HOMOSEXUALITY: NO LONGER A CRIME IN INDIA!

What is homosexuality?

Homosexuality, sexual interest is an attraction to members of one’s own sex. The term gay is frequently used as a synonym for the homosexual; female homosexuality is often referred to as lesbianism. At different times and in different cultures, homosexual behavior has been variously approved of, tolerated, punished, and banned.

Homosexuality was not uncommon in ancient Greece and Rome, and the relationships between adult and adolescent males, in particular, have become a chief focus of Western classicists in recent years. Judeo-Christian, as well as Muslim cultures, have generally perceived homosexual behavior as sinful. Many Jewish and Christian leaders, however, have gone to great lengths to make clear that it is the acts and not the individuals or even their “inclination” or “orientation” that their faiths prescribe.

Others—from factions within mainstream Protestantism to organizations of Reform rabbis—have advocated, on theological as well as social grounds, the full acceptance of homosexuals and their relationships. The topic has threatened to cause outright schisms in some denominations.[i]

Background of the legal battle in India:

The first step towards the law was taken by the Naz Foundation, an NGO, working to create awareness of HIV/AIDS and other sexual health issues. They filed a petition challenging the law in the Delhi High Court in 2001. New Delhi’s High Court decriminalized homosexuality among consenting adults in 2009, finding that applying its ban on “carnal intercourse against the order of nature” to consenting adults breached the rights to life, liberty, and equality enshrined in the country’s Constitution.

But the Supreme Court overturned the decision in 2012 while considering appeals from religious groups. In 2016, five petitions were filed in the Supreme Court by prominent LGBTQ activists to overturn the law. They claimed that Section 377 violated their sexual autonomy, privacy, and right to equality. The Court delivered the final judgment on 06.09.2108, Thursday/

Key Observations by the Supreme Court:

The five-judge bench of the SC led by CJI Dipak Misra decriminalized consensual gay sex unanimously in case of NAVTEJ SINGH JOHAR & ORS. V. UNION OF INDIA. The main observations made by the Court are:

Section 377 of IPC in so far as it criminalizes consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with an animal will, however, remain criminal. (The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.)
LGBT community possesses equal rights under the Constitution.
History owes an apology to members of the community for the delay in ensuring their rights,” said justice Indu Malhotra.
The primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in the literal sense.
The sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression.
“Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” the Chief Justice, Dipak Misra.
The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalized and is violative of Article 14.
Justice Rohinton Nariman says one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognized that homosexuality is not a mental disorder.
Bodily autonomy is individualistic. Expression of intimacy is part of a right to privacy.
Discrimination on the basis of sexual orientation in violation of freedom of speech and expression.

With these words and many more references, the Supreme Court overruled The judgment in Suresh K. Koushal & Anr. v. Naz Foundation & Ors.[ii] Homosexuality is not a crime in India anymore and it is not a mental disorder. The country must salute the efforts of Sunil Mehra, Ritu Dalmia, Aman Nath, Ayesha Kapur, and Navtej Singh and many unknown activists for their fights and the society should welcome the change which the Supreme Court has intended to bring.