“LGBTQIA+ RIGHTS IN CONTEMPORARY INDIA: A LEGAL ANALYSIS AND THE WAY FORWARD” By - Neelam Jhajharia

“LGBTQIA+ RIGHTS IN CONTEMPORARY INDIA: A LEGAL ANALYSIS AND THE WAY FORWARD”

Authored By - Neelam Jhajharia

INTRODUCTION

Gender, sex, and sexuality have been viewed differently since 2018. The Supreme Court's decision in Navtej Johar v. Union of India, which declared that consensual same sex was no longer criminalised under Section 377 of the Indian Penal Code, was a landmark victory for the rights of the LGBT community and other sexual minorities in India. The Supreme Court expanded the definition of "sex" in the Constitution to include gender identity and sexual orientation in order to preserve their rights. This broader interpretation of gender has good implications for our understanding of gender beyond the dichotomy of male and female and for breaking down rigid gender norms in society. This historic decriminalisation prompts the question, "Have we attained full equality for transgender persons, or do we need to go beyond Section 377?" in the context of transgender rights.

 

Even in progressive and radical communities, sexuality is often dismissed as trivial and middle-class. An underlying view of sexual behaviour as something abnormal and unnatural, at best defended as a personal freedom but not a matter of importance for the human rights movement, emerges in this setting. Issues like economic inequality and the oppression of women, minorities, and people of other races and ethnicities are typically regarded as more pressing than those of a sexual nature. This, however, glosses over the fact that sex is inextricably linked to ideologies and institutions of social oppression like as hierarchy, capitalism, classism, and non-secular Protestantism. This is why the fight for sex rights is inextricable from the fight for economic, political, and social freedom that all humans share.

 

 

 

CRITICAL ANALYSIS OF SECTION 377 IPC- A HISTORICAL INJUSTICE

The political and symbolic weight of the legal lobbying surrounding section 377 within the realm of sexuality rights is significant. However, the actual socio-legal struggle is much more intricate.

When it comes to the text of Section 377, it doesn't matter if the sexual act in question is between people of the same or opposite sex; it's illegal to engage in 'unnatural' carnal intercourse, period. This clause has been utilised in prosecutions for both oral and anal intercourse, as evidenced by case law. Many straight couples regularly indulge in anal intercourse, so it's clear that it's not exclusive to the gay community. Moreover, oral sex is often practised by couples of both the same and the opposite sex.

 

The historical 'injustice' of the legislation was not limited to the endorsement of arbitrary state action against LGBT people but rather extended to the establishment of a citizenship regime in which LGBT people's lives and loves were continually read within the framework of 'unnatural sexual practises. The subject of love or intimacy, desire or longing, was invariably reduced in the court registry to "carnal intercourse against the order of nature." The history of same-sex wanting persons in colonial India, including their experiences with emotions like love, has been largely ignored.

 

The Constitution did not end a long tradition of homophobic persecution in colonial India. Instead, the reinterpretation of the fundamental rights by C. J. Shah and J. Muralidhar in 2009 was an azaadi moment for LGBT people in India. In the oral arguments, for the first time, the court attitude toward homosexuality shifted, signalling a sea change in what the Constitution was to signify for LGBT people. By expressing compassion for the plight of the LGBT community and rejecting to frame homosexuality as a "excess" or "societal degeneration," the Justice has provided the legal system with a fresh lexicon with which to discuss homosexual expression.

 

It was a step forward for the legal profession that the Justices developed the concept of "constitutional morality" to express their views on morality. Judges flipped the concept of morality on its head when they decided that a proper reading of the Constitution necessitated a narrower interpretation of Section 377, despite the fact that Lord Macaulay's writings provided a rationale for the law's creation. Constitutional morality mandates the protection of LGBT people's right to form intimate relationships and their freedom from legal persecution.

When compared to the rest of the Indian Penal Code, Section 377 seems particularly at odds with the language of love and passion. There is little hope that the arid legal record can genuinely speak of emotions like love and longing, given its emphasis on 'carnal intercourse against the order of nature' and the necessity of 'penetration sufficient to establish a crime. Courts have been quick to label gays and homosexuality as "unnatural," "animal-like," "sexual perversity," and "despicable specimens of humanity" when interpreting Section 377 case law, with the primary focus being on sexual acts between minors and adults.

 

While it's true that most of the recorded cases under the provision involve non-consensual sex, there's also a story of couples who indulged in consensual intimacy but were nevertheless persecuted by the law. Reading between the lines of the verdict, it seems clear that Section 377 was used to criminalise gay relationships.

 

CRITICAL ANALYSIS OF NAZ JUDGMENT

It's understandable that the Delhi high court's 2 July, 2010 judgement in the Naz foundation case has been welcomed and embraced by the LGBT community after years of agitation against the existence of section 377 of the Indian penal code, which decriminalised homosexuality.

 

This is the traditional conception of the duty of the court as an institution that works against the will of the majority in order to safeguard marginalised people.[1] In the landmark case Carolene Products, Justice Stone of the United States Supreme Court said, "prejudices against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."[2] This counter majoritarian theme in Naz Foundation was borrowed from Anuj Garg[3], where the Supreme Court had expressed a similar sentiment:

 

“The issue of biological differences between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate. Such legislations definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic traditions do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over.”[4]

 

When it comes to discrimination, the Naz case makes clear that not only does it cover overt forms of bias, but also subtler forms such as harassment. Any provision that, at first glance, unfairly differs on the basis of a protected ground is considered to be discriminatory on the basis of that ground.[5]

 

When a marginalised group is disproportionately affected by a policy that appears to be nondiscriminatory on the surface, this is indirect discrimination. The Naz Foundation case unquestionably involved indirect discrimination. It would appear that anything other than peno-vaginal intercourse was forbidden under Section 377. As a result, it made it illegal for heterosexual couples to engage in oral and anal intercourse as much as it did for homosexual ones. Despite this outward similarity, homosexual men and lesbian women were the ones hit worst by prohibition because they can only engage in non-peno vaginal intercourse. In this way, section 377 was a form of indirect discrimination against the gay community.

 

Naz is one of the few Indian rulings that draw inspiration from cases decided in other countries in order to provide a novel result appropriate to the country's specific circumstances. Some of the countries whose literature and case law Naz cites alongside the more expected United States and United Kingdom are Hong Kong, Fiji, and Nepal.

 

Naz's legal rehabilitation is a testament to the widespread practise of collective humiliation enshrined in the Indian Penal Code and variously handled and enforced by the police and security services, all with minimal regard for human rights.[6] Dignity as a foundation of sexual minorities' human rights necessitates that the state and the law shall not foster societal and cultural biases and practises of discrimination directed against these.

 

Naz is also a step toward the eventual realisation of the unrecognised human rights associated with sexual orientation and behaviour. Naz completely embraces and claims the UDHR's affirmation of dignity, which states that all persons have inherent dignity just because they are born, as true. Due to their superior moral reasoning and independent free will, humans need to be treated with respect.

Ultimately, the decision of the Naz Foundation is the recognition of the autonomy and dignity of such a group in asserting its love. This example exemplifies how the insurmountable walls of prejudice that underpin most public institutions can be overcome. Although some sorts of morality-based legislation and government action are forbidden by Naz, this is not the case. Instead, the decision implies that public disapproval alone is not sufficient to restrict a practise or behaviour. Naz, more than any other decision, has the power to reduce the widespread yet illogical moral condemnation of social outcasts.

 

Like in Roe v. Wade and Brown v. Board of Education[7], “which legalized abortion in the United States and ended racial segregation in public educational institutions, the Naz Foundation decision has the potential to be a case whose name conjures up the history of a particular struggle, celebrated the victory of a moment and inaugurates new hopes for the future.” The victory is also important because it introduces a radical politics of impossibility; by striking down what was previously unimaginable, the decision alters not only the conditions of the group whose rights and demands are at issue, but also the horizon of possibility for the law and for constitutional interpretation.

 

Politics and conflict are necessary to establish rights. We can only assume that rights are the creations of judges in the hazy realms of legal theory. The judges in the Naz Decision recognise that a constitution does not generate rights; rather, it merely confirms those that already exist.

 

CRITICAL ANALYSIS OF SURESH

KAUSHAL JUDGMENT

Many LGBT people, already suffering for their identity in India's legal and social system, had their faith and confidence shaken by the judgement by learned justices in the case of Suresh Kumar Kaushal v. Naz Foundation & Ors. The verdict has been heavily criticised by academics and attorneys for a number of reasons, including the fact that the Article 15 argument was not addressed. Learning and science, as exposed by the verdict, are given comparatively little respect. The court explicitly rejects compelling arguments from law outside India, which is standard practise in matters involving basic rights. Furthermore, despite acknowledging that it would be difficult to list 'unnatural' acts, the judgement continues to talk in terms of 'unnatural' acts, even as it says that it would be difficult to list them. This is contrary to medical, biological, and psychological evidence, which show that homosexuality is a completely natural condition, part of a range not only of human sexuality but of the sexuality of almost every animal species we know.

 

The underlying judgement, however, is what causes the most suffering and damage. Legal decisions are made without regard for the pain of others. The court does not appear to have been influenced by the numerous testimonies of rape, torture, extortion, and harassment suffered by gay and transgender people as a result of this statute. The court also doesn't seem to care about the parents of those persons, who testified that their children now suffer from paralysing terror, crippling self-doubt, and an inability to relax and enjoy family life as a result of their involvement with the criminal justice system. The stigma that is placed on individuals and their communities as a result of this criminalization is undervalued in the verdict.

 

The court ruled that the fact that just a tiny percentage of Americans identify as gay or transgender should not be used as a justification for interpreting Section 377 more narrowly. Indeed, the figures are not negligible. Even a conservative estimate of 5% of India's over 1 billion people being gay would amount to about 50 million individuals, which is larger than the populations of Rajasthan, Karnataka, France, or England combined. However, the Supreme Court could not shirk its responsibility to preserve the fundamental rights of the people, even if only a small number of people were actually in danger. Saying that Parliament has the right to arbitrarily arrest or deport the Parsi community because they only number in the tens of thousands is absurd. The judgment's rationale that fundamental rights-based justice can only be given if a significant number of individuals are affected is unconstitutional and harsh. Judgment has devalued people of varied sexual orientations.

“What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization or, worse, to recriminalize it, is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial low confidence for there is no doubt, that in the constitutional scheme, it is the judiciary that is the ultimate interpreter.”

 

 

 

LAW COMMISSION’S RECOMMENDATION OF 2000 RELATING TO SEXUAL OFFENCES

The Law Commission of India submitted its 172nd report on "Review of rape laws" to the Supreme Court on March 25, 2000, with the following recommendations: expanding the definition of sexual assault to include both male and female perpetrators and victims, using gender-neutral language to describe sexual assault that includes assault against male children, and increasing the legal marriage age for girls from 15 to 16 years old; and increasing the punishment for sexual assault against adults, children, and pregnant women.

 

For both perpetrators and victims of sexual assault, the language in the 172nd report of the law commission and the criminal law amendment act, 2000 versions is neutral. Several underrepresented groups highlighted important concerns about the potential consequences of gender-neutral sexual assault laws.

 

Thirty groups advocating for women's rights, sexual minority rights, children's rights, and human rights gathered in Mumbai from December 7-9, 2001, to discuss how to implement the recommendations of the 172nd LCI report and penal amendment 2000. A lack of consultation beyond the three Delhi-based organisations and worries about gender neutrality led to the group's rejection of the LCI 172nd report and the criminal law amendment act, 2000. The use of gender-neutral phrasing about sexual assault victims would open the door to charging sexual offences committed by boys under section 375/6, which has been met with praise.

 

Following the recent Delhi High Court ruling on section 377, which made a strong statement about the rights, dignity, and autonomy of same-sex sexualities, it has been common practise to refer to sexual assault using terminology that is gender neutral. However, the law would view same-sex sexual partners as both perpetrators and victims instead of a basis for legal and equal personhood.

 

Reason behind Non-Inclusion of LCI Recommendations relating to Sodomy Law in Criminal Law Amendment Act, 2013

Abolition of Section 377 was supported by both the LCI report and the Criminal Law Amendment Act of 2000. Once all forms of sexual assault against minors (both male and female) are sufficiently addressed by the Sexual Assault statute, there seems to be no reason to keep Section 377 on the books.

Unfortunately, the suggestions to eliminate section 377 and make sections 375 and 375/6 nondiscriminatory on the basis of gender were not adopted. A major complaint about the 172nd report of the law commission is that just three women's organisations were consulted: Sakshi, IFSHA, and AIDWA, in addition to the NCW. Other women's groups, child rights groups, queer rights groups, and others were ignored.

 

The Naz writ's critique of section 377 centres on the issue of whether or not the defendants were afforded a fair trial. The consultation process excluded many organisations with a vested interest in the struggle for the rights of sexual minorities. In a letter dated January 8, 2002, an informal coalition of lesbian, gay, bisexual, and transgender, KOTHIS, MSM, and HIV/AIDS groups questioned the procedure by which the Naz writ was brought. In response to this criticism, Naz and Lawyer's collective pointed out that they had hosted three public meetings to which many different groups in Delhi had been invited. The fact is that the process appears to have been inadequate when numerous representatives of groups and individuals indicate that they did not know about the petition prior to its filing or had received some sketchy rumours about it.

 

It is worth noting that Section 377 IPC is part of a category of crimes known as "sexual offences," which was addressed in one of the roughly 30 revisions made to the IPC since its introduction in 1950. It has been debated numerous times and was suggested for deletion in the 172nd Law Commission Report. However, lawmakers have shown no interest in changing or revisiting the statute. The fact that Parliament, the unquestionable representative body of the people of India, has not deemed it necessary to repeal the provision demonstrates that its members do not view its removal as desirable. This conclusion is bolstered by the facts that the Union of India chose not to appeal the Delhi High Court's ruling, Parliament did not change the legislation, and the Supreme Court of India, which protects our fundamental rights, reinstated the sodomy ban in its original form.

 

SUMMED UP ARGUMENTS FOR REPEALING/ AMENDING SECTION 377 IPC

1. Interpretation of Section 377 is not in consonance with the scheme of the IPC, with established principles of interpretation and with the changing nature of society.
2. Section 377 is impermissibly vague, delegates policy making powers to the police and results in harassment and abuse of the rights of LGBT persons. In State of MP v. Baldeo[8] Prasad, which held that, “Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent, it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Article 19 (5).”
3. Widespread abuse and harassment of LGBT person u/s 377 has been incontrovertibly established. It was supported by various documents brought on record, such as Human Rights Watch Report, July 2002 titled, “Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India”; Affidavits giving instances of torture and sexual abuse; Jayalakshmi v. State[9], “dealing with sexual abuse and torture of a eunuch by police; An Order of a Metropolitan Magistrate alleging an offence u/s 377 against two women even though there is an express requirement of penetration under the Explanation to Section 377.”
4. Homosexual males, in particular, have their dignity violated by Section 377. It is an offence for a homosexual man to engage in penile penetrating acts with another homosexual man because penile vaginal sex can never occur between two men. Because of the stigma associated with being a criminal, homosexual males are more likely to experience feelings of dread and vulnerability.
5. Fifth, because of the discriminatory nature of S.371, not only do homosexuals and their families experience discrimination, but so do all people who identify as homosexual.
6. Sixth, the clause can be used as a tool for police misconduct like unlawful imprisonment, questioning, extortion, harassment, forced sex, and bribery.
7. Seven, it keeps people from talking about their sexual orientation, which drives gay men and MSM and sexual minorities underground and undermines efforts to combat HIV/AIDS.
8. It's not a sexual assault because neither participant is in any danger. Sexual activity between adults who are both consenting to it and taking place in private settings is not illegal.
9. It specifically targets the LGBT population by making it illegal to openly express one's sexual orientation.
10. As a result, it is concluded and proposed that Section 377 be revised in order to safeguard the human rights of LGBT people, despite the fact that such individuals constitute a statistically insignificant minority in India.

CRITICAL ANALYSIS OF NAVTEJ SINGH JOHAR V. UNION OF INDIA

Navtej Singh Johar v. Union of India[10] is “a landmark judgment by the Apex Court and the initial, founding steps towards ameliorating the legal position of homosexual adults.” The Supreme Court of India, in September 2018, read down Section 377[11] of the Indian Penal Code while reversing the earlier decision of the Court in Suresh Kumar Koushal.[12] While doing so, the Court's five-judge bench acknowledged the equality of members of the LGBT community and the gay community to basic legal protections. Many people and organisations that had fought for years to ensure that homosexuals have the same rights as everyone else were able to finally celebrate the ruling.

 

The Court narrowly interpreted Section 377 to exclude private, consensual sexual activity between consenting adults. According to the study's authors, the concept of transformative constitutionalism, constitutional morality, and the recently recognised Right to Privacy were the three most essential ideas that formed and comprised the Court's reasoning and analysis. The antiquated ideas that Section 377 was based on crumbled under the scrutiny of these three parts of the Constitution. The Court's novel analysis of the problem posed by Section 377, which made it illegal for consenting adults to engage in homosexual conduct, and the Court's overall line of reasoning merits the closest scholarly examination. The Supreme Court's approach to this matter has been nothing short of revolutionary and transformative.

 

TRANSFORMATIVE CONSTITUTIONALISM

The Indian Constitution has been called a "living document" on numerous occasions. The Constitution is not only the supreme law of the land, but also an important piece of social history. The Constitution was intended to safeguard and advance the fundamental liberties of historically and systematically marginalised groups and classes of people. As a result of this fundamental concept, the Constitution had to have been aware of the preexisting conditions when it was enacted, but unlike the American Constitution, it choose to do something about them and set out to change society. It was an uneven society that worked toward equality rather than perpetuating the status quo. Transformative constitutionalism bases itself on the idea that the Constitution should serve a positive social reformation.[13]

 

When interpreting the Constitution, India's highest court takes transformational constitutionalism into account. In essence, this means that the Constitution seeks to alter society rather than strengthen the principles to which the majority already adheres. The Court in Navtej Singh Johar articulately embraced this line of thinking. The Constitution's values of justice, liberty, equality, and fraternity were articulated by the Court as it outlined the Constitution's underlying yearning to reform Indian society. This also implies that the Constitution can evolve over time and accommodate new requirements. In this way, the Constitution resembles a living, breathing organism rather than a static, static paper.

 

Regarding Article 377 of the IPC, the Court remarked that times have changed significantly since the IPC's enactment in 1860. The sexual minorities have been recognised and accepted in various legal spheres[14] however, “criminalisation of homosexual conduct under Section 377 creates nothing but a chilling effect. The principle of transformative constitutionalism is applied to ameliorate this condition.”

 

Comment- This Court's thinking in Navtej Singh Johar was heavily influenced by transformative constitutionalism. The question that remains, however, is how much of a change can be expected from just decriminalising gay behaviour; that is, from removing a negative barrier without securing any positive rights for the LGBT community. If the Navtej Singh Johar decision was meant to reform society through constitutional ideals, then it has accomplished nothing more than pave the way for the advancement of the homosexual community.

 

Even though it was the first step towards securing equality for the LGBT community, its significance cannot be overstated. It overturned the ruling in Suresh Kumar Koushal, in which the court had used the morality of the majority to defend the constitutionality of Section 377, and it did so by a 5-4 vote. On the other hand, Navtej Singh Johar hopes to alter the prevalent view of homosexuality in today's society. The extent to which the Constitution and the law are able to effect this revolutionary change, however, remains to be seen.

 

CONSTITUTIONAL MORALITY

The then Chief Justice of India, Dipak Mishra, had observed in his judgement that “constitutional morality was not restricted to the literal text and provisions of the Constitution as this concept was not about the ‘mere observance of the core principles of constitutionalism.”[15] This should pave the way for a more accepting and diverse society.

 

Our Constitution was written with the intention of providing citizens with unalienable rights in order to encourage an environment conducive to progress and prosperity. It was also hoped that the three branches of government—executive, legislative, and judicial—would uphold and operate in accordance with the principle of constitutional morality. This idea encourages these State institutions to preserve the diversity that makes up modern society.

 

The organs of state should make sure that majoritarian principles do not dominate other considerations when making policy decisions so as to avoid violating the principle of constitutional morality if an attempt is made to force a uniform, homogenous, and standardised ideology on the population.

 

In Government of NCT of Delhi v. Union of India and Others,[16] it was observed that “Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse.”[17]

 

“The courts have a duty to uphold the principles emanating from the constitution and adjudicate over the validity of a law. The courts also have a duty to not be influenced by the majoritarian view. When a penal provision, like Section 377 in this case, is challenged, notions of social morality and popular opinions which have no legal tenability, should not be allowed to trample over constitutional morality. Through this principle, the courts can decide in a just manner even if the group whose fundamental right is violated is fairly small. This is in contrast to the Suresh Kumar Koushal case where the court while upholding the constitutional validity of Section 377 stated that ...a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders...”[18]

 

The function of the courts is crucial in ensuring that constitutional morality takes precedence over societal morality in cases of a violation of a basic right. Members of the LGBT community have been ostracised by society for a long time due to the prominence of social morality. In the Suresh Kumar Koushal case, the court had violated the community's right to due process. These aspects of majority social morality are discriminatory towards the LGBT group and should be fixed, just as the Constitution sought to fix discrimination against the backward society. It is not acceptable to use concerns about social morality to justify the infringement of individual liberties.

 

THE RIGHT TO PRIVACY

The Indian jurisprudence on the Right to Privacy witnessed its zenith in 2017 when the Supreme Court of India through a nine-judge bench read Right to Privacy as a Fundamental Right within the ambit of Article 21 of the Constitution in Justice K S Puttawamy v. Union of India.[19] To its credit, the Court in Navtej Singh Johar accorded that case's guiding principles its full consideration. It acknowledged that a person's sexual orientation is a part of the person's autonomy. Having a sexual orientation is an integral and unchangeable component of a person's identity. Fundamentally, one's level of autonomy establishes his or her unique personality, and as such, it is a crucial component of human worth.

 

The LGBT community wants the legal recognition of the basic right to consensual companionship. This Right to Consensual Companionship has been acknowledged because it is widely acknowledged that healthy sexual relationships are crucial to individual and societal flourishing.[20] The South African Supreme Court has also noted that “the theory of privacy incorporates sexuality as well. In that Court’s opinion, privacy acknowledges both a Right to Private Intimacy and autonomy without any sort of interference.”[21]

 

While reversing the judgement in Suresh Kumar Koushal, the Indian Supreme Court reasoned that the principle outlined in Suresh Kumar Koushal is no longer applicable and cannot be used as a basis to deny the Right to Privacy in light of the subsequent interpretation of Right to Privacy under Article 21. One of the main goals of the Right to Privacy is to shield people from the disdain of the masses. It is irrelevant to the Right to Privacy whether or not someone agrees with you. The Supreme Court's decision in Navtej Singh Johar was a rebuke of an earlier one, Suresh Kumar Koushal, in which the justices had used widespread support as a justification for ignoring individual rights guaranteed by the Constitution. To deny Rights granted by the Constitution on the basis of a majority vote is unacceptable.

 

Since the nine-judge bench in the Puttaswamy ruling recognised sexual orientation as a personal trait, Section 377 of the Indian Penal Code infringes upon the personal freedom of a homosexual. The Court, unconcerned with popular or majority opinion, found that Section 377 violated the individual's guaranteed right to privacy.

 

The right to privacy, established as a basic right in the Puttaswamy verdict, has been used by the Supreme Court of India in a number of subsequent instances. The Apex Court in Joseph Shine while dealing with the issue of adultery and in Common Cause (A Registered Society) v. Union of India and Another[22]  while dealing with the issue of euthanasia, acknowledged and “enunciated the importance of an individual’s autonomy in the backdrop of the recently recognised right to privacy.”

Therefore, the growing recognition of the right to privacy leading to recognition of autonomy in an individual’s private sphere cannot accept an archaic law such as Section 377, which intrudes upon the private life of consenting homosexual individuals.

 

 

 

 

CONCLUSION

Constitutions are more than just guiding documents for government; they are also ethical oaths taken by a community's members to uphold certain values and to make certain promises to one another on the kind of society they hope to create. So, the way we manage ourselves as individuals and our relationships with others is inextricably bound up with the political form we select to rule our society. It's a matter of personal preference and political expression to choose whom or how I show my affection. Following Jawaharlal Nehru's quote in the court's verdict about words being'magical things,' one interpretation of the Constitution is as a city of words constructed on the promise expressed in its preamble to secure for its citizens Justice, Liberty, Equality, and Fraternity. Always keep in mind that these are the very qualities that legitimise the existence of our constitution.

 

“The campaigns for law reform are not merely for a right to have sex, but to be able to live a life without fear of arrest, detention and harassment. No country can defend its anti-sodomy laws on the basis of cultural, moral or religious arguments if they otherwise commit themselves to human rights. Decriminalisation of consensual sex between adults goes to the core of human rights and dignity. Anti-sodomy laws are a historical wrong that needs to be rectified.”

 

With the recent win in the Supreme Court, consenting gay behaviours have been decriminalised by the reading down of Section 377, marking a significant step forward not only for India but also for the global campaign against anti-sodomy legislation. Decriminalizing sexual activity between consenting adults in places like Hong Kong, South Africa, and Fiji demonstrates progressive attitudes toward human rights. We, as a society, must take the same action if we are to live up to our constitutional obligations. The Supreme Court of India has clearly indicated its aim of placing the ball in the court of parliament by taking a different stance than the Delhi High Court and overturning the HC's judgement.

 

Because of this, we conclude that the hypothesised lack of impact of gay behaviour on individual and societal health is also false. Partially legalising homosexuality in, has successfully affected the LGBT Activism and has brought a new wave of hope to the social, legal, and political environment of India, making the assumption that there will be no effect of legalisation of homosexuality in these spheres found to be non-convincing.

 

SUGGESTIONS

LEGAL MEASURES SUGGESTED

• Revision of IPC Section 375 is needed to ensure that all forms of sexual violence, including child sexual abuse, are dealt with severely. It's time for a law that protects everyone from sexual assault, whether they're single, in a relationship, or otherwise, regardless of their sexual orientation or marital status.
• If we want sexual minorities to have the same safety and access to rights that people of different races, religions, and ethnicities enjoy, we need to pass comprehensive civil rights laws. Suggested Constitutional Amendment to Add Sexual Orientation to List of Nondiscriminatory Characteristics
• There must be changes made to the police force. All levels of law enforcement should participate in bias-reduction training to ensure that officers treat members of sexual minorities with the same respect and compassion that they show to the general public. In addition, dealing with sexual minorities should be conducted openly.

SUGGESTION FOR GOVERNMENT BODIES

• The government should pass a law prohibiting discrimination on the basis of sexual orientation and gender identity in order to safeguard the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in all settings (including schools, workplaces, health care facilities, social clubs, and other public and private organisations).
• A person's sex, gender, or sexual orientation should not be changed through medical or psychiatric procedures without their informed, freely given, and legally binding agreement.
• o Transgender advisory committees, similar to those recently established by the governments of Tamil Nadu and Karnataka. Other countries should follow suit and implement policies such as providing gender-neutral public restrooms and having social workers raise awareness.
• LGBT youth and their parents will have access to gender sensitization and counselling programmes at a variety of schools.
• The Indian judicial system has a responsibility to protect and care for this marginalised group. It is the responsibility of the judiciary to ensure that homosexuals are not subjected to harassment on the basis of their sexual orientation, as this would constitute a violation of Articles 14, 15, and 21 of the Constitution.
• The government should make an effort to stop all forms of abuse against the LGBT community, including those perpetrated by law enforcement, criminals, and members of the family.

 

SUGGESTIONS FOR LGBT COMMUNITY

Ø  Despite the challenges, the LGBT community must keep up the battle for gender equality.

More seminars, workshops, and awareness drives should be organised by the LGBT community in partnership with the government and non-governmental organisations (NGOs) at the K-12 and tertiary levels.

Many LGBT people, it has been noted during trips to NGOs etc., drop out of school halfway through, do not receive a sufficient education, or are not serious about their academic pursuits. Many of them are doing regular jobs like barbering, fashion designing, and similar things. Although some people may see it as a quick method to cash in, not many people choose prostitution. All of this makes it harder to change people's beliefs, which in turn breeds prejudice, hostility, and rejection from the larger community.

 Overall, they need to improve their sense of worth and credibility so that their concerns are taken seriously and receive widespread support. A favourable legislature can only be expected if they raise political consciousness and send representatives to parliament. The fact remains, nevertheless, that neither the legislative nor the judiciary will back them up until and until they have the backing of society.

 

SUGGESTIONS FOR SOCIETY

Ø A sensible, open, contemplative, judicial, and unbiased approach is needed from society in regards to the minority community and homosexuality in particular. Research shows that the majority of people, especially the middle-aged and the elderly, are convinced that the legalisation of homosexuality will lead to an influx of homosexuals and a decline in societal morals.

 People need to realise that homosexuality is not a choice they make or a lifestyle they choose (unless in extremely rare circumstances where it has been chosen to unfairly benefit oneself or another). Those that exhibit such abnormal behaviour should be shown empathy and understanding because they are clearly not the norm. In this case, it's crucial to understand that their sexual orientation is likewise a gift from nature, and it can't be altered only by hanging out with or being related to a gay or lesbian person.

 

Nobody wants to make someone else's life more difficult than it has to be, so why would they encourage such people to take the path littered with thorns? If a homosexual's loved ones don't accept him or her, he or she will likely experience significant emotional distress. Some case studies observed during research revealed that people who come out as gay or lesbian still experience pain and suffering even after telling the world about their sexual orientation unless they are able to live their life to the fullest by accepting their sexuality or undergoing sex change surgery. The procedure itself is just too intricate, costly, and time-consuming. As a result, we ought to provide tolerance and acceptance to people notwithstanding their sexual orientation.

 

 So that they, too, can lead dignified lives, LGBT individuals require counselling, education, elevation, and motivation. Stakeholders have an obligation to integrate marginalised members of society. Therapists have an ethical obligation to tell their gay clients that their sexual orientation is normal, if aberrant. Furthermore, they have an obligation to provide guidance to the parents who seek them out in hopes of curing their "gay" child. The sexologist has an ethical and legal obligation to educate and empower gays to engage in safe sexual behaviours. Teachers at all levels have a moral and ethical need to instil in their students the qualities of empathy, respect for others, logical decision making, bravery, and self-assurance in the face of adversity in their lessons and lessons overall. Our police have a moral and legal obligation to protect innocent gays from being wrongfully detained and abused in accordance with the provisions of Section 377 of the Indian Penal Code. Organizations, MNCs, institutions, etc., must also embrace anti-discriminatory and zero-tolerance of harassment in HR policies towards gays, and their leaders must demonstrate empathy toward LGBT personnel. Employers must give LGBT workers the same opportunities as everyone else in the company. They should be treated with the same respect and dignity, given the same access to employment and workplace benefits, and given the same incentives and encouragement to work as everyone else. Homophobia, which is widespread in today's culture, must be eradicated for the sake of everyone. This includes those who are merely open about being gay.

 

 

With its decision in Navtej Singh Johar, India's highest court has taken a huge stride forward in creating a legal framework that upholds the Constitution of India's incorporationist and egalitarian values. Using the principles of transformative constitutionalism, it seeks to alter the way things are and the way people think, all while prioritising constitutional morality over the morality of the majority. The Court acknowledged the significance of the right to privacy and its critical role in protecting the autonomy of homosexual people engaged in private, consensual conduct.

 

In this document, the authors make an effort to provide a bird's-eye view of the many different court rulings that have been made regarding Section 377 of the IPC. We then discuss the three most fundamental principles—transformative constitutionalism, constitutional morality, and the widely recognised individual's Right to Privacy—that the Supreme Court of India has recently accepted in its reasoning in numerous landmark judgements.

 

 

The Court has taken a bold step toward its goal of creating a society in which members of the LGBT community enjoy all fundamental rights granted to them by the Constitution, on par with everyone else, by striking down the criminalization of private homosexual intercourse between two consenting adults under Section 377 of the IPC. However, much remains to be done constructively to ensure the safety of the LGBT community in India, which has long been subjected to systematic oppression and prejudice. Therefore, watering down Section 377 is merely the beginning of the road to full equality for the LGBT community. From the perspective of Navtej Singh Johar, the three branches of the Indian government and society still have a ways to go before the LGBT population in the country is treated with the respect, dignity, and sexual liberty it deserves.

 

---

[1] Ely, J.H.1980, Democracy and Distrust: A theory of Judicial Review, London: Harvard University Press.

[2] United States v. Carolene Products 304 U.S 144, 153, (1938)

[3] Anuj Garg V. Hotel Association of India & Ors., (2008) 3SCC 1

[4] Ibid.

[5] Naz, Direct and Indirect Discrimination should not be confused with direct and indirect t horizontal effect.

[6] Narain, Arvind.2004, Queer: Despised Sexualities, Law and Social Change. Bangalore: Books for Change.

[7] Roe v. Wade and Brown v. Board of Education , 344 U.S. 1 (1952).

[8] State of MP v. Baldeo, (1961) 1 SCR 970 at 989

[9] Jayalakshmi v. State, (2007) 4 MLJ 849

[10] Navtej Singh Johar v. Union ofIndia, (2018) 10 SCC 1.

[11] The Indian Penal Code, 1860, S. 377.

[12] Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., (2014) 1 SCC 1.

[13] State of Kerala and Anr. v. N.M. Thomas and Ors., AIR 1976 SC 490.

[14] National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438.

[15] Navtej Singh Johar v. Union ofIndia, (2018) 10 SCC 1.

[16] Government of NCT of Delhi v . Union of India and Ors., 2018 (8) SCALE 72.

[17] Ibid.

[18] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶43.

[19] Justice K S Puttawamy v. Union ofIndia, (2017) 10 SCC 1.

[20] Bowers v. Hardwick, 478 U.S. 186 (1986).

[21] National Coalition for Gay and Lesbian Equality and another v. Minister ofJustice and Ors., 1998 (12) BCLR 1517 (CC).

[22] Common Cause (A Registered Society) v. Union ofIndia and Anr., (2018) 5 SCC 1.