WHAT IS HOMOSEXUALITY?
The in late 19th century a German psychologist, Karoly Maria Benkert originated the term ‘homosexuality’. The term was new but not the meaning behind it discussions about sexuality in general, and same-sex attraction in particular, have occasioned philosophical discussion ranging from Plato's Symposium to contemporary queer theory. Since the beginning of the time there has beena small but persistent minority in every society exhibit a sexual orientation or gender identity different from the majority. These discoveries of science have attracted and increasing interest on the part of the civil society in the laws which have traditionally disadvantaged those in the relevant minority groups.
So long as it was believed that human being were universally and naturally born to desire sexual and connected emotional relations only with persons of the opposite sex and that it was what nature or god has imprinted on the human species the imposition of the criminal laws and various forms of legal and social discrimination against minorities not conforming to the norm could perhaps be understood.
The criminalisation of deviant sexuality started with the era of colonialism as only after centuries when the initiative of individuals and civil society of UK and other countries that led to the repeal of criminal laws that had targeted sexual activity involving people whose sexual orientation was same sex oriented.
In this epoch of modernity, Indian culture has also become modern and considered homosexuality as legal. As On September 6, 2018 Hon’ble Supreme Court declared section 377 of IPC, 1860 unconstitutional and provide homosexuality a status of legality making homosexuality legal Homosexuality over the years is used by different terms and in modern times to include all the minorities of different sexualities together the term LGBTQ is given that group of it stands for Lesbian, Gay, Bisexual, Transgender and Queer and along with heterosexuality they describe people’s sexual orientation or gender identity.
Lesbian: -A lesbian refers to woman who is romantically, sexually and emotionally attracted to a woman.
Gay: -A gay man is one who is romantically, sexually and emotionally attracted to man.
Bisexual: - a bisexual person is someone who is romantically, sexually and emotionally attracted to people of both sexes.
Transgender: - it is an umbrella term used to describe people whose gender identity and gender expression, differs from that usually associated with their birth sex.
Queer: - A political explanation, just as a sexual introduction, which advocates breaking binary reasoning and seeing both sexual introduction and sex way of life as possibly liquid. The term is a basic mark to clarify a mind-boggling set of sexual practices and wants. For instance, an individual who is pulled in to numerous sexes may recognize as eccentric. Numerous more established LGBT individuals feel the word has been derisively utilized against them for a really long time and are hesitant to grasp it. "Queer" can be used as an umbrella term to insinuate all LGBTQI people.
HISTORY OF DEVELOPMENT
India because of its own colonial past was one such country which was under the influence of England. Typically the growing scientific knowledge was ignored frequently in the name of culture and religion. In the 19th century when British power in India was expanding the greater was the sexual repression in the country. As England colonized many countries many or all of the penal laws were influenced by it specially the Macaulay’s IPC within which section 377 of unnatural offences was added. The effect of which was that even if the two adults consented to the same sex activity they were to be punished by the law.
To understand section 377 of IPC adopted by British rulers of India in 1861 it is necessary also to understand a little more about the way that the sodomy offence earlier came to exist in European legal system over the preceding thousand years. Section 377 of IPC reads as-
Unnatural offences—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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
And this section is similar in most of the European colonies. The first formalisation of anti-homosexual bias in Europe began with the imperial conversation Roman Empire to Christianity. The more rapid the process of modernisation the more intolerant society became.
The idea of sodomy originated in the scriptural texts of Abrahmic, Judaism, Christianity and Islam. Sodomy was perceived by the Church as an offence against God and that is why the consequences of this crime were the most painful death.
The middle ages showed a relaxation of some of moral requirements in the same field. However, hard line religious believers again asserted their views by the mid thirteen century. This mentality influenced the content of English Penal Laws as declared by the judges and enacted by the Parliament. By this, it means sodomy laws found their way in time into virtually every corner of British Empire including India and Australia. A significant change came about in 16th Century following the severance by Henry VIII of the link that had to that time existed between the English Church and Bishop of Rome. Common Law crimes were revised.
It was after the publication of Alfred Kinsey report on human sexuality that the notion of homosexuality as a mental illness came under intense critical scrutiny within the border of scientific community. In 1990 WHO removed homosexuality from its international classification diseases. Contemporary research in brain science, genetic, neuroendocrinology all seems to coverage towards the conclusion that sexuality in human beings is not a matter of choice. The demolition of superstition and prejudices of the past inevitably have consequences of the Law.
As recently as 2000, the change in the homosexuality law was not accepted. Gay relationships were viewed to be shameful. Then in 2003, France moved to make a legislation on ‘gay marriages’. And a similar action was taken up in UK in 2004.
In the reasons of Chief Justice AP Shah and Justice Muralidhar in Naz Foundation case having dealt with the meaning of operation of Section 377 in IPC the Judges cited how it was that India, a pre dominantly non-Christian country came to embrace crimination of homosexuality. India’s own tradition happen to be more harmonious with the advancing discoveries of science and development of human rights.
JUDICIAL DEVELOPEMNET IN VARIOUS COUNTIRES
In DUDGEON VS UK the court held that Northern-Ireland’s criminal legislation on same- sex violates the right to privacy granted in Article 8 of EUROPEAN CONVENTION ON HUMAN RIGHTS. A legal right to a private space to express ones sexuality was confirmed for the first time in this case and was ultimately adopted by the Council of Europe. In December, 2013, the last state of the Europe to repeal this law was the republic of Cyprus.
Initially the attempts to repeal such laws failed in America, but subsequently, in 1986 in BOWERS VS HARDWICK dismissed a challenge to the sodomy law. While the right to privacy is not a right per say but for the implementation of the 14th amendment a measure to protect the privacy is implied. In 2003, SC overruled the Bowers in LAWERENCE VS TEXAS and found a flaw in the sodomy law and further in NADAN AND MCCOSKAR VS THE STATE held that right of privacy is a very wide right and involves the expression of one’s own personality without penalization.
The Naz foundation trust is a NGO that works in the area of HIV/AIDS and sexual health. And it was this foundation that issued a writ petition out of the Delhi High Court challenging the constitutional validity of section 377 IPC. Petition stated that section 377 violated article 15, 21 and 14 of the Indian constitution. The petition was upheld and in July 2009 it was held that 377 till where it penalizes the consented sexual acts of adults violate articles 21, 14 and 15. The court in NAZ FOUNDATION case said that like the US constitution the right of privacy is an implied fundamental right which stems from Article 21. The court based its decision on pre-existing jurisprudence and held:
“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the state.”
The DHC highlighted the question of “dignity of the individual” and believed that the notion of equality could foster the sense of dignity among the individuals. The DHC ignored the real reason of 377 being the prevention of HIV/AIDS and limited themselves to only the modern day needs and meaning of privacy.
In the matter of the violation of equality the DHC held that section 377 violated the equality rights of the LGBTQI Indians, and amounted to discrimination as prohibited by article 15 of Indian constitution. The judgement was accepted and there was celebration among the LGBTQ community of the country.
However, in KOUSHAL case nearly after 2 years of the Naz judgement the SC reversed its decision and held that it was not a constitutional matter but a legislative matter as section 377 either has to be repealed by the legislation or an amendment. This judgement set back the development of the Indian mind-set by a decade back and the equality that was promised in Naz case was taken back from this minority.
The level of support to same sex marriage and similar relationships in India is very low despite of the vast population of the country.
INTERNATIONAL LEGAL INCLUSIVENESS
There have been many positive developments in favour of LGBTQ community on international front. In May 2015: - Ireland legalized same-sex marriage. The country which had decriminalized homosexuality in 1993 became first country to allow same sex marriage.
In June, 2015 US Supreme court ruled that same sex marriage was legal.
France, UK, Canada, US, Australia & Brazil have decriminalized homosexuality.
Indian Supreme Court passed a judgment declaring Section-377 of Indian Penal Code, 1860 unconstitutional & conferring legal status on LGBT community. Section 377 IPC, 1860 Till 2018, in India LGBT community were illegal and punishable under Section 377 of IPC, 1860 (the national criminal law of country)
NAVTEJ SINGH JOHAR VS UOI
The case is an appeal against the judgment given by the Supreme Court in the previous case of 2013. The coram consisted of CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra and the constitutionality of section-377 of IPC was challenged.