Abstract 

The decriminalization of Homosexuality represents a critical milestone in the pursuit of human rights and equality. This abstract explores the legal interventions instrumental in achieving this significant social transformation. Beginning with an overview of historical contexts, including the evolution of discriminatory laws and societal attitudes towards LGBTQ+ individuals, it examines the pivotal role of legal challenges in dismantling anti-homosexuality statutes worldwide. Through a comparative analysis of landmark court cases and legislative reforms, this highlights the diverse strategies employed by advocates, including constitutional arguments, international human rights frameworks, and grassroots activism. Furthermore, it elucidates the complex interplay between legal reform, public discourse, and cultural shifts, emphasizing the importance of comprehensive approaches that address systemic discrimination and promote inclusive policies. By synthesizing key findings and emerging trends, this abstract contributes to a nuanced understanding of the multifaceted dynamics shaping the decriminalization of Homosexuality and offers insights for advancing LGBTQ+ rights globally. 

Introduction

WHAT IS HOMOSEXUALITY?

Homosexuality is sexual interest in and attraction to members of one’s own sex. The term gay is frequently used as a synonym for homosexual; female Homosexuality is often referred to

as lesbianism.

Homosexual behaviour has been permitted, tolerated, punished, and forbidden at various points throughout history and across civilizations. In ancient Greece and Rome, Homosexuality was ubiquitous. Western classicists have recently focused on the interactions between adult and adolescent boys. In both Judeo-Christian and Muslim civilizations, gay behaviour is considered wicked.

On the other hand, many Jewish and Christian leaders have made considerable efforts to make it clear that their faiths prohibit deeds rather than individuals or even their “inclination” or “orientation.” Various groups, including mainstream Protestants and Reform rabbis, have urged for full acceptance of gays and their partnerships, citing religious and social reasons.

The global LGBTQ+ community faces challenges such as the Sexual Offenses Bill in Uganda, discrimination by Catholic organizations, the death penalty in seven countries, bans on LGBTQ+ content in schools, rising violence in Brazil, and increased vulnerability to COVID-19.

CONTEMPORARY ISSUES

Homosexuality is seen differently in many countries, with most in Africa, Asia, and Latin America frowned upon. Western nations had more liberal attitudes, especially in the United States, where the LGBT rights movement emerged as a political hot topic after the Stonewall riots of 1969. Homophobia persists even in regions without physical violence. However, some signs of change have been seen, such as legal marriage for homosexual couples in Amsterdam in 2001 and the repeal of sodomy statutes in Albania in 1995. Gay men and lesbians have come out more openly about their sexual orientation, with some being forced to expose their sexual orientation in the media by campaigners in favor or against homosexual rights. AIDS was a significant issue faced by homosexual men in the final two decades of the 20th century and beyond.

There are some global issues. 

• Ugandan Parliament passed the Sexual Offenses Bill, criminalizing same-sex sexual acts.

• The US Supreme Court ruled Catholic organizations can discriminate against LGBTQ+ based on religious beliefs.

• Seven countries maintain the death penalty for same-sex conduct: Brunei, Iran, Mauritania, Qatar, Saudi Arabia, Sudan, and Yemen.

• Hungary banned LGBTQ+ content in schools.

• Rising violence against LGBTQ+ in Brazil.

• Global vulnerability to COVID-19.

In 2018, Homosexuality gets legal approval and recognition. SC reads 158-year-old colonial law and allows gay sex among consenting adults in private.

  ABOUT SECTION 377 –

*During British control in India, Section 377 was enacted in 1861, making sexual behaviours “against the order of nature,” including homosexual conduct, illegal.

*In 2001, an NGO, Naaz Foundation, and AIDS Bedhbhav Virodh Andolan brought section 377 to the Delhi High Court’s attention. The court dismissed both petitions.

*Eight years later, the Delhi High Court declared sex between adults of the same gender to be “illegal.”

*However, the 2009 high court decision was overturned in 2013 by the Supreme Court, which also dismissed a review panel.

  *The LGBTQIA+ community gained hope in 2014 when the Supreme Court ordered the government to recognize transgender people as a third gender and include them in OBC quotas.

*In 2018, a three-judge panel heard a petition filed by five individuals urging the Supreme Court to reconsider the Naaz Foundation decision. The case was referred to a huge bench, and support was sought from the centre as well.

A landmark decision by India’s top court has repealed a colonial-era legislation that criminalizes consenting gay sex, marking a hard-fought win for the LGBTQ community.

The five-judge bench ruled unanimously Thursday in New Delhi. In his verdict, Chief Justice of India Dipak Misra stated that “the LGBTQ community has the same fundamental rights as citizens.” People’s identities are crucial, and we must eliminate prejudice, promote inclusion, and ensure equality.

The court judgment marks a significant milestone for LGBTQ individuals in the country, where Homosexuality is still considered a societal taboo and discrimination is prevalent.

A LONG STRUGGLE.

The Naz Foundation, an NGO promoting HIV/AIDS awareness, filed a legal challenge against the statute in 2001, submitting a suit to the Delhi High Court.

The conversation about LGBTQ rights in India began with HIV/AIDS, referencing the 1969 New York City uprising, which served as the starting point for the American LGBTQ rights struggle.

The Supreme Court of New Delhi reversed a 2009 decision decriminalizing homosexuality for consenting adults, a decision that fewer than 200 people had been charged with in over 150 years. LGBTQ advocates petitioned the court five times in 2016 to abolish the law, arguing it violated their rights.

LGBTQ activists in India are applauding the decision to host the Mr. Gay India contest, but some members of the community argue that difficulties still exist. Samarpan Maiti, a rights activist and scientist, aims to raise awareness about the LGBTQ movement in rural areas by exposing the widespread belief that Homosexuality is either an illness or a passing phase. Maiti’s specialty is working with LGBTQ individuals in underdeveloped regions, but he acknowledges that it took him time to win his mother’s acceptance when he came out in 2016. She never mentioned it, and I was the one who brought it up most frequently, he claims. She finally accepted me once I showed her films about the LGBTQ community and our issues. 

The LGBTQ community faced strong opposition in court, with Christian religious groups arguing against it. Despite Hindu and Muslim groups standing back, members from all religious groups have defended their anti-gay stand in speeches and media appearances. LGBT activists are pushing for marriage equality and property rights but will face ongoing battles to ensure their rights are not taken back, as they did in 2012.

INDIAN COURT REJECT SAME-SEX MARRIAGE

India’s Supreme Court Ruling on Same-Sex Marriage

• India’s Supreme Court rejected a plea to legalize same-sex marriage, a setback for gay rights in a conservative country.

• The five-member bench ruled unanimously against the petitioners, with the chief justice stating it was up to Parliament to create laws recognizing same-sex unions.

• The ruling offered some hope to same-sex marriage proponents but also criticized the judiciary for not entering into the legislative domain.

• The petitioners claimed that the lack of legislative protections violates their fundamental right to equal protection under the law and the entitlement for same-sex couples to adopt children.

• The decision follows a lengthy legal procedure that began with a live-streamed 10-day hearing last spring.

• India’s conservative government, led by Prime Minister Narendra Modi, argued that it had a legitimate interest in preserving marriage as a union and criticized the petitioners for promoting “urban elitist views.”

CJI’s judgment:

The CJI, in his opinion, concludes that the court can neither strike down or read words into the Special Marriage Act to include same-sex members within the ambit of the 1954 law.

It is up to the Parliament and State legislature to enact laws on marriage.

However, at the same time, the CJI says the relationship of marriage is not a static one.

According to him, anyone who identifies as queer has the same freedom and right to form a “union.” He claimed that queer couples, who are prohibited from marrying under the current legal system, will be disproportionately affected by the state’s unwillingness to acknowledge the range of benefits that come with a partnership.

To put it briefly, the legislature is tasked with determining whether or not same-sex marriages should be recognized legally by the CJI. However, he asserted that the state shouldn’t discriminate against or overlook a “union” or a relationship between gay couples.

• Rajagopal Krishnadas

CONCLUSION

The decriminalization of Homosexuality in India has been a long and arduous journey, marked by legal interventions and societal shifts. The conclusion of this discussion on legal interventions in the decriminalization of Homosexuality in India underscores several key points:

• Historic Milestone: The decriminalization of Homosexuality in India, with the overturning of Section 377 of the Indian Penal Code in 2018, was a historic milestone. This legal intervention was a result of persistent advocacy, courageous individuals, and a judiciary willing to uphold constitutional principles.
• Human Rights and Equality: The decriminalization of Homosexuality reflects a significant step forward in the protection of human rights and the pursuit of equality for all, regardless of sexual orientation. It affirms that no one should be persecuted or marginalized on the basis of their sexual preferences.
• Legal Framework: The legal intervention involved a reevaluation of the legal framework, with the Supreme Court of India recognizing the importance of individual autonomy and privacy. This decision has set a precedent for other countries in the region and around the world.
• Impact on Society: Legal intervention has had a profound impact on society. It has empowered LGBTQ+ individuals to live more openly and has paved the way for greater acceptance. While challenges persist, decriminalization has triggered important conversations and cultural shifts.
• Continued Struggles: It’s important to note that legal intervention alone is not a panacea. Discrimination, stigma, and bias against LGBTQ+ individuals continue to exist, and further legal and societal efforts are required to achieve full equality and inclusion. 
•  Global Implications: The legal intervention in India also resonates on the global stage. It serves as an inspiration and model for other nations striving to dismantle archaic anti- LGBTQ+ laws and advance human rights.

In conclusion, the decriminalization of Homosexuality in India is a testament to the power of legal interventions, grassroots activism, and judicial wisdom in the quest for LGBTQ+ rights. It signifies a significant shift toward a more inclusive and just society. However, the journey is far from over, and ongoing efforts are needed to ensure that legal rights translate into social acceptance and equal opportunities for all individuals, regardless of their sexual orientation. This legal intervention stands as a beacon of hope and progress, not only for India but for the broader global LGBTQ+ rights movement.

By sunidhi

Himachal Pradesh national law university