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This article investigates the legalizing of homosexuality within India. It covers the court’s opinion on Section 377 of the IPC, as well as the difficulties posed by this provision. The article discusses how Section 377 breaches some of the fundamental rights of homosexuals. the article discusses how far the courts can go in this matter and where Parliament’s obligation begins. The research illustrates the importance of society in constitutional revision. The text emphasizes the fact that a modern concept of knowledge and equality of liberties is on its way, and we must recognize it.
Keywords: Homosexuality, Section 377, Indian Penal Code, Fundamental Rights.
Section 377, a provision of the Indian Code criminalizing homosexuals, was established in 1861, under the British domination of India. About “unnatural offenses,” it states that anybody who has an intimate relationship with any man, woman, against the orders of any nature is punishable for life with capital punishment. In a landmark judgment in 2018, the Indian Supreme court decriminalized and made it lawful to have homosexual relations with consenting adults in India under section 377 of the Indian Penal Code. This legislation was originally challenged in 2001 by an NGO which was based in Delhi named Naz Foundation, as well as AIDS Bedhbav Virodh Andolan(ABVA), in the Delhi Court, however, the applications were rejected for a variety of grounds. However, sex between same-sex adults was legalized by the Delhi High Court in 2009. It was said by the high court that the law was against the constitution and was violating Articles 14,15 and 21 of the Indian constitution which were very basic fundamental rights that were granted to every citizen of India. However, in the year 2013, the Indian Supreme court overturned the judgment that was given by the high court of Delhi and said the judgment that was given by the high court was found to be legally unsustainable, the petition was filed by the Naz Foundation was also quashed by the supreme court. In the later rulings, in the year 2014, it was directed to the government of India by the Supreme Court that the transgenders were to be specified as the third gender, and also it was ordered by the supreme court that they should be considered as OBC quota to get special provisions as requested by them. In 2016, LGBTQ activists filed five petitions with the Supreme Court, alleging forms of discrimination to sexuality, sexual independence, sexual partner choice, life, privacy, dignity, and other fundamental rights guaranteed by Article 377 of the Constitution. In this context, the Supreme Court convened a five-judge jury to consider applications alleging violations of Article 377. On September 6, 2018, the Supreme Court panel ruled that consenting adult homosexual intercourse is not a crime and that articles 14 and 15 contradict the existing interpretation of Section 377. The Supreme Court also ruled that Section 377 still applies to conduct involving sex with minors and non-consensual sexual acts.
ARTICLE 14, 15, 21 OF THE INDIAN CONSTITUTION
In brief, article 14 of the Indian Constitution speaks about equality before the law for every citizen who is residing before the territories of the country. Article 15 of the Constitution secures every citizen of the country from any type of discrimination by the state whether it might be on caste, religion, sex, age, race, place of birth, or any such instances. Article 21 of the Indian constitution speaks that No individual should be denied equal rights before the law or equal protection of the law within the territory of India except by the procedure provided by law.
HISTORY OF SECTION 377
There is much discussion in India nowadays over the issue of decriminalization of homosexuality.
Before delving into anything further, let us first define homosexuality. Karoly Maria Benkert, a 19th-century German psychologist, coined the word “homosexuality.” In layman’s terms, “homosexuality” refers to sexual attraction between people of the same sex. It legally refers to “a person of the same sex or sexual intercourse involving persons of the same sex, which is connected to or characterized by sexual desire.” Homosexual people have been present on our planet from the beginning of time.
This article currently examines section 377 of the Indian Penal Code, restricting research to India. This section has been inserted into the Indian Penal Code by Lord Macaulay. In 1860, while India was a British territory, the Indian Penal Code was drawn up. The results were more or less comparable to those of England to the laws created in India.
Section 377 reads 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”.
After we lost the First War of Independence in 1857, the British imposed this clause in India. Previously, homosexuality was not punishable in India.
ISSUE WITH SECTION 377
This Indian Penal Code provision criminalizes all of nature’s sexual activity. This clause criminalizes homosexuality, in other terms. This clause is now under discussion since it even criminalizes consensual sexual activity. The question is, therefore, that it breaches Article 14, Article 15, and Article 21. It also violates the right to privacy of a person. Homosexuality was first deprived of its status in 2009. It was a written plea submitted to the Delhi High Court by the Naz Foundation, an NGO. The NGO questioned section 377’s constitutional validness since it criminalized any sexual actions, whether voluntary or unintentional, against the order of nature. The NGO argued that Section 377 infringed persons’ basic rights and should thus apply to sexual and underage involuntary activities. The Court concluded that “section 377 of the IPC violates Articles 21, 14 and 15 of the Constitution in so far as it criminalizes the sexual conduct of adults on a consensus basis. Nonconsensual penile non-vaginal sex and penile non-vaginal sex involving children shall continue to be governed by Section 377 IPC. “Adult” refers to all those who are 18 years and older. A person under 18 is supposed not to agree to a sexual act. This clarification will of course take place until the European Parliament decides, as far as we are concerned, to modify the legislation to implement in its 172nd report the proposal of the Indian Law Commission that removes a lot of misunderstanding. The Supreme Court of India held that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable. Before concluding the case, we would like to emphasize that this Court has only ruled on the validity of the Delhi High Court’s opinion on the legality of Statute 377 IPC, concluding that the aforementioned section does not have any constitutional flaws. Nevertheless, a competent legislature is free to evaluate, or to alter the law, as suggested by the Attorney General, whether the deletion of Section 377 IPC is desirable or properly destroyed in the Statute Book. The Naz Foundation Suresh Kumar Koushal v. (2012). In other words, the Supreme Court of India held that the Parliament of India can and is not in the hands of the Court to dismiss or alter Section 377 IPC. Again a large number of people protested the Supreme Court’s decision and the Supreme Court decided in 2018, to review the matter. This time, the center’s decision on Section 377 was left at the discretion of the court.
This case was named a bigger bench in 2018. The Chief Justice concluded that its constitutional legality can be called into doubt, even if the law is not modified.” On 10 July, on a series of petition bands contesting the constitutional validity of Section 377 a five-judge bench, composed of the Indian Chief Justice Dipak Misra and Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra.
It was argued by the petitioners that section 377 of the Indian Penal Code violates articles, 15, 21 of the Indian constitution since it was discriminating people who involve homosexual activities and also LGBTQ as a violation of the right to equality, freedom of speech, and expression. However, it was contended by the lawyer of the defending parties that the concept of decriminalization of homosexual activities needs to be decided by the Indian Parliamentary but not by the courts.
It was said by one of the most famous judges Nariman that “One may decide to enact, one may decide not to.. (the court) is not going to wait for a majoritarian government to protect the fundamental rights of the citizens.”
Mr. George had studied all the research studies that were made by the organization that was based in Washington D.C and he claimed that sexual intercourse between two adults is “not innate,” citing a lack of proper evidence. It was further claimed by George that section 377 of the IPC does not violate article 15 of the Indian Constitution because article 15 banned any discrimination that is based on sex but not on sexual orientation.
It was also claimed by MR. K.S. Radhakrishnan who spoke in representing one of the parties that section 377 of the IPC did not prohibit “sexual orientation,” rather it prohibits “certain actions that are criminalizing such acts was highly crucial in preventing deadly diseases like the HIV, AIDS, etc.
This case was currently in process before the supreme court.
EXCEPT FOR THE JUDGEMENT IT WAS ALSO STATED BY THE SUPREME COURT that other sections of Section 377 concerning unnatural intercourse with animals and children will continue to apply. The judges also expressly said that the constitutional legality of Article 377 was alone ruled and that they were not looking into it about other rights such as marriage or legacy. To what this will mean in the longer run, still too early. Author Sandip Roy told the BBC that while the judgment was a reason for joy, obstacles still needed to be addressed and anti-discrimination laws needed to be enacted. “I think we’d be insane to assume it’s the end of the battle,” he added.
POLITICAL PARTIES REACTION TO THE JUDGEMENT
The ruling BJP( Bhartiya Janata Party) party has stated that the decision would be left to the Supreme Court. However, one of its members expressed dissatisfaction with the judgment. “It might lead to an increase in the number of HIV infections,” warned Subramanian Swamy, who is renowned for making controversial remarks. Meanwhile, the judgment has been hailed by the main opposition Congress party, which says it “hopes this is the beginning of a more equitable and inclusive society.” The United Nations has also praised the decision, stating that “sexual orientation and gender expression are fundamental parts of an individual’s identity across the world.”
LAW AGAINST HOMOSEXUALITY IN BRITISH COLONIES
More than 80 nations have or still have anti-homosexuality legislation across the world. More than half of them were British governed at some point. After Thomas Babington Macaulay, his major author was the Indian Penal Code of 1860, generally referred to as the Macaulay Code, the primary legislation that criminalized homosexuality in India. It had a major effect on many other British territories, including Fiji, Singapore, Malaysia, and Zambia. It was reproduced here. Section 377 of the Code, followed up today at the Supreme Court, reads as follows: ‘Whoever voluntary has a carnal sexual relationship with man, woman or animal against an order of nature, shall be punishable by life imprisonment or by imprisonment for any term of ten years or by fines of any description. Over the years, British authorities’ criminal laws have been in force for several of their colonies several years before their decision was stopped by the Crown. By the middle of the 20th century, however, England itself was rapidly changing from the legislation to same-sex behaviors.
An increasing corpus of scientific study in and around Europe and the burgeoning worldwide media guaranteed that sufficient information was communicated to the public on this subject. Finally, in 1967, for England and Wales, the United Kingdom Parliament revised the legislation. However, some of its colonies still have their shadows to come.
LEGAL STATUS OF HOMOSEXUALITY AROUND THE WORLD
In Iran, Sudan, homosexuality in Saudi Arabia, according to Sharia law, Yemen law is still worthy of death. The same applies to portions of Northern Nigeria and Somalia. The capital penalty is endorsed in two distinct countries of Syria and Iraq by non-state actors on the screen, including the Islamic State.
The research notes that despite the possibility for a death penalty in sharia courts in no fewer than five countries – Pakistan, Afghanistan, the UAE, Qatar, and Mauritania – there is no evidence to suggest that the death penalty has been executed for consenting homosexual conduct. Pure and Applied Mathematics International Journal Special question between private adults. In 71 states, same-sex relationships, which are criminalized differently in the context of legislation addressing homosexuality, buggery, and “acts against nature, etc.,” might result in a jail sentence. A recent study by Equaldex reveals that consensus sexual behavior among persons of the same sex is lawful in much of the northern hemisphere. However, it persists illegally over areas of Asia, Africa, and the Middle East. It is punished with death in certain nations Like Mauritania, Saudi Arabia, Iran, and Afghanistan. It’s banned just for guys in other nations. Homosexuality is unlawful to males but legal to women in Turkmenistan, Sierra Leone, and Zimbabwe, for example.
THE COUNTRIES THAT MADE HOMOSEXUALITY ILLEGAL ARE:
The International Lesbian, Gay, Bisexual, Trans, and Intersex Association (Ilga) published a study in 2017 that listed 72 nations and territories where same-sex partnerships were still illegal, including India until its recent judgment. Most of it is in South Asia, Africa, and the Middle East. The research claimed that homosexuality in eight countries may still lead to the death sentence.
In India, the decriminalization of homosexuality is a major subject these days. The Delhi High Court decriminalized homosexuality in 2009, but the Indian Supreme court reversed that decision in the year 2013. A lawsuit for legalizing homosexuality is currently before Apex Court. Even the Indian Government has delegated jurisdiction to the courts to resolve the matter this time, even though it is normally the Legislature that has the ability to repeal laws. Homosexuality is a crime in India under Section 377 of IPC. I believe that homosexuality should be decriminalized since Section 377 violates homosexuals’ fundamental rights. The right of gays to equality, freedom, life, and liberty is violated by Section 377. Their right to privacy is likewise jeopardized. The biggest problem in the passage, in my opinion, is criminalizing gays’ consensual sexual acts. Everyone should be entitled to do anything you want, like any other person, except when and until the rights of others are infringed. The Indian Constitution is a living document that is always changing. As society evolves, so must the constitution to suit the demands of the time, and history demonstrates that our constitution has advanced in many ways. A comparable need remains today. With the increasing understanding of individual rights and acceptance of everyone in the community, the moment has arrived to ensure that everyone has their rights and is treated equally.
Author: Rahul varma Mandapati, Kirit P. Mehta School of Law, Mumbai
Editor: Kanishka Vaish, Senior Editor, LexLife India.