaring Transgender to be the Third gender. This was to be the first-time Transgender was recognized as a The THIRD gender and was affirmed that fundament rights under the Constitution will be equally applicable to all these communities just like other, as well as they will be granted reservation in admission to educational institutions and jobs for the reason of being socially and economically backward classes. This judgment was the first judgment to be recognized for the transgender.

OPPOSITION OF SURESH KAUSHAL JUDGEMENT BY POLITICAL LEADERS[9]
●     Arun Jaitley was differently opinionated then Rajnath Singh pointed out that these people must be jailed.
●     Samajwadi Party by opposing the High Court 2013 judgment by calling it unethical.
●     Dr. Subramanian Swami declared homosexuality against Hindutva and is not a normal thing.
●     Baba ram dev pointed out that homosexuality can be cured of yoga.

K.S.PUTTASWAMY(RETD.)AND ANR  V.   UNION OF INDIA AND ORS. [10]
In this case, the Supreme Court hears a petition against India Programmed Aadhar. The Supreme Court declared the right to privacy is protected as a Fundamental Constitutional Right and also stated that sexual orientation is also an essential attribute of privacy.
The judgment gives a boost to decriminalize Section 377 as sexual orientation is an important component of privacy and no one shall be discriminated on his or her sexual orientation as this violates dignity and worth of the individual. The court focused on the protection of LGBT sexual orientation and condemned discrimination as the court stated that these communities cannot be ignored as they constitute a less portion of the population but relying on the concept of equality every person needs to protected by the law and equal protection can be given by the law which  is the base element of constitution. 
  NAVTEJ SINGH JOHAR  V. UNION OF INDIA[11]
The Supreme Court on July 2018 gave a landmark judgment by Declaring Section 377 as  unconstitutional, comprising of the bench of Chief Justice of India Dipak Misra, Justice Dhananjay Y Chandrachud, Justice Ajay Mawkrao Khanwilkar, Justice Indu Malhotra and R. F.. Nariman. [12]
●     Different views were expressed like Justice Deepak Mishra describe it as "irrational, indefensible and manifestly arbitrary" marking triumphant and to a lengthy struggle for justice.
●     Justice Nariman says to Union of India to give "Wide publicity to the judgment and to conduct awareness among people and officials".
●     Justice Chandrachud put it "the choice of partner, the desire for personal intimacy and yearning to find love and fulfillment in human relationships have universal appeal and the state has no business to intrude into it".
●     Justice Indu Malhotra was quoted by history owes an apology to the member of this community and their family for the delay in providing redress for the ignored and ostracized that they suffer through century".
●     Justice Dipak Mishra also pointed out that "The purpose of having a constitution is to transform society to embrace there in the ideas of justice, liberty, equality and fraternity".
The landmark judgment, however, gave rights to all those LGBT communities who were deprived of these for centuries and was ostracized in the context of social morality. These members have battled for acceptance by society and to eradicate prejudice is still on the ground over  2 decades. To deny LGBT individuals the right to sexual orientation is to deprive them of their entitlement to full citizenship. They were mainly kept as a marginalized society or separate communities but even after declaring it unconstitutional, Section 377 remains in force relating to sex with minor, nonconsensual act and bestiality. This judgment gave boom to these communities to represent them.
The Justice Mishra pinned out "that the purpose of having a constitution is to transform society" was adopted by the Supreme Court by giving this convict that our constitution can be amended here the question of the welfare of people arises.[13]

Conclusion :
However number of transformation has been in the constitution or laws to remove social the stigma attached to some laws like that of adultery(section 497 IPC) which protects the women in the context of innocence. All the judgment of Supreme Court related to Section 497 IPC, Triple Talak under Muslim law, Section 397 IPC remove all the social stigma by declaring them unconstitutional and decriminalize.
But they still can't get married or adopt a child together, leaving apart having a right to a child legal guardian but still they face unacceptance even after the verdict of the Supreme Court. The remaining right is still unaddressed and remains a sturdy topic for conservative and politically centered nations like India. This judgment not only decriminalizes Section 377 but also gave a blow to the conformist mindset of society. Through this judgment, the court initiated the process to uproot the social, cultural, legal preconceptions.
Now, it's time to take the fight forward for remaining rights.

[1] SURYA NARAYAN MISRA, INDIAN PENAL CODE, 787 (2017).
[3] Maria Thomas, the struggle against section 377 began over 2 decades, QUAZTZ INDIA(Sep.6,2018,10:00 AM), https://qz.com/india/1379620/section-377-atimeline-of-indians-battle-for-gay-rights/.
[4] Naz foundation v govt. Of NCT of Delhi, (2009)160 Delhi law times 277(India).
[5] Supra note, 2
[6] Civil appeal no. 10972 of 2013.
[7] Supra note 2.
[8]AIR.2014 S.C.1863(India).
[9] Kunwar singh, "disease dangerous curable :what key public figure in india think of homosexuality, QUAZTZ INDIA(Sep.2,2018,8:00 PM), https://qz.com/india/1380027/section377-what-ramdev-adityanath-zakir-naik-think-of-gay/.
[10] 24,august,2017.
[11] Petition criminal no. 76 of 2006.
[12] Supra note, 2.
[13] Ajita Banerjee, transformative constitutionalism :India Supreme Court uphold constitutional morality by reading down section 377,OXFORD HUMAN RIGHTS HUB(sep.28,2018,11:00 AM), https://ohrh.law.ox.ac.uk/transformative-constitutionalism-india-supreme-court-uphold-constitutional-morality-by-reading-down-section-377/.

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