Decriminalising Homosexuality: A Brief Overview

The battle for decriminalisation of homosexuality started in the year of 1994 by a petition filed by the NGO AIDS Bhedbhav Virodhi Andolan for recognition of homosexual rights in India. Then it was carried forward by the NGO Naz Foundations. In the legislative sphere the fight for LGBT rights was sparked by Shashi Tharoor, who passed a bill on the same contention in the Lok Sabha. Later on, the Supreme Court realised the importance of giving recognition to homosexual rights and it legalised homosexuality and separated it from section 377 in 2018. By criminalising homosexuality, we waive of the rights provided by article 14, article 15, article 16, article 19 as well as article 20.

Right to equality under article 14 was violated by criminalising homosexuality since we were discriminating on a particular group in the society by criminalising their sexual behaviour. By Criminalising homosexuality, the state violated its duty under article 15 (prohibition of discrimination under the basis of sex). Homosexuality being a crime the LGBT people were not given proper employment and were even fired from employment in some cases after knowing about their homosexuality. This violated their fundamental right under article 16 of the constitution. The LGBT people were even scared to disclose information about sexually transmitted diseases and other such diseases which is based on some sexual acts as we will see in the case of AIDS Bhedbhav Virodhi Andolan. In other words, their right to expression under article 19(1)(a) was violated. Article 21 provides all citizens with the right to live with dignity which was also violated. Due to criminalisation of homosexuality the LGBT people were harassed by the police officers and other authorities but still they could not approach the court to seek remedies.

After a long-term fight against the provision of section 377 of IPC, finally the court gave the verdict decriminalising homosexuality and thus marked an end to the age-old war between law and tradition but legal recognition is yet to be achieved.

The buggery act which originally brought into purview the section 377 and due to which the whole controversy about the homosexuality arises was brought in India by the British some 150- years ago. At that primitive time the laws and even jurisprudence of the judges of a place was very subjective. They were governed by the traditions and the cultures of that place. Importance to reasonableness and rationality was not given importance at all. This may have been the case of the society some 150 years ago. But today when the judicial and the legal system all over the world has changed so subsequently so as to make reasonableness and rationality as the basis of today’s jurisprudence. In today’s situation it is totally unjustifiable to waive off the fundamental rights of the homosexuals who form a particular section of the society.

By the historic judgement of the Supreme Court in Navtej Singh Johar v. Union of India, homosexuality will not be any more considered as an offence but a natural act as long as it’s within the boundaries of law.