On January 2018, the Supreme Court of India agreed to re-examine Section 377 of Indian Penal Code which criminalizes “carnal intercourse against the order of nature with any man, woman or animal” - widely interpreted to refer to homosexuality.
Section 377 reads-
“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”.
IPC declares homosexuality to be an unnatural offence. The provision under Section 377 is of the British colonial era 1860 which is not suitable the needs of this society where according to the data submitted to Supreme Court in 2012, 2.5 million gay people were recorded and we can imagine if this is the recorded figure than how many more LGBTQ people will be there. As homosexuality is a taboo in our society people are ashamed to discuss it in open than how people will disclose their identity.
The government vows to take care of its people, but how will it do if it does not recognizes its LGBTQ community? If the government is not giving these people their identity of who they are, how will it fulfill their needs? Next question that pops up is if they say we do not care.
But the time has come LGBTQ community will not sit back and is coming forward for their rights. The fundamental right in our Constitution guaranties right to freedom, right to equality, right to life and personal liberty which enlists with it right to live with human dignity and also right to privacy. So why not this community should be allowed all this?
There are twenty three countries in the world which lave legalized same sex marriage even England, which made that draconian law in 1860 in India changed its law than why should not India. The people who are against homosexuality will say it is against our societal values and customs.
The judgment of Delhi High Court in NAZ Foundation v. NCT of Delhi decriminalized homosexuality in 2009. The Delhi HC decriminalized it on the basis of 172nd law commission report seeing it to be discriminatory provision violating Article 14, 15, 21 of the constitution.
But in 2013 again, section 377 of IPC was put into full force by the Supreme Court in the case of Suresh Kumar Koushal v. NAZ Foundation. It was contended that if the legislature has decided not to delete s.377 and it is not for the Court to import the extra-ordinary moral values and thrust the same upon the society. The Supreme Court in the 2013 judgment observed that it was the responsibility of Parliament, not the judiciary, to change the law.
The Indian Supreme Court, however, in 2018 again agreed to reconsider the constitutional validity of Section 377 of the Indian Penal Code and also have issued a notice to the central government to put its stand on this issue. The Supreme Court said "A section of people or individuals who exercise their choice should never remain in a state of fear".
One of the factors behind this change of mood of the Supreme Court could be its recent judgment in the case of ‘Justice K. S. Puttaswamy (Retd.), and Anr. V/s Union of India and Ors.’ – popularly known as “Right to Privacy judgment” whereby the Apex Court declared freedom of sexual orientation a fundamental right. It was ruled that sexual orientation is covered under clauses in the Indian Constitution that relate to liberty, despite the Government claiming there was no legal right to privacy. The Supreme Court observed that “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.”
In order to give this Judgment its full effect it is now important to have a clear stand on Section 377.
The government has so far been reluctant to take a firm position on this issue - either before the Delhi High Court or the Supreme Court. In high court, home ministry and health ministry had taken contrary stands in the first round of litigation. The home ministry had insisted that Section 377 be retained to deal with cases of unnatural acts carried out against children and bestiality against animals. It had also argued that there were no statistics to show that the law was misused to victimise choices of the LGBT community. However, health ministry had argued that Section 377 must be scrapped.