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Written by: Sejal Kaul
In the Indian social psyche, there seem to be inconsistencies in some questions still in age-old moral values as India is heading toward the liberal period that it has ever seen as technological, educational and cultural changes leap forward. LGBTQ+ rights have not yet survived as one of the transformations a society would like to see in the 21st century. While the 2009 decision of the Naz Foundation v. the NCT government of Delhi came as a surge of relief, as stated in this paper, Indian society struggled to recognise the "queer."
In this article, you will mostly examine the history of the LGBTQ+ community's case law care that reflects the urgent need for a decision such as that of the Naz Foundation, and ultimately analyse the judgement in detail and take note of its consequences. This essay claims, at their end, that the LGBT community in India has a long struggle in relation to other countries considering the decriminalisation of Section 377 of the Indian Penal Code.
A historical Indian legal perspective
Homosexuality is not a disorder or psychiatric condition, but merely another manifestation of human sexuality". Since its application as legislation in 1862, Section 377 of the Indian Penal Code, the colonial figure, has criminalised 'unnatural sexual behaviour.' These activities entail homosexuality which could draw legal prosecution. Legislatures and courts around the world have upheld policies of the previous century that penalise homosexuality and transgender conduct and defend them because of general decency and morality. The campaign against the repressive and patriarchal existence of Section 377 developed rapidly with the emergence of the new epoch, resulting in the Naz Foundation v. Delhi NCT Government, which acknowledges the anachronism of Section 377 and interprets it as excluding sexual activities between consenting adults, decriminalising homosexuals While there are few consequences of the decision and the Indian Parliament act could be overturned, the judgment is a landmark in civil liberties litigation and may be regarded as one of the stepping stones to the emancipation of the sexual minorities in India from tyranny and coercion at the hands of the law.
However, before this ruling, Section 377 was widely used in the harassment and exploitation of homosexuals and transgender people by law enforcement agencies. In recent history, many such events have occurred. The courts' approach to the homosexual, gay, bisexual and transgender communities may also be defined. It was held that oral sex falls within the scope of Section 377 of the IPC in Calvin Francis v. Orissa. The Court has used as driving principles references to Corpus Juris Secundum on sexual perversity and irregular sexual pleasure. It was also held in Khanu v. Emperor that, "Section377 of the IPC explicitly violates the order of the existence of those individuals possessing carnal intercourse against, inter alia, mankind... [if the oral sex, in this case, is a fleshly relationship], since the natural purpose of fleshly relations is that a conception of human beings should be necessary. In R. c. Jacobs and Govindarajula, courts holding previously In Re will not be an offence under Section 377 IPC to inject the penis into the mouth. Later, Section 377 of the IPC covered vaginal, anal and sex, and penetration of other orifices.
It is clear that the tests for attracting criminal legislation have switched from being non-procreative to imitating sexual evil. In Jayalakshmi v. Tamil Nadu, after he was taken on a charge of complicity, the eunuch committed suicide due to the abuse and torture perpetrated by police officers. There was proof that he was subjected to torture during police detention by inserting a wooden stick into his anus and certain police officers pressuring him to have oral relationships. He sacrificed himself in the police station on 12.6.2006 and subsequently succumbed to burning wounds on 29.6.2006. Rs.5 million/- was compensated to the victim's relatives. In the case of AIDS Bhedbhav Virodhi Andolan v. Union of India, it was also argued that homosexuality shouldn't be accepted by Indians because
(1) Indian culture and society does not accept homosexuality;
(2) Homosexual criminal activity is necessary to provide a healthy environment by criminalising unnatural sexual events.
(3) Also the 42nd report of the Law Commission states: "Firstly, it is uncontroversial that homosexual behaviour and tendencies on one spouse's part can have an effect on marital life and other spouses' satisfaction. Secondly, even considering that actions performed in private with permission are not in themselves a grave evil, the possibility of repealing laws in effect for a very long period is present."
A change in 2009
In comparison, the Naz Foundation is, for the previously marginalised sex minorities, in one sense a cause for immense joy. It is a means of release on both planes: it decriminalises gay activity between homosexuals, while at the same time protecting the law enforcement from abuse and vilification. It also guarantees that the sexual minorities are protected from different health problems by taking their status to the public's consciousness. The Court rightly found that the rights of people to privacy and a life of integrity should only be subordinate to some overarching public interest. In addition, the Court reviewed the procedural legitimacy of the challenged legislation and found its conformity with unique clauses of the Indian Constitution. Having held that sexual interests fell under the right to human integrity and privacy, the Court held that Section 377 was a blatant violation of the right eluded to above and therefore infringed on the content of Article 21. The Court applied the tests developed by the Supreme Court after the ruling of Western Bengal v. Anwar Ali Sarkar, to address the issue of violations of Article 14Through his observation, the Court saw an unfair discrepancy between the impugned statute and the criminalization of intimate sexual activity between adults and avoiding child sexual exploitation or improving public health. The Court then interpreted the word 'sex' as referring not only to gender but to a broader periphery like 'sexual orientation' in Article 15. The court ruled, in this sense, that Section 377 is in breach of Article 15[20] and is prima facie discriminatory against sexual minorities. The Court found that it was superfluous to take up the issue of infringement of Article 19, given the contested law which contravened Article 21 and Article 14. The courts extended the severability doctrine as a sign of finality only to the degrading of consensual intercourse between adults in order to interpret the disputed statute.
Finally, the Court pointed to the 1967 UK-Wolfenden Committee study and the Statute on Sexual Offenses, which decriminalised gayness under English law. The 172nd report of the Law Commission reinforces its findings and takes the same position: "Section 377 must be implemented in its present form."
To conclude, the Judgment does not suggest or even authorise homosexuality, as Mr Ram Jethmalani, a prominent criminal lawyer in India, writes. Although the disgusting arrogance that my behaviour is normal and that other people violate it is eliminated.
International Day Against Homophobia, Biphobia, and Transphobia
This article is being posted commemorating the International Day Against Homophobia, Biphobia and Transphobia (IDAHO), observed every year on May 17 since 2005. This initiative was vocalized in 2004 and it succeeded to gain the support of 24,000 allies, along with the International Lesbian and Gay Association (ILGA), the International Gay and Lesbian Human Rights Commission (IGLHRC), the World Congress of LGBT Jews, and the Coalition of African Lesbians, whom all signed an appeal to support it. The main aim of this day is to coordinate efforts taken to advocate against LGBTQ+ rights violations and bring awareness to the plight of their community. Moreover, it was on May 17 1990 the World Health Organization decided to declassify homosexuality as a mental disorder from the International Classification of Diseases.
Conclusion
The Indian Constitution guarantees fair legislation and equal rights and calls on persons to give up activities that are unacceptable for the equality of men, women, and the LGBT community. However, recently acknowledged, the LGBT community has been suffering in Indian society. As described earlier. It takes us even a great deal to tolerate homosexuals, gays, bisexuals and transgender people.
However, with time and a change in the mindset of the common public, more liberal judgments and living conditions are being fostered. It is a surety that with constant perseverance our country too will eventually go down in history as one with an LGBTQ+-friendly living standards.
Citations:
Indian Kanoon
Wikipedia
Section 377 of IPC