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In 1861 under section 377 of the Indian Penal Code the British Raj criminalised for a person to have “carnal intercouse againt the order of nature”. Hence, homosexuality was declared as a criminal offence. Section 377 of the Indian Penal Code stated 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 ten years, and shall also be liable to fine.”
LGBTQ rights have gained more visibility only recently. Homosexuality was decriminalized in India in 2018 by the judgement in Navtej Singh Johar v Union of India by the Supreme Court. India does not currently recognize same-sex marriage, but some States have recognized same-sex couples who live together.
Despite political movements in favour of LGBTQ rights there is a considerable amount of homophobia among the Indian population. In National Legal Service Authority v Union of India, Supreme Court upheld the transgender persons right to decide their self identified gender. Transgender people in India are allowed to change their legal gender after undergoing the sex reassignment surgery under the Trangender Persons (Protection) Act 2019.
Conversion Therapy can be described as a pseudoscientific practice of trying to change an individual’s sexual orientation from homosexual, bisexual, or heterosexual using psychological, physical, and spiritual intervention. Such therapy can attract civil liability to the persons conducting it as it comes under medical negligence. They can also attract criminal liability in certain situations. Section 319 of the Indian Penal Code deals with the ‘Hurt.’ Decision in Jashanmal Jhamatmal v Brahmanand Sarupananda stated that infirmity of mind comes under the ambit of hurt. Hence, Conversion therapy also falls under the scope.
Criminal liability for medical negligence is provided under Section 304A of the IPC. The act must be of high degree to establish criminal negligence or recklessness, which can be considered as gross. The ambiguity and broad scope of terms ‘high degree’ and ‘gross,’ helps medical practitioners get away without penal consequences.
Timeline of Section 377
The legal battle for decriminalising section 377 of the IPC began a decade ago. In Naz Foundation v Government of NCT Delhi, the writ petition was filed by an NGO, and it argued that section 377 of the Indian Penal Code was unconstitutional. The petitioners argued that section 377 of IPC has resulted in continued discrimination and harassment of the LGBTQ community. They also argued that the section violated the fundamental rights guaranteed by the Constitution under Articles 14, 15, 19, and 21 of the Indian Constitution.
The Ministry of Home Affairs argued in favour of retention of section 377. It stated that Indian society does not morally condone such behaviour, and the law should reflect societal values such as these. The Additional Solicitor General submitted that the right to privacy is not absolute and can be restricted where there is a compelling state of interest.
While giving the judgement, the Court considered whether any laws that interfere with personal liberty as set in Maneka Gandhi v Union of India were violated. The Court made references to United State’s jurisprudence on the right to privacy. With references to the decisions in Roe v Wade and Planned Parenthood of Southeastern Pa v Casey. The Court reiterated the test set by Article 14 of the Constitution that any distinction or classification based on intelligible differentia has a rational relation to the objective sought and is not unjust or unfair. The Court stated that even though the section appears neutral, it targets a particular community; this led the Court to conclude that section 377 discriminated against a particular community in violation of Article 14 of the Constitution. The Court found that section 377 violated Articles 21, 14, and 15 of the Constitution and decriminalised homosexuality.
Also read: LAKSHWADEEP CRISIS
The Supreme Court overturned the decision in Naz Foundation v Government of NCT Delhi in Suresh Kumar Koushal and Another v Naz Foundation. The petitioners argued that section 377 does not in the face of it targets any particular community, and hence it is not violative of Articles 14, 15, and 21 of the Constitution. The Court accepted the arguments and stated that carnal intercourse was unnatural. Justice Sanghvi also stated that if section 377 violated Part III of the Constitution, the Parliament would have noticed and repealed the section. The decision declared the section to be constitutionally valid.
The Supreme Court revisited the judgement of Suresh Kumar Koushal v Naz Foundation. In 2018, a judgement in Navtej Singh Johar v Union of India decriminalised section 377 of the Indian Penal Code. In its judgement, the Court found that criminalising sexual acts between consenting adults is against the right to equality guaranteed by the Constitution of India. It held that the ‘choice of whom to partner, ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation’. The judgement entitled equal citizenship and protection under the law for the LGBTQ community without any discrimination.
Recognition of same sex relationships
Even though section 377 of the Indian Penal Code was declared unconstitutional, there are no statutes that recognise same-sex relationships. There is no legislation relating to legalising marriage between same-sex couples. However, different Courts have given judgement allowing the same-sex couples to cohabit.
In its judgement the Uttarakhand High Court has stated that a live-in relationship between same sex couples is not unlawful. ‘It is a fundamental right guaranteed to a person under Article 21 of the Constitution of India, which is wide enough to protect an inherent right to self-determination with regards to one’s identity and freedom of choice with regards to the sexual orientation of choice of the partner.’
In Paramjith Kaur v State of Punjab, the Punjab High Court held that same-sex couples are entitled to live-in relationships and protect their lives and liberty under Article 21 of the Indian Constitution. In June 2020, a couple filed a petition to legalise their relation in the Gujarat High Court and requested their protection.The couple had entered into an agreement similar to a marital agreement that dealt with property and other matters. The Court allowed the petition and also provided protection for the couple.
There are particular legal challenges regarding same-sex marriage. The present-day statutes do not lay down provisions for same-sex marriage. In Arunkumar v Inspector General of Registration, the High Court of Madras held that a trans woman could be considered as a bride under the Hindu Marriage Act. The Court observed that the ‘expression ‘bride’ occurring under section 5 of the Hindu Marriage Act could not have a static or immutable meaning.’
There are many other cases in different High Courts which dealt with same-sex marriage.
In India, most of the Acts relating to the solemnization of marriage deal with religion. The Special Marriage Act is an exception to this position. It goes above the boundaries of religion or caste. It does not account for same-sex marriage. The Special Marriage Act must be extended to include same-sex marriage, thus legalising same-sex marriage. A decision of Madras High Court has recognised a transgender woman as a bride under the Hindu Marriage Act. The inclusion of other members of the community is an essential aspect of recognising the rights of the LGBTQ community. The current Special Marriage Act only deals with a heterosexual relationship. In order to include homosexual couple, section 4(c) of the Act may be amended, or a particular provision can be added for same-sex marriage. Decriminalising section 377 was a leap in ensuring equal rights to LGBTQ community, but more measures have to be taken care of, for the inclusion of the members of the community in different spheres of life and providing equal opportunity.
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Hindustan Times, India, available at : https://www.hindustantimes.com/india-news/same-sex-couples-can-live-together-uttarakhand-hc/story-WDjvNH3JzJvaGDtpfzZOxL.html (Last Modified June 20 2020)
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Author: Anamika M J, NUALS, Kochi
Editor: Kanishka Vaish, Senior Editor, LexLife India.