Introduction:
The term ‘Homosexuality’ was coined in the late 19th century by Karoly Benkert, who was an Austrian-born Hungarian psychologist. Merriam Webster defines Homosexuality as follows, “sexual or romantic attraction to others of one’s same-sex: the quality or state of being gay. Earlier, Gay Rights Movement focused on the rights of Homosexual women and men. Later, in addition to them, they also focused on the equal rights of bisexuals and the transgender community.
Original Section 377 of Indian Penal Code:
Before looking into why section 377 was partially scraped off, it is important to refer to the original text of section 377 and the intention behind enacting it in the Indian Penal Code. Section 377 dealt with Unnatural Offences and it was read as follows,
“Whoever voluntarily, has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of either description for a term up to ten years and shall also be liable to fine”
The purpose behind the addition of article 377 was to penalize the offense of sodomy, buggery, and bestiality. The act is alleged to consist in a carnal knowledge committed against the order of nature by any person with a man or with the woman in the same unnatural way or by either of man or woman with any animal for that matter. As per Ratanlal and Dhirajlal, two main ingredients are to be satisfied to commit this unnatural offense under section 377. They are Carnal Intercourse and doing such act that is against the order of nature.
Section 377 and 2018 Judgment:
Why did the Apex court decriminalize section 377? The section was challenged for its constitutional validity, which means that the section has been declared to be violating the principles enshrined in the constitution. The four main Articles, which were challenged for being violated by the essence carried in section 377, are Articles 14, 15, 19, and 21. It was contended that section 377 discriminates against the citizens based on sexual orientation and based on the identity of the individual, which is a direct violation of Articles 14 and 15 of the Constitution of India. Unlike other individuals, there has been discrimination against LGBTQ+ individuals and have been kept detached from society for a long time. Also, it was contended that this denial of equal rights further violates the right to life and dignity of individuals concerned, which violates article 14 of the Indian Constitution. The then Chief Justice Misra pointed out that section 377 should be struck down on the ground that it manifests arbitrariness and makes unreasonable classification which is not entertained under section 14 of the Indian Constitution. Article 21 is violated mainly because LGBTQ+ individuals are not given the right to live autonomously as part of their personal choice. Fourthly, section 377 of IPC restrains such communities from being fully realizing their identity as Transgender, Gay, and Lesbian, and so on. Justice Chandrachud observed that denial of the right to sexual orientation is a violation of the right to privacy which was enabled through Puttaswamy Judgment. Quorum also noted that section 377 is anachronistic colonial law. These were the contentions and violations against the constitutional principles.
Status of LGBTQ+ Post 2018 Judgment:
With the founding stone strongly laid down in the above case, we should also analyze the aftermath, that is, the recent developments and court proceedings relating to LGBTQ+ rights in our country post the judgment. One of such recent cases is S Sushma v. Commissioner of Police (June 2021), where the Madras High court Judge’s observations had a huge impact on the recognition of LGBTQ+ rights. Justice Anand Venkatesh issued orders to ensure the rights of the LGBTQ+ community. He observed, in the case, that the present case is not only an opportunity but also a vested responsibility on the justice delivery system to balance the society through ‘inclusivity’ and justice against discrimination made on the notions of traditions. Here the honorable judge himself stepped out from the role of judge and considered him as an average or common man in the society, who has been trying to understand the LGBTQ+ community. This must be the extreme level of recognition of the rights of LGBTQ+ from the side of the judiciary. This is where the transition gets started, which is a normal notion to a specific/customized notion while dealing with the LGBTQ+ community. The Judge had accepted his ignorance of reality and stated that his ignorance can never serve justice to those who were denied their personal rights for decades-long. Such removal of preconceived notions should be the key to ensuring their rights in society. Not to forget, it is important to understand as a law student, that the laws and rules have been or should be changing according to the needs, ways of life in the society and shapes the society as per the supreme law of our land.
