HOMOSEXUALITY IN INDIA

The Hindu ,9 December, Page 1 Report

Larger bench to decide on Sec 377

-The SC referred to a larger Bench a writ petition filed by five gays and lesbian members of the LGBT community to strike down the colonial Sec. 377 in the Indian Penal Code of 1860, which criminalises homosexuality.

-A three-judge Bench decided to revisit a December 2013 verdict of the SC in the Suresh Kumar Kaushal versus Naz Foundation,  which dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation.

-'Rights atrophied' - The Bench said a section of people cannot live in a fear of law which atrophies their right to follow their natural sexual inclination.

-It said societal morality changes with time and law should change pace with life.

-While the Court noted that Sec 377 punishes carnal intercourse against the order of nature, it added, "The determination of order of nature is not a common phenomenon. Individual autonomy and individual natural inclination cannot be atrophied unless restriction are determined as reasonable.

-The court observed that what is natural for one may not be natural for other, but the confines of low cannot trample on or curtail the inherent rights embedded with an individual under Art.21 (right to life) of the Constitution.

-Sec 377 is not a reasonable restriction on the fundamental right to choice.

-'Part of privacy' : The Court agreed that both decisions emphasising transgender identity in the NALSA case and the observations made by nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warrant a re-look into its dismissive verdict in the Naz case.

- But initially the Bench seemed reluctant , saying a five judge Bench is already considering a curative petition of Naz.

-Abuse of law cannot be the basis- The Court ,at one point, even observed that a provision cannot become unconstitutional purely because it is abused.

-The petition said that"A right to  sexuality, sexual autonomy and freedom to choose a sexual partners forms the cornerstone of human dignity which is protected under Article 21.

-Paradigm shift : The order reveals a paradigm shift in the apex Court's views. A Review Bench of the SC , in January 2014 had agreed with the December 11, 2013 verdict refusing to strike down Sec 377 of IPC. The 2013 verdict had,instead, set aside the historic and globally accepted verdict of Delhi Court.

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Background

-There is colonial (from British era) Sec 377 in Indian Penal Code of 1860 which criminalises homosexuality.

- Against this Section there was a petition filed by Naz Foundation [NGO which work for the rights of LGBT (Lesbian, Gays,Bisexual ,Transgender) community ] to struck it down this Section.

-On December, 2013,in Suresh Kumar Kaushal versus Naz Foundation , the Delhi HC decided in a historic judgement that Sec 377 should be struck down and thereby decriminalised homosexuality.

-This judgement was binding on other High Courts also.

-Then appeal was filed in SC. On December 11, Supreme Court took a paradigm shift and reversed the decision of the Delhi HC by seting aside it and criminalises the Sec 377 again.

-Then the matter went up to the parliament where Mr.Shashi Tharor tried to raise it but shut down.

-Now the case again come before the SC as Curative Petition  ( where the aggrieved party entitled to any relief against the final Judgement of SC , after dismissal of the review petition ) was filed by five gays and lesbian members of the LGBT community.

Features of the judgement of SC

1) Progressive Vs Popular view

-While giving decision on Naz Foundation case the HC took the historic and progressive view. But SC reversed it by taking popular view of India and made Sec 377 criminalise again.

2)Negligible population will be affected

-While giving decision SC observed that there are negligible part of population who belong to LGBT community.

-Then also is it fair by saying that they are negligible in number and robbing their right.

3)Right atrophied

-The Bench while giving their judgement observed "people cannot live in fear of law which atrophies their right to follow their natural sexual inclination "

- But still went against it.

4)Societal morality changes with time and law should change pace with time

-People thinking changes with time and law should change itself with time .Example :(i) Before Sati was not considered crime, it was part of our customs. But now there is Sati(Prohibition) Act.(ii)Taking dowry was and also now is a custom. But now there is Act which is Dowry Prohibition Act.

- In both the above cases the law is made according to the change in people morality . So why not now?

5)Carnal intercourse against the natural order

-The court observed that the intercourse between the same sexual is against the natural order.

-Which implies that except for vanilla sex any other kind of sexual will be considered against the law . Therefore Sec 377 is against the rights of straight people as well.

7)Article 21

-Court observed that what natural to one may not be natural to another. So that is how it effects the inherent right to life given under Art.21.

- But what about right to choice given under Article 21 to the individuals.

7)Sec 377 is not reasonable restriction on fundamental right to choice (Art.21 )

-Court observed that Sec 377 is not a reasonable restriction on the fundamental right to choice given under Article 21.

- But treats it like a reasonable restriction.

8)Part of privacy

-Art.21 gives the person the right to privacy which is given by nine-judge Bench in 2017.

- NALSA case which gives 'gender identity ' to the third gender.

-This judgement of SC in Naz Foundation is not only curtails person's right to privacy but also do not give the gays and lesbians a right as third gender.It is against both the judgements.

9)Abuse of law cannot be the basis

-The SC while giving the judgement even observed that the provision cannot become unconstitutional purely because it is abused of law.

10)Right to sexuality should be the cornerstone of human dignity

-Everyone should be given right of choice of their sexual orientation,  sexuality, sexual autonomy and freedom to choose their sexual partners.

CONCLUSION

-A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. So far, more than two dozen countries have enacted national laws allowing gays and lesbians to marry, mostly in Europe (including England )  and in America.

- So as we can see that even England in 2013 allowed same sex marriage from where we got this Section 377 in first place & India still has this colonial rule which criminalises homosexuality.

- We can only hope that this curative petition which is going to the five judge Bench will give decision in progressive manner and hence decriminalised homosexuality.