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Content

• Introduction
• Legal provisions in India
• History of Important court ruling on the issue of Homosexuality
• Navtej Singh Johar vs Union of India
• Other arguments supporting Homosexuality

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Introduction

The sexual orientation characterized by romantic or sexual desire for, or sexual attraction towards member of the same sex is called Homosexuality (Homophilia).

• The term ‘gay’ is used to refer to homosexual persons of either gender, although it is
  mostly used to refer to males.
• In women, romantic sexual desire for other women is also called ‘lesbianism’.

Legal Provisions in India

• Section 377 of IPC punished voluntary carnal intercourse against the order of nature with any man, women or animal with imprisonment for life or for a term of upto 10 years.
  •  Supreme Court in its 2018 judgment in Navtej Singh Johar vs. Union of India has said that section 377 insofar as it prohibits ‘any consensual sexual relationship’ is
    unconstitutional.

History of important court ruling on the issue of Homosexuality:

• The issue of Section 377 being violative of fundamental rights was first raised by NGO, NAAZ Foundation, and AIDS Bedhbhav Virodha Andolan (ABVA), in the Delhi High Court in 2001. But the petitions were dismissed by the court.
• Eight years, later in 2009, Delhi High Court in Naz Foundation vs. Government of NCT of Delhi (2009) declared that the Section (377), insofar as it criminalizes consensual sexual acts of adults in private, is violative of article 14, 15, 19 and 21 of the Constitution.
  • The court also held that “constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view”.
• However, the Naz Foundation judgment was overturned by Supreme Court in 2013 in Suresh Kumar Koushal vs. Naz Foundation

Supreme Court Judgment in Navtej Singh Johar vs Union of India:

have reversed the Koushal judgment and has de-criminalized homosexuality. The key reasons given be the SC are:
a. Sexual orientation is natural and people have no control over it.

• It is controlled by neurological and biological factors. CJI said that “what nature gives is natural and the natural identity of an individual should be treated to be absolutely
  essential to his being“.
• Research shows that sexual orientation is decided very early, possibly even before birth, and that homosexuality is found in about 10% of the population, a figure that is largely constant across the cultures.
• Justice Chandrachud also added that ‘homosexuality has been documented in almost 15,00 species.

b. Section 377 violates LGBTs’ Right to Equality under article 14 of the constitution and Prohibition of Discrimination under article 15 of the constitution and is thus irrational, arbitrary and incomprehensible.
c. It also violates Right to Freedom by punishing freedom of choice of individuals.
d. Violates Right to Life

• Right to Privacy as part of Right to Life applies fully to LGBT community.
• Punishment under Section 377 made the LGBT a closeted community, destroyed the identity of members and breached their dignity – All part of Right to Life.
  • Self-determination lies at the core of the concept of identity.

e. Section 377 leads to harassment of LGBT community

• Section 377 has become a weapon in the hands of the police and majority community
  to harass those who have alternative sex orientation. Therefore it assumes the character of unreasonableness.
•  After the 2013 judgment, a large number of cases have come up where gays were
  blackmailed by acquaintance and the police is in connivance with each other.

f. Benefit of presumption of constitutionality of a statute can’t be extended to a pre
constitutional law like 377 that was not enacted by popular legislature.
g. The court has rules that consensual sex between adults is neither harmful nor contagious in society.
h. Constitutional morality is more important than Social Morality (majoritarian consensus): Social morality or what the majority of society thinks cannot be used to violate the right of even one single individual.

• CJI Mishra had made it clear by saying “We don’t settle constitutional issues by
  referendum. We don’t follow majoritarian morality, but follow constitutional morality”.
• The judges have unanimously said that freedom of choice can’t be subjected to
  majoritarian perceptions. The constitution is not just for majority, the fundamental rights are guaranteed to “any person” and “any citizen” and the sustenance of these rights doesn’t require majoritarian sanction.

i)  Judiciary plays an important role in making constitution a “living document” through dynamic and purposive interpretations.

• The constitution must transform society for better – at the heart of transformative
  constitutionalism lies a pledge to change the Indian society so as to embrace the ideals of justice, liberty, equality and fraternity.

The Court also added that society owes an apology to LGBTQ community.

Other arguments Supporting Homosexuality / decriminalizing homosexuality.

• Homosexuality is not against India’s tradition and culture.
  • Our mythology refers to the existence of homosexuality.
    • There are reference to homosexuality in Valimiki’s Ramayan.
    • There are many instances of men turning into women and so on in Mahabharata too.(e.g. Shikhandi)
    • Erotic paintings and sculptures in ancient temples depict homosexual impulses of at least certain sections of Indian society.
• Forced Heterosexuality Affects family life
  • Homosexuals when forced to live life of a heterosexual have to get married and live with someone to whom they are not attracted. This ruins the life of not only the homosexual but the person with whom s/he got married.
• Even Britishers have changed their law
  • IPC which was drafted by Britishers criminalize homosexuality.
  • The English law was reformed in Britain by sexual offences Act, 1967, which decriminalized homosexuality and acts of sodomy between consenting adults.
• Prevented raising awareness over the issue
  • Homosexuality is already considered a social taboo and it being illegal further made it difficult to spread awareness about it and thus prevent harassment of homosexual people.
• International Image of a liberal, inclusive, democratic country
  • Decriminalization of homosexuality has also enhanced India’s international image of being a country of diversity, of inclusion and or equal protection for all.

Way Forward: Supreme court judgement has merely decriminalized homosexuality but has not altered civil laws on it. Further court judgments or laws cannot remove social prejudice on their own. Discrimination still persists at workplace, in renting houses, and in the form of stigmatization which is more intense in rural areas. Therefore, we need to work towards:

• Bringing change in social attitude: A change in social attitude and mentality needs to take place. This would require a lot of proactive efforts from government, civil society organizations, educational institutions etc. in the form of Information, Education and Communication Programs.
  • Homosexuals at leadership roles need to come up openly and confront the discriminatory attitude against them. This will help in changing the social perception.
• Ensuring Administrative Protection
  • Government needs to ensure that homosexuals who are making their identity public are not harassed or discriminated in any way.
• Legal Reforms: Civil laws have to be brought in consonance with the SC verdict. The amendments need to provide for
  • Legalizing same sex marriage
  • Allowing same sex couples to adopt a child
  • Ban Conversion Therapy
• Judiciary also needs to proactively protect fundamental rights of homosexuals, at least, till the time when social attitude and legal protections are enhanced.
  • An example would be Kerala High Court’s June 2022 judgment where it sanctioned a lesbian couple to live together after they were coercively separated by their parents.

Conclusion
The Navtej Singh Johar judgment widens the ambit of individual autonomy and decisional
privacy. But the verdict is only the first step towards ensuring right to life, liberty and dignity of LGBT community. We still need to go a long way towards changing social attitude and ending all forms of discriminatory laws against the LGBT community.