Decriminalisation of Homosexuality

Reading time : 12 minutes

Introduction:

Section 377 of Indian Penal Code was introduced in the code during British period in India.  This section made sexual activities against the order of nature illegal. Section 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India. But now, due to change in the society and due to social development, the Supreme Court of India in Navtej Singh Johar v. Union of India[1] on 6 September 2018 held Section 377 to be unconstitutional to the extent relates to homosexual sex between consenting adults.  But remain in force to the extent relates to sex with minors, non consensual sexual acts, and bestiality.[2] Homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and liking or affection develops on consent of two persons who are eligible in law to express such consent.

Meaning:

Homosexuality means any person who is sexually attracted or who found inclination  to the people of their own sex like LGBT community. Homosexuality is  equally natural as other kinds of sexual orientations. Homosexuality is not by choice it’s completely natural therefore interfering in their personal right which are guaranteed to all under article 21. It is natural expression of affection and it is neither physical nor mental illness. American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.[3]Heterosexual and homosexual behaviors are both normal aspects of human sexuality.[4]The American Psychiatric Association in December 1973, opined that the manifestation of sexual attraction towards persons of the opposite sex, or same sex, is a natural condition.[5]

Historical view in relation to homosexuality:

According to Arthshastra, non-vaginal sex of all types are punishable. They were treated as smaller offence punishable with fine while other kinds of sexual acts were treated harshly. The yajnavalkya Smriti prescribes fines for such acts like homosexuality including those with other men.  Manusmriti also punishes such kinds of unnatural sex like of homosexuality and prescribes light kinds of punishments for such acts of homosexuality. Although same sex relations were originated in all over the world from ancient period and were not consider as a serious crime. In India, LGBT relation use to found from Vedic period. Many stories in Hinduism and temples in India define the same sex relation.

  • Shikhandi: Shikhandi is the character in the Mahabharata, whose mother raise and trained her as a female and then she eventually marries a woman.[6]
  • Iravan: Iravan is a minor character from the Hindu epic Mahabharata. He requested that he be married before his death but no women was ready to marry him as he was on his death bed. To complete his last wish, Lord Krishna took his female form name Mohini and married him.[7]
  • Khajuraho Temples: This temple is famous for their sculptures contain several depictions of homosexual activity.

Law relating to Homosexuality in India:

Section 377 of IPC deals with criminalization of homosexuality. It states that sexual intercourse against the order of nature with any man, woman or animal shall be punishable with imprisonment for a term which may extend to 10 years and fine. There is an explanation attached to this section which states that to constitute an offence under this section, penetration is sufficient.

The Buggery Act of 1533: Section 377 in British India was modelled on the Buggery Act 153. This was enacted under the reign of King Henry VIII. This law defined buggery as an unnatural sexual act against the will of God and man. Therefore, this act criminalizes anal penetration, bestiality and in a broader sense homosexuality.

Offences against the Person Act 1861: this act broadened the definition of unnatural sexual acts and allowed prosecution of rapists easily and also of homosexuals. This act is known as the inspiration of Section 377 of IPC. Homosexuality was de- criminalized and same sex marriage was made legal in UK and now Indian Judiciary has also De- criminalized homosexuality.

Recent Court’s verdict or Judgments:

  • Over the years, Section 377 has been challenged in both the High Court of Delhi and Supreme Court. First time the question of constitutionality of Section 377 had raised by the Non- governmental Organization Naz Foundation Trust in 2001 before the Delhi High Court. It was filed to allow homosexual relations between consenting adults. They contended that, Section 377 violates Fundamental Rights (Article 14, 15, and 21) of the Constitution. However, at first instance the suit was dismissed. To this dismissal, Naz Foundation appealed to Supreme Court and then Supreme Court instructed the Delhi High Court to reconsider the matter. Then, this led to historic judgment in 2009 which decriminalized sexual acts between consenting adults. This judgment was delivered by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar. It was held that, “the provisions of section 377 of IPC will continue to govern non- consensual penile non-vaginal sex and penile non- vaginal sex involving minors.
  • To this judgment, a Delhi- based astrologer, Suresh Kumar Koushal Challenged the decision of Delhi High Court in the Supreme Court. In this case, it was contended that state is bound to maintain public health in the general society since homosexual sexual activities constitute High-Risk Groups (HRGs) among population prone to HIV/AIDS. In India, Female Sex Workers (FSW), Men who have Sex with Men (MSM), Hijras/Transgender (H/TG) people, and Injecting Drug Users (IDU), collectively referred as High-Risk Groups (HRGs) under National AIDS Control Programme (NACP), are more infected with HIV than the rest of the population. HIV prevalence in these groups is 7-28 times that of overall adult HIV prevalence of 0.22%[8] Anal intercourse between two homosexuals is a high risk activity, which exposes both the participating homosexuals to the risk of HIV/AIDS and this becomes even grave in case of a male bisexual having intercourse with female partner who may not even be aware of the activity of her partner and is yet exposed to high risk of HIV/AIDS.[9] No Constitutional right vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated.[10]  So the Supreme Court set aside the decision of Delhi High Court and held that Section 377 Indian Penal Code does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
  • Then, in 2016, Navtej Singh Johar, an award winning Bharatnatyam dancer along with chef Ritu Dalmia and Hotelier Aman Nath files a writ petition challenging section 377 of IPC on the grounds that it violates Fundamental Rights enshrined in Part III of the Constitution. Top hotelier Keshav Suri also filed petition in Supreme Court and joined the fight against Section 377. This petition was heard by five-judge bench including Chief Justice Dipak Misra, Justice Indu Malhotra and others.

While hearing the petition, court took into consideration various contentions and judgments. Sexual orientation is an individual’s sexual preference, whether homosexual, heterosexual or bisexual. Sexual orientation refers to a person’s sense of identity based on sexual attractions, related behavior, and membership in a community of others who share those attractions.[11]

Privacy of the individual is an essential aspect of dignity. The autonomy of the individual is the ability to make decisions on vital matters of concern to   life.   Privacy has not been couched as an independent fundamental right. The   family, marriage, procreation   and   sexual   orientation are   all   integral   to   the   dignity   of   the individual. [12] Then the Supreme Court after taking into consideration all the contentions, unanimously held that Section 377 be held unconstitutional as it is irrational, indefensible and manifestly arbitrary.

Need of De-Criminalization of Section 377:  

There are incidents which show that there was need for de-criminalization of section 377. Expression of choice in accord with law is acceptance of individual identity. It is also necessary because the condition prevailing in country demands that as suicide cases increases due to inequality and cruelty faced by them. Even instance of torture by police and other officials have been encountered since long.

In case of Jayalakshmi v. The State of Tamil Nadu[13], in which an eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he had been picked up on the allegation of involvement in a case of theft. There was evidence indicating that during police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forcing him to have oral sex. Likewise there are many other incidents of harassment and torture that LGBT communities suffer just because they express their identity.

Likewise many members of LGBT community suffer discrimination. Even basic fundamental rights are not provided to them like Right to Equality i.e. Article 14, Article15, Article 19 and most importantly Article 21. Section 377 of the Indian Penal Code violates Article 14 to the Constitution (Right to Equality before the Law) because it did not define “carnal intercourse against the order of nature”. Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person’s sexual partner, Section 377 violates Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner, and Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.” And we know that, any law made in contravention of Part III is dead from the very beginning and cannot at all be taken notice of or read for any purpose whatsoever.[14] But they become void only after the court holds them inconsistent with the fundamental right.[15] It means it is for the judiciary to decide whether any enactment is constitutional or not.[16] Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21.[17] The battle for equality and recognition for rights of homosexuals has been long and still going. Judicial recognition to same sex marriage and homosexuality is a step toward equality and dignity to such people. Many nations legalized Homosexuality and there right to marry for the protection of human right of LGBT communities. This recognition by Court in Navtej Singh Johar v. Union of India decided in 2108 will lead to social, economic and political development of not only LGBT community but of country as a whole.

The rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7- 8% of the total Indian population, need to be recognized and protected, because sexual orientation is an integral and innate facet of every individuals identity. A person belonging to the lesbian, gay, bisexual and transgender (LGBT) community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma. The impact of sexual orientation on an individual’s life is not limited to their intimate lives but also impacts their family, professional, social and educational life.

They need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships. The case of Indra Sarma v. V.K.V. Sarma[18] recognized rights arising from live-in relationships. Even Protection of Women from Domestic Violence Act, 2005 give recognition to rights for various kinds of live-in relationships. The same protection, must be given to same sex relationships. Individuals belonging to the LGBT group or community suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values and a kind of taboo which was  prevalent during the Victorian era where sexual activities were considered mainly for procreation. The lesbian, gay, bisexual and transgender (LGBT) community remains in a constant state of fear which is not conducive for their growth.

Section 377, if retained in its present form, would involve the violation of, not one but, several fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and right to freedom of expression. Sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution and the said view has also gained approval of this Court in the NALSA case. Sexual autonomy and the right to choose a partner of one’s choice is an inherent aspect of the right to life and right to autonomy and section 377 violates such right. In case of Shakti Vahini v. Union of India and others[19] and Shafin Jahan v. Asokan K.M[20].,  it has been clearly recognized that an individual’s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution.

As we know that, Constitution set out principles for an expanding future which is to be used and applied to fix various human affairs.[21] When any provision violates the principles of the Constitution, it must be declared unconstitutional. Constitutionality of a provision will have to be judged on the basis of interpretative changes of the statute affected by passage of time.[22] A law when enacted may be constitutional but with the passage of time and changes in the society, it may be held to be unconstitutional. So, Section 377was held unconstitutional on the basis of above grounds in case of Navtej Singh Johar v. Union of India[23]. This will help the country to keep pace with other countries and ultimately lead to the development of the country. After this developmental step, government should help them to grow and stand equal in the society. India is one of the largest democratic country in the world which prove ample amounts of rights to its citizens but lesbian, gay, bisexual and transgender (LGBT) community which is in minority in India are unable to exercise such rights because of prevailing section 377 in Indian penal code.

International Status of Law relating to Homosexuality:

There are many Countries which gave legal recognition to homosexuality. International law today has evolved towards establishing that the criminalization of consensual sexual acts between same-sex adults in private contravenes the rights to equality, privacy, and freedom from discrimination. The Supreme Court of the United States in case of Obergefell v. Hodges, Director, Ohio Department of Health[24], acknowledged that adults may choose to enter upon a relationship in the confines of their homes and their own private lives and still retain their dignity as free persons and that when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The Court held that such liberty protected by the Constitution allows homosexual persons the right to make this choice.

The Constitutional Court of South Africa in case of National Coalition for Gay and Lesbian Equality v. The Minister of Justice[25]observes that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution. The Supreme Court of Canada, in case of Delwin Vriend and others v. Her Majesty the Queen in Right of Alberta and others[26], while interpreting a breach of Section 15(1) of the Canadian Charter of Rights and Freedoms, arrived at the conclusion that ‘sex’ includes sexual orientation.

When homosexuality is being legalized, then next step in furtherance of it is legal recognition to the same-sex marriage.

In the United States, same-sex marriage has been legal nationwide since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges[27]that state-level bans on same-sex marriage are unconstitutional

The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie[28]on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes.

In 2003 Massachusetts Supreme Court held in Goodridge v. Department of public health[29] that LGBT couples has right to obtain marriage license.

In Dudgeon v. the United Kingdom[30], the court laid down decision in favor of LGBT community and said that their rights has been violated under Article 8 of ECHR (European convention on human rights) and further stated that right to family life also includes sexual relation.

Along with USA, Canada and South Africa many other countries have legalized homosexuality and same- sex marriage. As of January 2021, 29 countries recognized same-sex marriage. Netherland is the first country to legalize same sex marriage in 2001. Recently Australia , Germany and Malta legalized same-sex marriage in 2017 and Taiwan made history as it became the first government in Asia to welcome legislation on marriage equality and Costa Rica became the first Central American Country to make same sex marriage legal. Some of the countries which legalizes homosexuality and same sex marriage are Belgium, Canada, Spain, Norway, Sweden, Iceland, Portugal, Argentina, Denmark, New Zealand, Brazil, UK, Scotland, Finland, Greenland , Ireland, and many other countries. And now India is also a part of this list as in case of Navtej Singh Johar v. Union of India de-criminalized homosexuality.

 Conclusion:  

158 years is a too long period for denial for basic human rights to LGBT community. Discrimination only on basis of one’s sexual orientation is completely void and there seems no intelligible differentia and reasonable classification for such discrimination. International laws had recognized lesbian, gay, bisexual and transgender (LGBT) community people as third gender and granted them equal rights as exercised by other gender, now it’s time for India to recognize lesbian, gay, bisexual and transgender (LGBT) community as third gender and decriminalize section 377 which arbitrarily effects the rights of lesbian, gay, bisexual and transgender (LGBT) community people in choosing their partner. Morals and social acceptance although necessary yet one cannot be denied of rights only on this ground. LGBT is not new for Indian. Many stories and temples in India reflects the existence of lesbian, gay, bisexual and transgender (LGBT) community and full respect was given to them. Society as a whole resist changes but it is the duty of courts to interpret it in a manner so to ensure all equality and dignified life. So, the Courts did their duty and for providing them a dignified life, they struck down Section 377 which criminalizes homosexuality, declared it unconstitutional for providing them equality. After striking down and concluding the judgments on Section 377 even I suggest special privileges must be given to them so to make them equal to other genders. The lesbian, gay, bisexual and transgender (LGBT) community should be given privilege in education, employment and other activities so that they stand equal in the society and equally grow in the society as other peoples do. Appropriate amendments must be made in personal laws or a special law must be made in regard of lesbian, gay, bisexual and transgender (LGBT) community which govern their relations, marriage adoptions and other related matters


[1] Decided on 6 September 2018.

[2] Pundir, Pallavi (6 September 2018). “I Am What I Am. Take Me as I Am”. Vice News. Retrieved 8 September 2018.

[3]American Psychological Association, “Answers to your questions for a better understanding of sexual orientation and homosexuality,” 2008.

[4]Lawrence v. Texas; 539 U.S. 558(2003).

[5] Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) Behavioral Sciences (2015), at p. 565.

[6]Pattanaik, D. (2000). The Goddess in India – The Five Faces of the Eternal Feminine.Library of Congress catlougue publication.

[7]Pattanaik, D. (2010). Jaya : An illustrated retelling of the Mahabharata.

[8]National AIDS Control Organization (2020). Programmatic Mapping and Population Size Estimation (p-MPSE) of High-Risk Groups: Operational Manual. New Delhi: NACO, Ministry of Health and Family Welfare, Government of India.

[9]Suresh Kumar Koushal&Anr.v.Naz Foundation &Ors.AIR 2014 SC 563.

[10]Id.

[11] GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence.

[12] Justice K.S. Puttaswamy and Ors. v. UOI and Ors. (2019)1 SCC 1.

[13](2007) 4 MLJ 849.

[14]RakeshVij v. Raminder Pal Singh Sethi, (2005) 8 SCC 504.

[15]John Vallamattom v. Union of India; AIR 2003 SC 2902.

[16]A.K Gopalan v. State of Madras; AIR 1950 SC 27.

[17]Gobind v. State of Madhya Pradesh and Anr. (1975) 2 SCC 148, Lawrence v. Texas: 539 U.S. 558 (2003).

[18] (2013) 15 SCC 755.

[19] (2018) 7 SCC 192.

[20] AIR 2018 SC 1933.

[21]M. Nagaraj and Ors. v. Union of India and Ors.;(2006) 8 SCC 212.

[22]John Vallamatom v. Union of India; (2003) 6 SCC 611.

[23] Decided in 2018.

[24] 576 US (2015).

[25] 1999 (1) SA 6 (CC).

[26] [1998] 1 S.C.R. 493.

[27]576 U.S. 2015.

[28][2005] ZACC 19

[29]798 N.E. 2d 941.

[30]Appl no. 7525/76.

Author: Jyoti Bhatt, Law College Dehradun, Uttaranchal University

Editor: Kanishka VaishSenior Editor, LexLife India.

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