The Decriminalization of Homosexuality

By Tanvi Mangla SAP ID- 500092206

and Neeraj Madhu SAP ID- 500095705

Homosexuality is associated with sexual interest in and attraction to people of one's own sex. It is
a sexual orientation, not a gender identity like male, female, or non-binary. People who are
homosexual may identify themselves as gay, lesbian, LGBTQ, queer, or a variety of other labels.
There is no single method to feel same-sex attraction. Many LGBTQ individuals develop
feelings for people of the same sex throughout their adolescence. However, it may take some
time to discover what you're most drawn to or to feel comfortable admitting it to yourself and
others. At various stages in their life, people experience sexual, romantic, and emotional
sentiments toward another person in various ways. The term homosexuality is still used in a
neutral context, particularly in technical and formal situations. Outside of such circumstances,
the term might be interpreted as reflecting negative preconceptions and antiquated professional
understandings of homosexuality as a psychological illness. Homosexual behavior has been
recognized, tolerated, punished, and forbidden at various times and in different cultures.
Homosexuality was known in ancient Greece and Rome, and in recent years, the
relationship between adult and adolescent boys have become a major concern of Western
classicists. Homosexual behavior has always been seen as wicked in both Judeo-Christian and
Muslim civilizations. Many Jewish and Christian leaders, on the other hand, have gone to
considerable efforts to emphasize that their faiths forbid deeds rather than persons or even their
"inclination" or "orientation." From ancient times to the present, homosexuality has been a topic
of debate in India. Hindu literature has adopted a variety of stances on gay characters and
themes. Homosexuality has been popular throughout the Indian subcontinent throughout history,
and homosexuals were not necessarily deemed inferior in any sense until the 18th century,
during British colonial rule. Male homosexual intercourse, on the other hand, was criminal by
flogging or stoning for a Muslim under the Islamic rule of Fatawa 'Alamgiri under the Mughal
Empire. On September 6, 2018, a five-judge constitutional bench of India's Supreme Court
invalidated a portion of Section 377 of the Indian Penal Code, making homosexuality lawful in
India. One judge said the groundbreaking ruling, which overturned a colonial-era statute that
made homosexual intercourse criminal by up to ten years in jail, will "pave the way for a brighter
future."

Consensual private sexual relations between adults are criminalized under Section 377 of the
Indian Penal Code. It went into effect in 1862. Lawyers have claimed that Section 377 inspired
the terrible Criminal Tribes Act of 1871, which labelled a variety of vulnerable population
groups, including transgenders, as "innately criminal" before being overturned. According to the
penal provision. "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,".
Section 377 criminalizes a subset of the population for being a sexual minority. A cross-section
of the population has petitioned the Supreme Court in opposition to the punitive clause. They are
not just demanding protection as sexual minority, but also acknowledgement of features shared
by all humans. They contend that the right to sexuality, sexual autonomy, and the choice to select
a sexual partner are the foundations of human dignity. Section 377 has a "chilling impact" on the
rights to equality, liberty, life, dignity, and non-discrimination on the basis of gender. Once the
Constitution Bench rules that homosexuality is an order of nature and upholds the fundamental
right to sexuality, sexual orientation, and choice of same-sex partners, the door is open for
individuals to approach the court in the future on larger issues such as legalizing same-sex
marriages, inheritance, adoption, and workplace discrimination.

Section 377 of the IPC defines consensual sexual intercourse between individuals of the same
sex as an "unnatural crime" that is "against the order of nature." It called for a ten-year sentence
of incarceration. The provision is a Victorian-era statute that has lasted until the twenty-first
century. Surprisingly, homosexuality has never been prosecuted or decriminalized in any of the
world's 123 nations. At the moment, 57 nations actively outlaw same-sex relationships. The
Delhi High Court heard a challenge against the legality of Article 377 under Articles 14, 15, 19,
and 21. Section 377, according to the Foundation, shows an archaic notion of the purpose of sex,
namely reproduction, and has no place in a modern society. Furthermore, the provision had been
weaponized by the police, impeding attempts to prevent the spread of HIV/AIDS. The
Foundation mentioned an incident in Lucknow in 2001 in which HIV prevention workers who
were giving condoms to homosexual males were detained on suspicion of conspiracy to commit
an offence. The Naz Foundation also claimed that the clause was being abused to penalize
consenting sex activities that were not peon-vaginal. The Delhi High Court held in 2009 that
Section 377 cannot be used to penalize sex between two consenting adults because it violates the
right to privacy and personal liberty guaranteed by Article 21 of the Constitution. The Court
ruled that categorizing and targeting homosexuals breaches the equal protection principle
guaranteed by Article 14 of the Constitution. As a result, Section 377 violates human dignity,
which is at the essence of the Indian Constitution. Several groups and individuals petitioned the
Supreme Court to overturn the Delhi High Court's decision. They contended that: the right to
privacy does not include the freedom to commit any crime; decriminalizing homosexuality will
harm the institution of marriage and encourage young people to engage in homosexual practices.
On September 6, 2018, a five-judge Bench partially overturned Section 377 of the Indian Penal
Code, decriminalizing same-sex relationships between consenting adults. LGBT people are now
legally permitted to engage in consensual intercourse. The Court has maintained Section 377
rules that make non-consensual or sexual actions on animals illegal. In reading down Section
377, the four decisions uniformly noted basic rights breaches. They discovered that Section 377
discriminates against people based on their sexual orientation and/or gender identity, which
violates Articles 14 and 15 of the Constitution. Furthermore, they decided that Section 377
infringes Article 21's rights to life, dignity, and personal autonomy. Finally, they discovered that
it impedes an LGBT person's capacity to fully realize their identity by infringing Article 19(1)
(a)'s right to freedom of expression.

Navtej Singh Johar v. Union of India is a well-known Supreme Court of India decision that
clarifies the legal standing of homosexuals. In September 2018, the Supreme Court struck down
Section 377 of the Indian Penal Code, 1860, overturning its previous judgement in Suresh Kumar
Koushal & v. Naz Foundation and recognizing the LGBT community's Fundamental Rights. The
decision was a cause for jubilation for those who had been fighting for equal rights for gays since
the age of a coon. Sexual intercourse by same-sex couples was prohibited in the West, both in
Judaism and Christianity, since the charges connected to them were judged by ecclesiastical
tribunals (laws governing the affairs of the Christian Church). As a result of Henry VIII's rupture
with the Roman Catholic Church, the Buggery Act of 1533 (Section 377) was enacted, outlawing
and criminalizing anal penetration, bestiality, and homosexuality (in a broader sense). This
legislation, drafted by Thomas Macaulay, defines 'buggery' as an unnatural sexual act committed
against the will of men and God. According to Macaulay's initial proposal, anybody who touched
or was touched (with agreement) by any person or animal with the intent of gratifying unnatural
passion would be fined and punished with imprisonment that might last up to 14 years and could
not be less than 2 years (Article 361). Anyone who touched another person without that person's
free agreement for the same above-mentioned purpose would be fined and punished with
imprisonment ranging from life to not less than seven years (Article 362). The Indian Law
Commission found that the Draft Penal Code was adequately comprehensive after many
examinations. In 1851, the updated copy was transmitted to the Supreme Court and Sudder Court
Judges in Calcutta, and the Committee of Sir Barnes Peacock eventually sent the text of Section
377 for enactment. After a long 150 years, B. P. Jeevan Reddy, J's Law Commission Report of
2000 (172nd Report) recommended the deletion of Section 377, as a result of changes made in
preceding sections clarifying that anal sex would not be penalized in the presence of consent,
regardless of being same-sex or otherwise. Outside of the courts, the fight for LGBT rights had
already begun, with numerous groups seeking to raise awareness about the high prevalence of
HIV/AIDS among LGBT people, as well as the prejudice encountered by HIV/AIDS patients,
and owing to the stigma associated with Section 377. Despite the fact that applications against
the Section were submitted as early as the early 1990s, they were all dismissed. The first petition
was eventually considered as a matter of public interest by the Delhi High Court in 2006, leading
to the historic Naz Foundation case. Our Constitution is a magnificent social and revolutionary
text that aims to change mediaeval Indian society into an equal democracy. Our courts have often
recognized that in a society undergoing fast socioeconomic changes, a static judicial
interpretation of the Constitution would only hamper its spirit, i.e., our Constitution must be able
to alter and adapt to the changes brought about in society. This is the idea behind
transformational constitutionalism. For a long time, our Indian society has been through
continual progressive development. Following the NALSA v. Union of India decision, sexual
minorities were welcomed and given space. However, carnal intercourse between same-sex
persons remained prohibited under Section 377 IPC, exerting a chilling impact on sexual
freedom. Many recent judgements address the issue of freedom of choice of mate, holding that a
person of a specific age and aptitude has the right to choose his or her life partner. In Shafin
Jahan, the court ruled that the legal manifestation of choice is the acceptance of one's own
identity. Individuality will be destroyed if such expression is restricted based on notional societal
standards. Societal morality has their place, but they should never take precedence over
constitutionally given freedom. For the LGBT community, it has been so long that it can no
longer bear the humiliations of denial. Consensual sexual behaviors between the same sexes are
criminalized, undermining the constitutionally provided liberty and equality. The common
source of contention is that the allowed sexual conduct between two adults differs when the two
persons are of the same sex. The assertion is based on what is known as social standardization.
Such a claim disregards the inherent individual orientation and the right to a decent existence.
Constitutional morality derives from the standards and conscience of the Constitution, and every
behavior established must be in accordance with the constitutional conditions in order to be
justified. This criterion of constitutional justice is under the purview of constitutional morality.
The three institutions of the state have traditionally been exhorted to preserve a diverse social
fabric and to combat majoritarianism. Any attempt to impose a unified and consistent philosophy
on society will thus violate the notion of constitutional morality. Popular opinion at the time
cannot be equated with constitutional morality. If the entire society, or even a portion of it,
aspires or desires something different for themselves, they are completely fit to have that
freedom to be different, given that it remains within the legal framework and is supplied, if not
promoted, with an atmosphere to maintain it. Thus, rather than community morality, the courts
must be governed by the notion of constitutional morality. Prior to the establishment of the
Constituent Assembly, the founding fathers of the Constitution adopted an inclusive Constitution
with provisions that allowed and sometimes directed the State to take actions to eliminate
discrimination against the backward and vulnerable sections of society by the so-called upper
caste. When a biological manifestation is hampered by legislation, an individual's natural and
constitutional right is compromised. Here is where the essence of dignity speaks for itself, and it
is our constitutional obligation to enable an individual to behave, conduct, and express
himself/herself as he/she sees fit. In the national domain, dignity is frequently seen as a key part
of Article 21 of the Constitution, but internationally, it was designated as a basic right with the
establishment of the UDHR (Universal Declaration of Human Rights). Following the
Puttaswamy decision, the challenges to Section 377 IPC have been stronger than ever. In the
aforementioned ruling, the Bench found that sexual orientation is a component of the right to
privacy, which is a basic right under the Indian Constitution. Individual autonomy occupies a
large place in the compartment of privacy and is a manifestation of self-determination, which
also encompasses sexual orientation and identity. As with the constitutional structure, these do
not allow any intervention as long as it does not violate decency or morals (constitutional
morality). Individuals have sovereignty over their bodies under the autonomy concept. Anyone
can give it to someone else, and their intimacy is entirely voluntary. Individuals have the right to
union under our Constitution, just as they have the right to privacy. The term "union" refers to
companionship in all of its forms, including physical, mental, sexual, and emotional friendship.
In this instance, the LGBT community was fighting for the achievement of this fundamental
right to friendship. One of the key aspects of the right to life is the right to health and access to
healthcare. Because of a shortage of safe locations to engage in sex, LGBTQ people are more
likely to get HIV than heterosexuals. They are therefore discouraged from getting medical
assistance because they are afraid of being 'exposed' and hence penalized. Although the LGBT
community adapts to the stigmatization, the pattern of prejudice creates psychological pain,
especially when they conceal or deny their identity. It is worth noting here that the Mental
Healthcare Act of 2017 guarantees the right to equal access to mental healthcare, free of
discrimination based on "sexual orientation." In other words, Section 377 criminalizes LGBT
people, preventing them from accessing healthcare facilities, yet the Mental Healthcare Act
guarantees them the right to get mental health treatment without discrimination, including on the
basis of ‘sexual orientation.'

Our Constitution is a living, organic document that can adapt to society's changing needs and
desires. The courts must ensure that the rights of a distinct class of people, or even a minority
group, are not jeopardized and that their fundamental rights are protected. The basic goal of
constitutional democracy is to reform society in a progressive and inclusive manner. The notion
of constitutional morality is based on variety, and it encourages the state to protect the society's
varied nature by preventing the majority from usurping the rights of minority. The right to live
with dignity is a fundamental human right without which all other rights are worthless. An
individual has no control over who he or she is attracted to. Any discrimination based on one's
sexual orientation would be a violation of one's right to free speech. The authors of our
Constitution would never have meant that basic rights be extended just for the advantage of the
majority, and the reasoning in Suresh Koushal is thus flawed. A careful assessment of Section
377 IPC demonstrates that the approved categorization has no rational relationship with other
parts of the Code (Section 375 IPC) and the POCSO Act already penalizes carnal intercourse
without permission, thereby breaching Article 14. Section 377 of the IPC fails to discriminate
between non-consenting and consensual sexual actions, demonstrating a lack of reasonable
linkage once more. A careful assessment of Section 377 IPC reveals that it is an unjustified
limitation, and societal morality cannot be regarded as an acceptable foundation for restricting
the basic rights of the LGBTQ community, therefore breaching Article 19(1)(a) of the
Constitution. As a result, the judgement in Suresh Koushal is reversed.

In the case of Navtej Singh Johar, the Supreme Court of India clearly took a big step toward a
judicial system that enforces the equalitarian ideals of the Indian Constitution. It seeks to alter
society views and the existing quo through transformational constitutionalism, which elevates
constitutional morality above the majority's societal morality. History owes them an apology for
the long delay in redressing their humiliation and ostracism. However, the issue remains whether
just decriminalizing gay behavior can reform society. If societal reform was the goal of this
decision, it can only be regarded as a first step toward bettering the situation of our LGBT
community. Law and government must work together to ensure equal protection and equal
opportunities in all of its forms. Nariman J. finished his ruling by instructing the Union to take
all necessary steps to publicize the decision and, as a result, erase the stigma that the LGBT
community faces in society. He also requested that the government and police officers treat him
favorably