Introduction

Since the ancient times, India has been the land of the most diverse demography possible. Individuals of various skin colors, cultures, religions, race, etc. have thrived in India since times immemorial. One such community which has always been a part of the society is the LGBTQ community that is the Lesbians, Gays, Bisexuals, Transgenders and Queers or the community of alternative sexual identities which is opposed to or different from the culturally and socially dominant sexual identities. The ancient Indian texts convey that the LGBTQ community had a relatively respectful position in the ancient Indian society. With the advent of the medieval times and the colonization of the country, the status of the LGBTQ community began degrading. Western influence led to the growth of adverse sentiments towards the LGBTQ and the introduction of certain draconian laws against the community. Moreover, the further lack of recognition by the law and society pushed the community into oblivion. Even after achieving independence from the British rule in 1947, such laws continued to a part of the Indian legal system. However in the current century, the Indian courts have propounded certain progressive judgments which have been instrumental in granting the community their fundamental rights.

Laws on Homosexuality: The British Era

The tolerance and acceptance towards homosexuality took a massive downfall with the advent of the British rule in India. It has been observed that in the seventy one countries where homosexual relations are illegal, more than half of it are previous British colonies.[1] Unlike in the Indian subcontinent, the strict Victorian laws prohibited homosexuality as it held that the sole purpose of any sexual activity was merely procreation and not pleasure.[2] In India, homophobia strengthened its roots after the stringent Victorian era laws clashed with the ancient and complex local cultural attitudes towards homosexuality.[3] “After the advent of British empire in India, a massive change in the attitude of the Indian society towards homosexuality was observed. From 1860 onwards, the British empire in all its colonies started to formulate such penal codes and common laws which criminalized homosexual relations.”[4]

The non-recognition of consent under Section 377[5] left enough scope for the persecution of the community on the hands of the British authorities. Even after the independence of India in 1947, the provision was retained. “Section 377[6] became a part of the range of laws which were left by the British colonialists as a part of their legacy of repressive laws. Hence, it is the irony of the highest degree that the Britishers did away which the regressive laws on homosexuality much before us in the year 1967”.[7]

Section 377 in the Independent India: Pre 1994 Era

Since the independence in 1947, Section 377[8] had been always been under the public glare for a variety of reasons, by some for its regressive nature and by the other for its so-called role in maintaining the decorum and culture of the Indian society. It is interesting to note that since independence, conviction rate under Section 377[9] has been minuscule.[10] Rather, it has been used as a weapon for the harassment of the community and as a way of threatening them for extracting money. Though in an extremely suppressed manner, the voices against the provision were raised now and then. Queer Activism got popular in India in the 1970s.

Fight Against Section 377: “Naz Foundation v Government of NCT of Delhi”

Following 1994, the Naz Foundation (Trust) India filed a suit in the Delhi High Court contesting Section 377’s legality.[11] “The petition was dismissed by the Delhi High Court on the grounds that the petitioners lacked legal standing in the case.[12] The Naz Foundation subsequently brought the case to the SC, where it was determined that the Naz Foundation did indeed have standing to file a PIL in this instance, and the case was remanded to the High Court of Delhi..”[13] “In 2006, the National AIDS Control Organization filed an affidavit stating that the implementation of Section 377[14] meant the undue violation of the fundamental rights of the LGBT community”.[15] “Around the same time, ‘Voices Against 377’ which is a Delhi based coalition of LGBT people and women and human rights activists also intervened into the matter.”[16]

“Upon hearing both parties’ evidence, the Delhi High Court ruled in Naz Foundation v Government of NCT of Delhi that Section 377 of the Indian Penal Code, inasmuch as it criminalizes consensual homosexual acts between adults, is in violation of Articles 14, 15, and 21 of the Constitution.”[17]. The judgment was significant as it granted the homosexuals their rightful place in the society and left no scope for any further unnecessary litigation on the issue.[18] The High Court making references to the highest international standards of equality brought in much appreciation from all quarters of the world and also motivated other countries to take similar steps.[19]

The Fight After 2013: “Navtej Singh Johar vs Union of India”

The retrograde reversal of the judgment in Naz Foundation case[20] created much uproar ultimately leading to the demand of reconsideration of the decision before a larger bench. “Mr Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Keshav Suri, and Ayesha Kapur filed a new writ suit in 2016 disputing the legality of Section 377.”[21] “Meanwhile in 2017, a 9 judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India[22] Article 21 of India’s Constitution, 1950, states that the right to privacy is inextricably linked to the right to life and personal liberty. The right to privacy and the protection of sexual orientation are at the core of fundamental rights under Article 14, Article 15, and Article 21 of the Indian Constitution of 1950, according to J Chandrachud.”[23]. This judgment laid down the jurisprudential basis of the Navtej Singh Johar case[24] and also brought in much relief for the LGBTQ community.

“The hearing of the writ petition filed in 2016 began in 2018. Yet again the arguments of the petitioners were centered around Article 14, 15 and 21 of the Constitution. Section 377 as per the petitioner lacked the ‘intelligible differentia’ which is essential for proving constitutionality under Article 14”[25]. They contended that the provision is opposed to Article 15[26] as it restricts the homosexuals from being open and expressive about their sexuality[27] Section 377 of the IPC, 1860 clearly bereft the homosexuals from these rights.[28] “The petitioners also raised the concern that as an implication of the draconian Section 377[29] the homosexuals are largely unable to get proper medical care for themselves in case of sexually transmitted diseases”. “Meanwhile, all arguments of the respondents were centered around the contention that homosexuality was never a part of the Indian society and is opposed to its culture and decorum which is why such a piece of law is not unconstitutional”.[30] The respondents elaborated that it was also essential to criminalize consensual homosexual sex as consent can also be obtained using fraudulent ways.[31] “After examining the merits of the arguments made, the five judge bench in the present case of Navtej Singh Johar and Ors v Union of India[32]unanimously held that Section 377[33] is unconstitutional to the extent that it prohibits consensual sex between two homosexuals. Being the judgment pronounced by a 5 judge bench, it became a binding precedent for the courts in the Indian territory”[34].

This landmark judgment not only reinstated the rightful position of the LGBTQ community in the society but also elaborated on certain essential aspects of Constitutional jurisprudence mainly ‘Transformative Constitutionalism’ and ‘Constitutional morality’ which became a guiding light for future cases. ‘Transformative Constitutionalism’ is the ability of the constitution to adapt and transform itself as per the current times[35] and ‘Constitutional morality’ means the interpretation of the constitution and the laws of the country in consonance with its basic and core principles.[36] These principle puts the duty on the judiciary to uphold the supremacy of the Constitution.[37]

Conclusion

The landmark case of “Navtej Singh Johar v Union of India”[38]in its true sense ended a battle of rights and existence for the LGBTQ community which started in the courts way back in 1994. No doubt, the decision of the aforesaid case is a huge win for the community but it cannot be said that the it is all now a cakewalk for them. The mindset of the current society is unlike the ancient and medieval India where homosexuality was not looked down upon but was an accepted part of the society. However with the judgment, a large scale awareness on homosexuality has been spread which has definitely enabled the community to take a stand for themselves. Moreover, same sex marriages have not been yet recognized in India which means that though the homosexual couples might live together but they cannot marry which implies lack of rights on their partner’s properties, assets, right to adoption, etc. unlike the heterosexual couples. Much recently on 12^th June, 2020, the Uttarakhand High Court explicitly recognized the ideas of live-in relationships and cohabitation for the homosexuals despite the legal non-existence of same sex marriages.[39] Such petitions and judgments make it clear that in the near future it is very much possible that the same sex marriages shall get recognition from the law of the land. Therefore, it won’t be wrong to remark that even after the striking down of Section 377,[40] much is left to be done so that homosexuals are able to lead a life like any other heterosexual couple.

 

 

 

[1]Misha Ketchell , “How Britain’s colonial legacy still affects LGBT politics around the world”, The Conversation ( October 01, 2021 , 05:43 pm ) https://theconversation.com/how-britains-colonial-legacy-still-affects-lgbt-politics-around-the-world-95799

[2] Enze Hand and Joseph O’ Mahoney, “British Colonialism and the Criminalization of Homosexuality”, 27 Camb. Rev. Int. Aff. 268-288 (2014).

[3]Ben Westcott , “The homophobic legacy of the British Empire”, CNN World (October 02, 2021 , 09:43 pm) https://edition.cnn.com/2018/09/11/asia/british-empire-lgbt-rights-section-377-intl/index.html

[4]Ibid.

[5]Ibid.

[6]Ibid.

[7]Chaitanya Kediyal,”Tracing the History of Section 377 of IPC”, Factly (October 03, 2021, 11:55 pm) https://factly.in/tracing-the-history-of-ipc-section-377/

[8]Supra note 16, pg 3.

[9]Supra note 16, pg 3.

[10]Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals”, 41 EPW 4815-4823 (2006).

[11]Supra note 27, pg 4.

[12]Asmita Sahay,”Naz Foundation vs Government of NCT of Delhi and Ors”,Law Times Journal (October 13, 2021, 10:29 am) http://lawtimesjournal.in/naz-foundation-vs-government-of-nct-of-delhi-ors/

[13]Ibid.

[14]Supra note 27, pg 4.

[15]Naz Foundation v Government of NCT of Delhi, (2009) 111 DRJ 1 DB,pg 9.

[16]Id. pg 11.

[17] Ibid.

[18]Supra note 30,pg 4.

[19]Supra note 30,pg 4.

[20]Supra note 44,pg 5.

[21]The Indian Penal Code, 1860.\

[22](2017) 10 SCC 1.

[23]Ibid.

[24]Supra note 44, pg 5.

[25]The Constitution of India,1950.

[26]Ibid.

[27]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 6.

[28]Supra note 56, pg 6.

[29]The Indian Penal Code,1860.

[30]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 85.

[31]Ibid.

[32]Supra note 56, pg 5.

[33] IPC,1860

[34] Supra 33.

[35]Sakshi Tomar, “Case Comment: Navtej Singh Johar and Ors v Union of India”, Pen Acclaims ( October 14^th , 2021 , 01:22 pm) http://www.penacclaims.com/wp-content/uploads/2019/02/Sakshi-Tomar.pdf

[36]Shelal Lodhi Rajput, “Constitutional Law:Doctrine of Constitutional Morality”, LexLife India ( October 24^th , 2021, 01:25 pm) https://lexlife.in/2020/05/14/constitutional-law-doctrine-of-constitutional-morality/

[37]Ibid.

[38]Supra note 56, pg 6.

[39]Aishwaraya Iyer, “Same-sex couples have got a right to live together, even if not competent to enter into wedlock: Uttarakhand HC”, Bar and Bench (October 24, 2021,07:35 pm) https://www.barandbench.com/news/litigation/same-sex-couples-have-got-a-right-to-live-together-even-if-not-competent-to-enter-into-wedlock-uttarakhand-hc

[40]The Indian Penal Code, 1860