By Kalyani Mahesh
“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”.
– J.Indu Malhotra
All human beings are social animals. There is only one difference between humans and animals. Animals have a special time period for sexual reproduction and the same for the further propagation of their life and they enjoy no barriers of law pr societal shackles but instead they see to it that both the purposes impregnated would be accomplished through the biological process. Human beings face the problem of barriers that are uncountable and can be mentioned as a vast array. Human Beings cannot get involved and carry out the sexual act as it is normally observed inhumane and immoral.
While sex remains the right pertaining to human beings, the question that arose among the human population was whether Human Beings are eligible for enjoying homosexuality which remain as an age old question among all the countries including India, UK, and the US. And the verdict passed out in 6th of September 2018 remains an astonishing one supporting the so far ostracised society of the world LGBT+ community members. The view taken by the court that it is a decriminalised as per the Navtej Johar Singh v. Union of India is an altruistic and peace rendering verdict for all kinds of people in the society.
Let’s view it personally without involving the view of three pillars of Indian Constitution the society would have moved into absolute chaos had it been for the Indian Constitution to further ostracise and look down upon people who are LGBT (lesbians, gays, bisexuals, and transgenders) community .It would have been as good as denying their fundamental rights. As long as there is no open expression of sexuality by people it doesn’t affect the Indian Society too badly as in other countries. So far there is no society or group formed consciensciously to make people involved into the homosexual act.It can be allowed to continue without any impediments.If at all, there occurs further propagation and involvement in such acts by a group of individuals they can be let free to enjoy the same as long as it doesnt perpetrate nuisance like attempt to rape,coercion to make people who lead a normal life to involve in such acts.
Freedom of choice is to be observed as boon as long as it does not cause any imbalance in the society.As long as these groups of people remain persistent in their act , they cannot be brought back to normal as they themselves view their lives as normal.
The Indian Constitution had passed out the verdict on 6th of September 2018 which showed disagreement to the earlier verdict and decriminalised the act of homosexuality which brought absolute peace in the so called LGBT community.
Is homosexuality a choice or are they born gay?
There are two answers for the same .The Ist one says: it is true that people choose themselves to be gay they are making an immoral choice which should be discouraged. Secondly, some say that sexual preference is biologically determined and that government should protect gay people from discrimination as it is an unalterable aspect of their identity.
As a common factor among the two, science conveniently supports the personal decision of each individual.It is true that sexual preference can be changed. People have the right to engage in gay sex if they choose to do so.
A fourth opinion that says that gay people have no other choice but to be gay but should be punished for it is too harsh and hard a concept.
A journal of science published in 1993 showed that families that have two homosexual brothers have certain genetic markers on the regoin of the X chromosome, Xq28 .There were discussions about the ethical aspects of aborting gay foetus as well.
This landmark event shouldn’t be interpreted as the ending up of a couple of decades of fight against the draconian law but should rather be comprehended as the wake of a new era, the fight for the LGBT community and its rights.It is true that the LGBT community in India has a much larger and stronger chunk of problems and struggle ahead which can be simulated to an iceberg that has fallen into the sea that has a larger invisible part and an upper visible part that is too small.Another fact is that the LGBT community has to encounter certain laws that remain still condemnable and prejudicial towards them.
The cause behind this is that there exists a lacunae between judicial development and legislature in India.The foundation to provide chances of developing a non -binary community was provided through the judgements of National legal services authority v Union of India , Navtej Singh Johar ‘s case and K.S Puttuswamy ‘s case. Still the legislature failed absolutely to keep up with the latest developments.So the verdict delivered that the same -sex couples can co-habit and its an unquestionable legal right.They can leave without fear of persecution but their eagliterian rights still remain as a question mark before them.
So the fight for equality remains a question with numerous difficulties that are amalgamated along with it.
Evolution of LGBT Rights
Non-procreative sexual intercourse as per IPC Section 377 was viewed upon as a criminal act during pre -independence by the British Colonial Government.It had further directions against homosexuals as well as other forms of non traditional sexual intercourse such as the aspects involved in heterosexuality. So it was just a remnant of Orthodox -Victorian morality that had no expressivity in India, a country that is democratic in nature.It is surprising that it took more than 7 decades plus another couple of decades of long legal battle to abolish the age-old law that remained as a strong weapon to harass and exploit and trample upon the community that denied to go in consensus with the traditional binary of sexuality. Still the basic human rights to the LGBT community remains denied and doesn’t go in concordance with the current laws being in force.
To trace back the history of LGBT rights is to be done, to comprehend the landmark judgements such as the ones that went on during the early 1990s.
The statement that the state shall not deny to any person equality before the law or equal protection of the laws and it appeared to do just that as per S.377 of IPC.
1. Naz Foundation Govt. v. NCT of Delhi
BACKGROUND:- Police raided a park and arrested a few men who were suspected by them as homosexuals in July 2001.Their aim was to bring them under the section 377 of IPC.Nine more men were arrested as they were members of “Barosa Trust” , an NGO which was working to bring in awareness regarding safe sexual practices. They were alleged of running a sex racket and so were denied bail. A legal aid organization “The lawyers Collective” came forward and established that the charges alleged against these people were false and thus they were released.After this incident an NGO, Naz Foundation along with “lawyers collective” filed a suit challenging the validity of Section.377 of IPC before Delhi high court in 2001.
ARGUMENTS:- It was argued by the petitioner that Section 377 of IPC violated the fundamental right to life and liberty, right to privacy and dignity, right to health, right to equality and freedom of expression; It also added that it denied the very purpose of maintenance of public health reducing the risk of contracting STDs.
It also had denied people to talk openly about sexuality and lifestyle.
JUDGEMENT: Finally in the case in 2001 the High court of Delhi, viewed that Section .377 of IPC imposed an unreasonable restraint over two adults engaging in consensual intercourse in private.And held that it was a violation of their basic fundamental rights imprinted under Articles 14,15,19 and 21.
2. National Legal Services Authority v. Union of India
Background: The transgender community in India has been the worst sufferers of exploitation amongst the whole LGBT+ community due to their degraded social, educational and economical status. These people have never been considered as a part of society and have always been subjected to exploitation, ostracisation, humiliation and violence either in the hands of society or the authorities in power. The constant rejection and not having access to resources, these people often resort to beggary or prostitution, making them more vulnerable to discrimination, STD’s and crimes such as human trafficking.
But the 2014 Judgement of the Supreme Court brought in a new ray of hope and euphoria for these transgender people as for the first time in the history, they were recognised as the third gender.
Issue: In National Legal Services Authority v Union of India, the Supreme Court had to decide upon the question of whether there was a need to recognise the hijra and transgender community as a third gender for the purposes of public health, education, employment, reservation and other welfare schemes.
Judgement: The Supreme Court in its landmark judgement created the ‘third gender’ status for hijras or transgenders. As earlier, the transgender people were forced to describe themselves as either male or female, but after the judgement, they could proudly identify themselves as transgender. But apart from this, what made this judgement so special was that it laid down the framework to guarantee the transgender community a whole spectrum of basic human rights which can be summarised as follows:
- The court held that the non-recognition of their identities was in violation of Article 14,15,16 and 21 of the Constitution of India.
- The Supreme court further directed the Government of India to treat the members of “Third Gender” as an economically and socially backward class.
- It was also stipulated that government should make proper policies for the transgender community in the light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment As per the judgement, the third gender would be categorised as other backward classes [OBC] to confer them the benefit of reservation in relation to government jobs and educational institutions.
- The court also took cognizance that a conflict between one’s birth gender and identity is not essentially a pathological condition. So, rather than adopting a “treatment of the abnormality”, the focus should be on “ resolving distress over a mismatch”.
In simple words, it means that the court recognised the difference between both the gender and biological components of sex. The court defined biological characteristics to include genital, secondary sexual features, chromosomes etc. but defined gender attributes as one’s self-image i.e. an individual’s deep emotional or psychological sense of sexual identity and character which is not restricted to the binary sense of male and female but can lie on a broad spectrum.
Aftermath: After this judgement, transgender people now can change their gender without undergoing asex reassignment surgery Additionally, they have a constitutional right to identify and register themselves as the third gender. Apart from this, various state government took small steps to benefit the transgender population by making policies of health and housing. However, a major blow to this judgement came after the passing of Transgender Persons Bill, 2018.
3. K.S. Puttaswamy v Union of India (2017)
BACKGROUND:- The Apex Court at length went on with judgement in the Suresh Kumar Koushal v Naz Foundation, as Naz Foundation alleged that S 377 of IPC violated the right to privacy, the Apex court delivered a detailed account of constitutional jurisprudence and the evolution of the right to privacy.The court eventually after explaining the significance of privacy happened to look down upon the right to privacy argument.With regard to S .377 of IPC,the court observed that there have been cases of misuse of S 377 against the LGBT community by subjecting them to blackmailing, harassing and torture.The court said that the section neither authorises nor condons such treatments and thus is not reflective of the fact such law is beyond the vires of the constitution.
JUDGEMENT:- J.Chandrachud opined and featured a section titled “Discordant Notes” in thePuttaswamy v. Union of India case, popularly called as Aadhar judgement.It dealt with two supreme court judgements –
- The infamous case of Additional Dist. Magistrate Jabalpur v S.S Shukla that upheld the denial of basic fundamental rights.
2. Kaushal ‘s case rejecting the rhetoric of the “so-called” rights of the community.
Justice Chandrachud observed that sexual orientation also has to be taken seriously under the wide purview of right to privacy.
Puttaswamy’s decision registered the criticism about minimist hypothesis that was used in Kaushal’s Judgement .It also stated that the minuscule population cannot be a fact or truth to deprive them of the basic fundamental rights.
It is not tolerable to deny them the fundamental rights though they are a minuscule population.The ruling on the right to privacy was viewed upon as an inherent fundamental right under Article 21 of the Indian Constitution as per the Supreme court.This view helped emanate the expectations to become fruitful amongst the curious community that the court would soon
4. Navtej Singh Johar V. Union of India
Case summary & outcome:- the Supreme Court of India unanimously held that s 377 of IPC 1860 that criminalized bodily intercourse against the order of nature as it was held “unconstitutional” so far as it criminalised consensual sexual conduct between homosexuals.
On the basis of outlawing certain forms of intimate conduct, the penal law branded a class of persons as criminals in waiting.This included dancers,designers, entrepreneurs and engineers but this group of people challenged the provision before the Supreme court. Five judges heard the matter and they reached unanimous outcome.Among the judges Dipak Mishra, the chief justice observed that “homosexuality is an expression of choice which if denied is equivalent to denying both rights to dignity and liberty”.Healso added that “homosexuality is based on (a) sense of identity…..it is just as much ingrained, inherent and innate as heterosexuality.
J.Nariman stressed the centrality of the “choice”.The right of every citizen of India to leave with dignity and right to privacy and right to make intimate choices as to how such individual wishes to live.
J.chandrachud shared a similar lens regarding the right to a self determined sexual orientation. He said that choices are at the core of privacy.
The only woman on the bench J.Indu Malhotra adopted an adamant,unique and iron approach that “sexual orientation is an innate attribute of one’s identity and that it cannot be altered and that it is not a matter of choice”.
It was astonishing that among the five judges, two highlighted “choice” as an answer and though the other two wobbled, they mostly emphasised on “choice” itself.Only one denied the chance of choice.
The scientific corpus largely favours genetics and hormones or innate causes.
Seemingly it was not the scientific corpus that influenced four of the judges were that they observed that same sex conduct among consenting adults doesn’t harm or affect others or even if the conduct emanates from choice they are worthy of constitutional affirmation. So the opinions are best adoptable.
Praising the word choice renders the verdict from the vagueness of the research work regarding the topic.It is choice that constitutes the foundation of the trait of homosexuality.No further advances can be made or maybe relevant regarding the queries made by the enthusiasts of human society.As time advances we may get the information that social factors alone cause homosexuality.Nothing changes as the court has already reckoned and recorded the same.Researches may go on regarding biological markers of homosexuality but circumstances and instances of the practice of homosexuality remain the same.It doesn’t mean that researchers have to abandon their thirst to know the reality.Science cannot bring any change or difference regarding the constitutional fortunes of LGBT.The agnosticism about the crux of the problem isn’t directed towards western science alone.It equally applies to other countries and India as well.
Ramdev, the so-called yogi has been in a relentless pursuit for about 20 years on a neurotic crusade to cure the LGBT community.He says that the addiction can well be overcome through the regular and persistent practice of Yoga as homosexuality is viewed as an obsession by him and many others. All choice fall into one of the three boxes with different colours : Red (obviously prohibited),Green (obviously permitted ), yellow(obviously controversial).For long the same-sex conduct in India was red.The new verdict firmly puts it in green -as it a matter of individual choice.It harms no one and there are no good reasons to ban it.Let the law stay as such, as long as peace remains in the country.It provides egalitarian rights to all the individuals.