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INTRODUCTION
LGBTQ stands for lesbian, gay, bisexual, and transgender. It was used to replace the term gay in reference to the LGBT community beginning in the mid to late 1980s. The activists believed that the term gay community did not perfectly represent all those to whom it referred. Later the initials were adopted into the public as a complete umbrella term for use when naming topics pertaining to sexuality and gender identity. The letter Q for those who identify as queer or are questioning their sexual identity.
Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the British rule of India. The section criminalises sexual activities "against the order of nature." The act defines says 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 ten years, and shall also be liable to fine. The ambit of Section 377 extends to any sexual patnership involving penile insertion. Thus, even consensual heterosexual acts such as anal penetration may be punishable under this law.
In 1991, several LGBTQ members joined hands to initiate a movement to repeal Section 377. The movement was spearheaded by AIDS Bhedbhav Virodhi Andolan which published a book titled, ‘Less than Gay: A Citizen's Report’, listed out the problems with section 377 and demanded for its repeal. As the case prolonged over several years, the next level of revive was done made by NGO which filed PIL in in the Delhi High Court in 2001. The case sought legalisation of homosexual intercourse between consenting adults. Once again the case began to drag, but Delhi High Court gave a historic judgement on July 2, 2009, legalizing consensual homosexual activities between adults. But once again there was roadblock, when Supreme Court struck down the judgement as a result Section 377 was reinstated with full force. The Supreme Court was further very specific that this was not the end of the debate and it asked parliament to take a decision on whether Section 377 should be repealed or not. In response, the Union Government filed a review petition on 21 December 2013 stating that the judgement was violating rights under article 14, 15 and 21 of the Constitution.
Issues Involved-
Fundamental Rights
Sexual orientation and its relationship to the Fundamental Rights of the individuals has been at the heart of the debate.
SC in its judgement specifically said that the Right to Privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14 (Equality before Law), Article 15 (Prohibition of discrimination on
the basis of race, religion, caste, sex, place of birth), Article 21 (Protection of life and liberty) and Article 19 (Freedom of expression) of the Constitution.
The Supreme Court, while decriminalising consensual sex between homosexuals, observed that members of the LGBTQ community possessed the same fundamental rights as others.
Health Issues
Criminalisation of homosexuality leads to discrimination and results in LGBTQ people getting poor or inadequate access to services within the health system.
It also creates barriers to both the availability and the ability to access HIV prevention, testing and treatment services.
Public health evidence also indicates a clear relationship of a lack of social acceptance and legal rights with substance abuse, violence, isolation, and mental illness.
Law and morality
Those against legalising gay sex argue that it is against the moral values of the society. However, activists arguing for it say what is forbidden in religion need not be prohibited in law.
Landmark Judgements related to issues
Naz Foundation vs. Govt. of NCT of Delhi (2009)
- Delhi High Court struck off section 377, legalising consensual homosexual activities between adults.
Suresh Kumar Koushal Case (2013)
- SC overturned the previous judgment by Delhi High Court (2009) that decriminalised homosexual acts and criminalised homosexuality once again.
- SC argued that in 150 years, less than 200 persons had been prosecuted under Section 377.
- Therefore, "plight of sexual minorities" could not be used as argument for deciding constitutionality of law.
- Further, SC ruled that it was for the legislature to look into desirability of deleting section 377 of IPC.
Justice K.S. Puttaswamy vs. Union of India (2017)
- SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.
alternative sexual orientation. By failing to recognise the identity of this group, it negates both their identity and importance.
Also, by denying their identity, it dismisses the existence of the discrimination and violation of human rights faced by this group of people. The judgment also effectively criminalises all non-procreative sexual activity, even when it is consensual and between adults. Essentially, the difference between development in medical discourse and legal discourse lies, here, on the bedrock of the acknowledgement of the rights of both the minority and the individual. This is where I think the judgement falters on the criteria of both reasonableness and inclusiveness.
The Court also takes the position that it does not have the mandate to repeal Section 377 and that this falls within the scope of the legislature rather than the judiciary. While it is for constitutional or legal experts to opine on this matter, in my opinion, if we accept the primary premise that there are alternative sexual orientations, it seems clear that Section 377 represents an infringement of rights in a myriad ways. In the face of such infringement, the "reading down" by the Delhi High Court seems entirely appropriate to me. The Supreme Court also does not suggest that the legislature should change the law, but that if the law has to be changed, it must be changed by the legislature.
It is my opinion that Section 377 criminalises a facet of human behaviour that is integral to the personal and sexual identity of some people. This facet can in no way be seen as deviance or psychopathology. It seems clear to me that the latest judgment needs to and will be challenged, whether in judicial review or on the floor of Parliament, and it also seems clear that this challenge will be driven by societal pressure. Based on the indications so far, it appears that the judgment is being viewed as both regressive and unmindful of the rights of a minority. It is my belief that for the change to be facilitated science, society and the law- making process need to engage with one another and that if any of these ignores the others, it will be harmful to all.
Conclusion
The Supreme Court unanimously ruled that Gay sex among consenting adults is not a criminal offence. The bench maintained that it is a part of a 158-year-old colonial law that criminalised it, violated the constitutional right to equality and dignity. It unanimously held that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community possess the same constitutional rights as other citizens of the country. It termed sexual orientation as a "biological phenomenon" and "natural" and held that any discrimination on this ground was violative of the fundamental rights. It ruled that it is declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and
devoid of any duress or coercion. The bench also said that homosexuality was not a mental disorder, but a completely natural condition. Impact of Decriminalising Homosexuality
■ Sexual minorities in India are one step closer to living with dignity. ■ LGBTQ Community will be able to come out in the open with their sexual preferences. ■ Discrimination faced by them in accessing health and their harassment by Police will cease. ■ Decriminalisation has also been associated with more self-acceptance as well as psychological and emotional security among LGBTQ Community. ■ This judgement will spur LGBTQ Community to demand more progressive laws like Gay marriage laws, right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination among others. ■ The judgment has opened up grey areas, and guidelines will be needed to deal with cases where, say, a gay individual withdraws “consent” and lodges a complaint against the partner. India’s laws on sexual assault do not recognise men as victims of rape.
Way forward
■ Though the judgement goes a long way in removing the stigma attached with the LGTBQ community, there is need for a multi pronged approach to deal with issue of prejudice and discrimination prevalent in society against them. ■ The LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the onus to change on state and society and not the individual. ■ Government bodies, especially related to Health, and Law and Order need to be sensitised and made aware about the changed position of law to ensure that the LGBTQ community is not denied public services or harassed for their sexual orientation.
