Part III of the Indian constitution primarily carries the common concept of human right. The international conventions and also the principles of natural justice also focuses on the facet of right to life with the whole of dignity and liberty. The fundamental rights are basic rights of the human. They’re considered as basic rights to live a perfect life.
Moreover Article 13 (2) says that ‘The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.’
So, consistent with the constitutional provisions, Section 377 infringe number of fundamental rights of the homosexual people. This article is all about that section of our country that fought for years and finally after a long, hard and tiring struggle got what they deserve from the law of the nation. They’re the homosexuals or the LGBT community. This article is all regarding homosexuality, difficulties faced by homosexuals by our society, rejections that they get everyday from their family for being what they’re.
The foremost aspect of this article is to acknowledge of you the exhausting and tiring journey of the human rights activists to decriminalize same sex relationships in our country that comes under SECTION 377 of IPC (The most notorious among them all) that was suppress down recently by the Supreme Court in 2018.
What is Section 377?
Section 377 refers to ‘unnatural offences’ and says 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 10 years, and
Meaning of Homosexuals and Problems Faced by Them
Homosexuality, sexual interest in and attraction to members of one’s own sex. The term gay is often used as a synonym for homosexual; female homosexuality is usually referred to as lesbianism. At completely different times and in several cultures, homosexual behaviour has been diversely approved of, tolerated, punished, and banned.
Homosexuality was’nt rare in ancient Greece and Rome, and also the relationships between adult and adolescent males especially became a chief focus of Western classicists in recent years. Judeo-Christian as well as Muslim cultures have typically perceived homosexual behaviour as sinful.
The subject has vulnerable to cause outright schisms in some denominations. Such harassments and punishments build them alone and aloof in the society. Lack of imparting and misunderstanding between parents and there homosexual children results in family conflict which ultimately ends up in family disruption. Not just this, loneliness makes them a drug addict too. Dependency to alcohol and drugs makes them more habitual then to the ordinary people according to the survey made in 2017.
The human right activists struggled over many years and finally ended up with a win in suppressing down the laws which stood against homosexuals, in the year 2018. Putting forward the glance of such journey.
Early Battles: The Taste of First Victory
One of the primary legal challenges to Section 377 came in 1994, once the NGO AIDS Bhedbhav Virodhi Andolan (ABVA)[footnoteRef:6] filed a petition for its repeal when Kiran Bedi, then the superintendent of Tihar Jail, refused to permit medical examiners to distribute condoms to male inmates. The repression of same-sex love was highlighted by the strident rightwing opposition to Deepa Mehta’s Fire, which showed two women abandoned by their husbands finding love and solace in one another, in 1998.
While ABVA petition was being dismissed in 2001, Naz Foundation filed the primary major case against Section 377 in December 2001 (Naz Foundation vs Govt of NCT of Delhi & Ors). A two-judge Delhi High Court Bench of Chief Justice B C Patel and Justice Badar Durrez Ahmed dismissed the case in 2004, which was termed as a mere academic challenge to the constitutionality of a legislative provision. A review petition too, was dismissed. [7: ]
The Naz Foundation did not stop here and went to the Supreme Court and appealed against the High Court’s decision to reject the petition for technical reasons. The Supreme Court decided that the Naz Foundation can file a PIL in this Case and referred the case back to the Delhi High Court to reconcile it on merit. As soon as the petition got its accepted, there were many who came out and supported the LGBT group boldly.
As the LGBTQI movement gained steam across India and several organisations such as Voices Against 377 and a specter of activists joined the battle. The Supreme Court ordered Delhi High Court to review the case. And after long battle Delhi High Court issued the judgment and quashed the 150 years old section, thereby legalizing consensual homosexual activities among adults. This was the first time when people fighting for LGBT group tasted their victory, but the happiness did’nt lasted for long. In 2013, the Supreme Court reverse the high court order and considered that the order was legally unsustainable.
On 11 December 2013, a bench of two-judge Supreme Court judges G S Singhvi and S J Mukhopadhaya accepted the appeal, recriminalizing gay sex. IPC 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”, the Bench said, and left it to Parliament to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”, if it so wished.
The verdict was criticised worldwide, led to widespread protests across India, and LGBTQI activists observed a “Global Day of Rage”After the review petitions filed by Naz Foundation, the Union government, and others in 2014 were revoke, the court in February 2016 referred a curative appeal to a five-judge Bench.
Criticism
Not only the normal public but also peoples who enjoy high status in society have gone to support Section 377 and criticize the LGBT group . They were all those who were clearly in support of the Section and against Homosexuality. Decriminalising the section may create a breach of peace in the society, was the statement said by P.P Malhotra[footnoteRef:10]. The law has been also criticized by several ministers, According to them, Supreme Court should not have changed the order of the Delhi High Court order that decriminalized consensual sex between the same gender. [10: ]
Although most of them were against them, then to the struggle and the fight didn’t stop, and soon they were going to get the cost for their fight.
The Final Push: Section 377 Declared Unconstitutional
Five people filed a new written petition in the Supreme Court to challenge the constitutionality of the Section in 2016. Navtej Singh Johar the dancer, Sunil Mehra a journalist, Ritu Dalmia a chef, Keshav Suri and Ayesha Kapur together filed the petition.
So far this case has been the first case in which any petitioner has prayed before the Court that the Section is against the constitution of India as it violates the right to sexual privacy, dignity, the right to discrimination and freedom of expression. The Supreme Court has decided to review the petition and criminalization of homosexual activity.
In the midst of all this, a Supreme Court ruling arrived in 2017 in which the court unanimously decided that the right to individual privacy is a fundamental right in the Constitution of India. The ruling also indicated that the right to privacy and the right to sexual orientation are the basis of the fundamental rights guaranteed by articles 14, 15 and 21 of the Constitution. This ruling gave hope to LGBT activists that the Court would soon bring the Section down as they believed the Section violated the article mentioned by the Court in the aforementioned judgment.
It was in 2018, when the hearing of the petition began to challenge the constitutional validity of the Section 377 with five judge constitutional bench comprising of Chief Justice Dipak Misra, Justice R.F. Nariman, Justice D.Y. Chandrachud , Justice Indu Malhotra and Justice A. M. Khanwilkar. Where it was urged that it is violative if article14,15,21of the Indian Constitution. The hearing lasted four days after which the Court reserved its verdict.
And the day finally came with a ruling when the Supreme Court reversed the 2013 Section 377 reinstatement ruling. The Court stated that the use of this Section of Indian Penal Code to criminalize homosexuality is now unconstitutional and henceforth a criminal act.
The Court also unanimously stated that the parts of the law relating to consensual sex between adults are unconstitutional. However, the other remaining parts of the Section 377 relating to sex with minors, non-consensual sex between adults and bestiality still remains in force.
Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional, was said by CJI Dipak Misra with the judgment[footnoteRef:11]. Justice Indu Malhotra said: history owes an apology to these people and their families. Homosexuality is the part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for [the] LGBT community.
Not so early, but not so late, after 157 years homosexuals have obtained what they deserve, a valid legality to their relationship in our country. The decriminalising of consensual sex between adults of the same gender has led India to join 125 nations where homosexuality is legal. This was the prize that LGBT activists have received for their struggle for seventeen years. Conclusion
In a historic ruling, the Supreme Court quashed the 2013 verdict and decriminalised consensual homosexuality. But the struggle to gain acceptance and change mindsets will be arduous. Five years after attracting global criticism for upholding the 157-year-old draconian law criminalized consensual homosexual sex, the Supreme Court on September 6 made a much-needed course correction and created history. It was easily one of the most progressive and beautifully articulated judicial pronouncements of contemporary times.
The harm of Section 377 was not just that it prohibited a form of intimate and personal choice but that it encoded a stereotypical morality which has deep-ranging social effects. As Justice Chandrachud put it, Section 377 “perpetuates a certain culture”, based on “homophobic attitudes” which make “it impossible for victims to access justice”.
The right not to be discriminated against on grounds of one’s sexual orientation is violated by the prejudicial stereotypes about the LGBTQ community fostered by Section 377. It is for this reason as well that Section 377 was read down by the judges
Peoples like us must understand that homosexuality is not an addiction or a mental state of a person but something innate and natural for a human being. But we must also agree that change in the society is a slow process and requires constant effort from those who wish to see change. The Supreme Court ruling has already laid the foundation to it. All we have to do is to raise awareness and cultivate empathy because ignorance is only the main reason for homophobia in people.
So we just need to put efforts for the right thing, and hope for a better and safe society with equal status given to all.
