ABSTRACT
This article examines the legal history of LGBTQ+ rights in India, with a particular emphasis on Section 377 of the Indian Penal Code (IPC). Section 377, passed during British colonial authority in 1861, criminalised consensual same-sex partnerships, casting a long shadow over LGBTQ+ lives in India for more than 150 years. The article details the major legal challenges to this statute, beginning with the Naz Foundation’s 2001 suit, which resulted to the Delhi High Court’s landmark 2009 judgement decriminalising consenting same-sex relationships. However, the Supreme Court’s 2013 reverse reinstated Section 377, only to see it decisively overturned in 2018’s landmark Navtej Singh Johar v. Union of India decision. This decision upheld the constitutional rights of LGBTQ+ people, emphasising dignity, autonomy, and privacy. Despite this progress, the Article emphasises the continued need for comprehensive anti-discrimination legislation, marriage equality, and stronger transgender rights. It advocates for long-term legal reforms and societal change to attain full equality and eliminate deep-seated biases against the LGBTQ+ population in India.
KEYWORDS
LGBTQ+ Rights, Section 377, Decriminalisation, Indian Penal Code, Supreme Court, Legal Reforms, Equality .
INTRODUCTION
The struggle for LGBTQ+ rights is an important part of the global human rights movement. There is a major issue as the discrimination against the LGBTQ community is highly prevalent in the Indian society where people still consider “gay-sex” a taboo This article examines the legal trajectory of LGBTQ+ rights in India, with a specific emphasis on Section 377 of the Indian Penal Code (IPC). This law clause, which penalised consenting same-sex relationships, has been the subject of heated discussion and unprecedented judicial interpretations, culminating in a historic decision by the Supreme Court of India in 2018.
HISTORICAL BACKGROUND OF SECTION 377
Section 377 of the IPC was enacted during British colonial authority in 1861. It was inspired by the Buggery Act of 1533, which was passed during the reign of King Henry VIII in England. Section 377 used wide language to include “unnatural offences” and criminalise “carnal intercourse against the order of nature.” This provision was primarily intended to target and criminalise same-sex relationships, regardless of consent.
For more than 150 years, Section 377 loomed over the lives of LGBTQ+ people in India. The statute not only subjected individuals to criminal prosecution, but it also legitimised societal shame and prejudice, jeopardising their basic rights.
EARLY CHALLENGES AND JUDICIAL RESPONSES
The first substantial legal challenge to Section 377 occurred in the early 2000s. In 2001, the Naz Foundation, an NGO focused on HIV/AIDS and sexual health, filed a Public Interest Litigation (PIL) in the Delhi High Court to decriminalise consensual same-sex relationships between adults. However, in 2003, the Delhi High Court dismissed the petition stating that the petitioners were not in the capacity to appear in the court.
In 2009, the Delhi High Court issued a landmark decision in ‘Naz Foundation v. Govt. of NCT of Delhi’, declaring that Section 377, insofar as it criminalised consensual sexual acts between adults in private, violated Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life and Personal Liberty) of the Indian Constitution. Section 377, according to homosexual rights campaigners, denies a person’s dignity and criminalises his essential identity purely because of his sexual orientation, so violating Article 21 of the constitution. Following an 8-year legal battle, the Delhi High Court decriminalised sex between two consenting individuals of the same gender in 2009.
In its 105-page decision granting the petition, the Bench stated that Section 377 deprives a gay person of the right to complete personality, which is implicit in the notion under Article 21 of the Indian Constitution.The court emphasised that discrimination based on sexual orientation was illegal and that the legislation should change to reflect contemporary ideals and respect for individual autonomy.
THE SUPREME COURT’S REVERSAL
However, this progressive decision was short-lived. The Delhi High Court’s decision in ‘Suresh Kumar Koushal v. Naz Foundation’ was overturned by India’s Supreme Court in 2013. The Supreme Court restored Section 377, holding that the judiciary should not interfere in subjects best left to the legislature. The court ruled that a “minuscule fraction of the country’s population” could not use fundamental rights to overturn a legislation that had been in place for almost a century. It was observed that Section 377 need not be struck down as only a small fraction of the country’s population constitute the LGBT community and in more than 148 years, since the implementation of this section, less than 200 people have been prosecuted.
Human rights groups, legal scholars, and members of the LGBTQ+ community all expressed dissatisfaction with this ruling. It was viewed as a major setback in the campaign for equality and non-discrimination.
THE LANDMARK 2018 JUDGMENT
In 2018, the landmark decision ‘Navtej Singh Johar v. Union of India’ changed the tide once more. A five-judge Supreme Court panel unanimously overturned the colonial-era law, which criminalised consensual same-sex relationships between adults. The court ruled that Section 377 breached Articles 14, 15, 19 (Freedom of Speech and Expression), and 21 of the Constitution.
The decision was a broad and unequivocal vindication of LGBTQ+ individuals’ constitutional rights. The court acknowledged that Section 377 was steeped in deep prejudice and perpetuated discrimination and shame against the LGBTQ+ community. The decision emphasised the value of individual autonomy, dignity, and privacy. The Supreme Court ruled that members of the LGBTQ community “are entitled, as all other citizens, to the full range of constitutional rights, including the liberties guaranteed by the Constitution,” as well as equal citizenship and “equal protection of the law.”
Justice Indu Malhotra, one of the judges on the bench, poignantly stated that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” The Court found that criminalising sexual conduct between consenting adults infringed their right to equality. Justice Dipak Mishra, one of the judges on the bench, everybody who has reached adulthood and is capable of thinking for himself has the right to pick his life mate. Article 21 grants an individual the right to union, which includes not just marriage but also companionship in all its forms, whether physical, mental, sexual, or emotional.
SAME SEX MARRIAGES IN INDIA
Recently, the Supreme Court denied petitions to legalize same-sex marriage. The Court also examined the Special Marriage Act of 1954 to study its connections with homosexuality. The right to marry is not specifically recognised as a basic or constitutional right in the Indian Constitution, but it is a statutory right governed by a variety of laws. However, its recognition as a fundamental right has evolved through legal rulings issued by India’s Supreme Court, which are binding on all courts under Article 141 of the Constitution.
In Shafin Jahan v. Asokan K.M. and others, 2018, The Supreme Court used Article 16 of the Universal Declaration of Human Rights and the Justice. KS Puttaswamy case to conclude that Article 21 of the Constitution guarantees the freedom to marry the person of one’s choice. Article 16 (2) of the Indian constitution states that no one shall be discriminated against solely on the basis of religion, race, caste, gender, descent, place of birth, domicile, or any combination thereof. The freedom to marry is inextricably linked to the liberty guaranteed by the Constitution as a fundamental right, as is each individual’s ability to make decisions that are vital to the pursuit of happiness. Beliefs and faith, especially the decision to believe, are important to constitutional liberty.
In Supriyo @ Supriya Chakraborty & Anr. v. Union of India, (2023), In the aforementioned case, the five-judge bench unanimously determined that the freedom to marry is not a fundamental right in and of itself, nor does it fall under the umbrella protection of any of the other basic rights. The court also highlighted the distinction between the two aspects-choosing a partner and getting married–to emphasise its position. The court emphasised that, while it had previously determined on the right to pick a partner when it comes to the right to marry, it is solely up to the State to enact legislation approving it.
The court further ruled that all of the rights cited by the petitioners as a result of marriage are benefits provided by the state rather than rights inherent in marriage. The court also emphasised that just because LGBTQIA+ people do not have the right to marry does not mean they do not have the right to privacy, choice, and autonomy, which were previously considered when Section 377 of the IPC was repealed. The court ruled 3:2 that after a comprehensive review of Articles 19, 21, and 25, the State has no positive obligation to recognise every type of civil union as marriage. Thus, the conditions of the ruling dismissed the petitions in this instance, and LGBTQIA+ people’s right to marriage was denied.
IMPLICATIONS AND WAY FORWARD
The decriminalisation of Section 377 was a significant step forward for LGBTQ+ rights in India. It laid the groundwork for future legal improvements and cultural acceptance. However, decriminalisation is only the beginning. LGBTQ+ people face a long and difficult path to complete equality and non-discrimination.
LEGAL AND SOCIAL REFORMS
1. Antidiscrimination Laws: Despite the decriminalisation of same-sex partnerships, LGBTQ+ people continue to encounter pervasive discrimination in many areas of life, including employment, education, healthcare, and housing. There is an urgent need for comprehensive anti-discrimination legislation that clearly protects people based on their sexual orientation and gender identity.
2. Marriage Equality and Family Rights: The legal recognition of same-sex relationships, including marriage and adoption rights, is still a difficult topic. While significant progress has been made, such as the recognition of same-sex weddings under specific personal laws, there is no comprehensive legal framework to ensure marital equality. Advocating for inclusive family laws that recognise various family configurations is critical.
3. Transgender Rights: There have been major improvements in transgender people’s legal status and rights. The Transgender Persons (Protection of Rights) Act of 2019, which intends to protect transgender people’s rights, has been criticised for a number of clauses that are seen inadequate or regressive. Continuous efforts are required to guarantee transgender people have equitable access to school, work, healthcare, and social security.
4. Awareness and Sensitization: To overcome deeply rooted prejudices and stereotypes, massive awareness and sensitization initiatives must be implemented alongside legal reforms. Educational institutions, companies, and healthcare professionals must have the knowledge and compassion to handle the unique needs and challenges of LGBTQ+ people.
CONCLUSION
The journey to full equality for LGBTQ+ people in India is ongoing. The decriminalisation of Section 377 was a huge step forward, but it is not the end of the path. It is a call to action for ongoing campaigning, legal reforms, and societal change to guarantee that LGBTQ+ people can live in dignity, free of discrimination and prejudice.
The legal fights fought and won have built a solid foundation, but the true challenge is to change societal attitudes and ensure that the constitutional promise of equality and justice is fulfilled for all individuals, regardless of sexual orientation or gender identity. The fight for LGBTQ+ rights is, ultimately, a fight for human rights, and it needs to be pursued with steadfast devotion.
AUTHOR: Aiswini R Pillai, student of Lloyd Law College , Greater Noida
FAQs
1. What was the importance of the Supreme Court’s 2018 Section 377 decision?
The 2018 Supreme Court decision in Navtej Singh Johar v. Union of India decriminalised consensual same-sex relationships between adults by declaring Section 377 invalid for violating Articles 14, 15, 19, and 21 of the Indian Constitution. This landmark decision was a significant step forward for LGBTQ+ rights in India, acknowledging the dignity, autonomy, and privacy of LGBTQ+ people.
2. What were the main points raised by the Delhi High Court in the Naz Foundation v. Govt. of NCT of Delhi case?
In the 2009 case of Naz Foundation v. Government of NCT of Delhi, the Delhi High Court ruled that Section 377 of the IPC, which criminalized consensual sexual acts between adults in private, violated Articles 14, 15, and 21 of the Indian Constitution. The court emphasized that discrimination based on sexual orientation was unconstitutional and that the law should reflect modern principles of equality and autonomy.
3. What legal and social reforms are still required to ensure full equality for LGBTQ+ people in India?
Despite the decriminalisation of Section 377, LGBTQ+ people in India continue to encounter discrimination in a variety of settings, including employment, education, healthcare, and housing. Comprehensive anti-discrimination legislation, legal recognition of same-sex marriages and family rights, better transgender rights, and mass information and sensitization campaigns are urgently required in India to attain full equality and non-discrimination for LGBTQ+ people.
REFERENCES
