“If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be

best attained when all persons alike share in the government to the utmost”- Aristotle

INTRODUCTION

After the historic judgment pronounced by the US Supreme Court in Obergefell v. Hodges on June
26, 2015, not only the US, but the whole world celebrated this victory of LGBTQ+ community.
The judgment was a huge step forward for the community and this led to the rise of discussion
over the issues of equality for the LGBTQ+ community, especially in countries where
homosexuality is still illegal, one of them being India who recriminalized it in its 2013 judgment.

Till date, 26 countries recognize same-sex marriage and more than 120 countries recognize
homosexuality as legal. However, there still are countries where homosexuality is punishable by
death. As extreme and barbaric as it sounds, the punishment is codified as being operational in 14
Countries. Other than these 14 countries, over 70 countries treat homosexuality as an illegal act.
As per the International Lesbian, Gay, Bisexual, Trans, and Intersex Association report of 2015 on
State Sponsored Homophobia, there are 75 countries where homosexuality is illegal but not
punishable by death. There are few countries where imprisonment can be for life. Majority of
countries that criminalizes homosexuality is found in Africa. Middle East has the second most
elevated number of countries with laws against homosexuality, trailed by Asia. Millions of people
in over 75 countries are suffering due to these uncouth laws. Albeit numerous nations have
consented to consider the issue of illegality of homosexuality in their countries, the plight of these
millions of people are still unheard and undecided. Living in a shell, hiding their identity, forcing
themselves to not fall in love, dread of being executed or arrested, what more agony can humanity
suffer from?

In this research work, I have tried to analyze the position of same-sex marriage and homosexuality
under the head of Indian legal system, with special reference to its jurisprudential aspect.

HUMAN RIGHTS AND SEXUAL MINORITIES : MEANING

With the increased global media attention on violent acts of persecution inflicted on Lesbian, Gay,
Bisexual & Transgender (LGBT) persons, a crucial question before the world community today is
whether gay rights are included under our basic human rights.

What are Human Rights

Human Rights are in fact, basic necessities in the form of certain claims of an individual recognized
by the society and the state, without which one cannot live as human being. Every individual has,
therefore, certain rights which are inherent in all individuals irrespective of their caste, creed,
colour, religion, sex, language, ideology and nationality. Such rights originate with the birth of
individual and are essential for human happiness and progress. They are necessary for the material
and moral upliftment of the human race.

What is sexual orientation

Sexual orientation is an enduring emotional, romantic, sexual or affectional attraction to another

person. It can be distinguished from other aspects of sexuality including biological sex, gender
identity (the psychological sense of being male or female) and the social gender role (adherence
to cultural norms for feminine and masculine behavior). Sexual orientation exists along a
continuum that ranges from exclusive homosexuality to exclusive heterosexuality and includes
various forms of bisexuality. Sexual orientation is different from sexual behavior because it refers
to feelings and self-concept. The word homosexuals literally means as ‘of the same sex, being a
hybrid of the Greek prefix homomeaning ‘same’ and Latin root meaning ‘sex’.2 Homosexuality
is a sexual orientation characterized by sexual attraction or romantic love exclusively for people
who are identified as being of the same sex.

It is a relatively recent notion in human rights law and practice and one of the controversial ones
in politics. Prejudices, negative stereotypes and discrimination are deeply imbedded in our value
system and patterns of behaviour. The main principles guiding the rights approach on sexual
orientation relate to equality and non-discrimination. Human rights advocates, lawyers and other
activists seek to ensure social justice and guarantee the dignity of lesbians, gays and bisexuals.

HOMOSEXUALITY AND INTERNATIONAL DOCUMENTS

International human rights law lays down obligations that States are bound to respect. Through
ratification of international human rights treaties, Governments undertake to put into place
domestic measures and legislation compatible with their treaty obligations and duties. Where
domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for
individual complaints or communications are available at the regional and international levels to
help ensure that international human rights standards are indeed respected.

As such there is no separate international human rights agreement that deals specifically with
sexual orientation or gender identity. However, all people have the same human rights regardless
of their sexual orientation or gender identity.

Below is an outline of how international human rights agreements have been interpreted to apply
to people of all sexual orientations and sex and/or gender identities.

International Covenant on Civil and Political Rights

The ICCPR enshrines the rights of all people to non-discrimination and equality before the law.
Australia has committed to uphold these standards.

Article 2(1) of the ICCPR sets out the principle of non-discrimination:

Each State Party to the present Covenant undertakes to respect and to ensure all individuals within
its territory and subject to its jurisdiction the rights recognised in the present Covenant, without
distinction of any kind such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

Article 26 of the ICCPR sets out the principle of equality:

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.

Other relevant rights set out in the ICCPR include the right to privacy (article 17) and the right to
marry and found a family (article 23).

The ICCPR does not specifically refer to sexual orientation. However, the United Nations Human
Rights Committee has found that the treaty includes to an obligation to prevent discrimination on
the basis of sexual orientation.

India has ratified the convention in 1968, and hence, is bound by it.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) (article 1)
This treaty is important because it is not limited to state actors (governments), as torture is defined
broadly in Article 1: "any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an official
capacity".

Although India is a signatory to this Convention for more than two decades, it still hasn’t ratified
it. This fact has been taken strong note of by the Supreme Court which has asked the government
why it was not making at least a “good faith commitment” about its intention to legislate in the
matter. “We do understand that the legislative process can take time, but tell us why can’t you
(Centre) make a ‘good faith commitment’ on the law before us,” a bench headed by Chief Justice
J S Khehar said.

Convention on the Rights of the Child (1989) (article 2)

Article 2 of the Children's Convention prohibits discrimination and requires governments to ensure
protection against discrimination. This treaty can be relevant in addressing sexual orientation
discrimination of lesbian, gay or bisexual children and/or parents.

India has signed and ratified the treaty in 1992 and is bound by it.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981)
This treaty can be relevant in cases of discrimination against lesbian, bisexual
or transgender women.

India has ratified the convention in 1993 and is bound by it.

the Universal Declaration of Human Rights (1945)2 states in Article 2: "Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without distinction of any kind."

India is a member of General Assembly hence the Declaration is applicable on it.

LAWS RELATING TO HOMOSEXUALITY IN INDIA

The last century witnessed major changes in the conception of homosexuality.Since 1974,
homosexuality ceased to be considered an abnormal behavior and was removed from the
classification of mental disorder. It was also decriminalized in different countries. Since then
various states across the globe enacted anti-discriminatory or equal opportunity laws and policies
to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to
constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland,
Slovenia, Spain, Norway, Denmark, Sweden and NewZealand also have similar laws.The US
Supreme Court ordered that no state could pass legislation that discriminated against
homosexuals[37]. In India, so far no such progressive changes have taken place and the
homosexuals remain victims of violence in different forms supported by the state and society.
There is no explicit mention of homosexuality or homophilia in any of the statute books of India.
A person cannot be prosecuted for being a homosexual or homophilic. But the sexual act of
sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in
Section 377 of theIndian Penal Code (IPC) of 1860.Section 377 of IPC reads:

Of 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 imprisonment of
either description for a term which may extend to 10 years and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute carnal intercourse necessary of the offence

described in this section.

This provision of the I.P.C. is based on the centuries-old misconception that sodomy and
homosexuality is one and the same thing. A homosexual man is viewed as a ‘type of person’ who
has only anal intercourse with his partner. However, the emotional attachments, fantasies and
affectionate and erotic desire are not been given due consideration. Thus, de jure, it is an attempt
to criminalise sodomy while de facto it is an attempt to criminalise and stigmatise homosexuality.
Hence conventionally homosexuality is bought as an offence under the IPC. In1987,
Tarulata/Tarun Kumar underwent a female to male sex change operation and married Lila in 1989.
Lila’s father filed a petition in the Gujarat High Court saying that it is a lesbian relationship and
that the marriage be annulled. The petition contends that ‘Tarun Kumar possesses neither the male
organ nor any natural mechanism of cohabitation, sexual intercourse and procreation of children’.
Adoption of any unnatural mechanisms does not create manhood and as such Tarun Kumar is not
a male. The petition called for criminal action underSec. 377 and the case is now pending in
Gujarat High Court[38].

In a judgment[39]the Supreme Court was dealing with a case where a man had homosexual
relations with a boy with the consent of the boy. The Supreme Court in 1983observed that: ‘the
offence is one under Sec. 377, IPC which implies sexual perversity. No force appears to have been
used neither omissions of permissive society nor the fact that in some countries homosexuality has
ceased to be an offence, has influenced our thinking’. Considering the consent of the boy,
theSupreme Court reduced the sentence from 3 years rigorous imprisonment to six months rigorous
imprisonment. The Indian Constitution states that ‘there shall be no discrimination on the basis of
the sex of a person’ which is a Fundamental Right of the citizens, ‘The term’sex’ although refers
to the biological sex of a person as male or female, is broad enough to include sexual orientation
also in the present context.

Current Scenario

The Delhi High Court passed a judgment in favor of the LGBTs in the year 2009 in the landmark
judgment of NAZ Foundation v Government of N.C.T Delhi declaring Section 377 of the Indian
Penal Code which criminalizes homosexuality in India to be unconstitutional and violative of
Articles 14, 15 and 21 and read down the section, allowing consensual sexual activity between two
homosexuals above 18 years of age. The matter went to appeal to the Supreme Court of India
in Suresh Kumar Koushal and another v NAZ Foundation and Others[iv] where the Supreme
Court struck down the decision by the High Court in the NAZ Foundation Case. NAZ Foundation
case 1 did not just bring emphasis on discrimination against Lesbian Gay

Bisexual Transgender and Queer (hereinafter LGBTQ) community in India, but also fight for
developing a nation which the founding fathers of India dreamed of i.e., to build an ‘inclusive’ and
‘tolerant’ republic. Judgment of the Supreme Court to overrule Delhi High Court judgment which
declared Section 377 3 of Indian Penal Code as unconstitutional, a well-reasoned judgment and
was upholding equality for all, evoked a great deal of discomfort and bitterness in the public due
to its failure in upholding the interest and equal rights of the LGBTQ community as guaranteed
by the Constitution of India.

However, The landmark Supreme Court judgment, JUSTICE K S PUTTASWAMY (RETD.),

AND ANR. V. UOI and Anr. which declared privacy is a fundamental right of all Indians, has
also brought cheer to the gay and LGBT communities. The court said right to privacy is valid even
in the context of Section 377 --- a law that criminalises what was once seen as unnatural sex.
Sexual orientation, the court said, is an "essential component of identity" and the rights of lesbian,
gay, bisexual and transgender population are "real rights founded on sound constitutional
doctrine".

Elaborating on the concept of privacy, Justice DY Chandrachud, who was part of the nine-judge
bench that pronounced the verdict, said in his judgment: "Privacy includes at its core the
preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home
and sexual orientation... Privacy also connotes a right to be left alone."

A curative petition regarding validity of Section 377 is pending in the Supreme Court of India, but
There is very little scope now for those wanting to support Section 377. Invading the bedroom
can’t be considered reasonable restriction on the fundamental right to privacy.

Right to privacy has also been guaranteed under Article 12 of UDHR AND Article 16 and 17 of
ICCPR, which makes it binding on India to respect it.

Besides this, Article 25 of UDHR states, “Everyone has the right to a standard of living adequate
for the health and well-being of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his
control.”

Hence, it is the duty of the State to provide adequate medical support to its citizen without any
discrimination. According to Government reports, out of 2.5 million LGBTQ members, 7% are
HIV+ and most of them do not come out due to the fear of getting arrested under Section 377
which makes it very difficult for them or any activist to provide any medical help to them. Striking
down Section 377 will make it very easy to identify and provide medical help to the affected person.
Despite all these right being present in our constitution and international declaratons and treaties,
Homosexuality in India, is still covered under the blanket or taboo.

CONCLUSION

Consensual Sex between two adults is a private business and State should not regulate it in
any manner. The United Nations has been working with Member States to reject discrimination
and criminalization based on homophobia and transphobia. This discrimination against the
LGBTQ community has made them prone to many brutalities and abuses, both physical and
mental. Section 377 is a legacy of British rule and it is disturbing that a postcolonial democratic
state like India would hold on to colonial morality codes that blatantly violate human rights. India
should join countries like Australia and New Zealand that have already abolished this colonial-era
sodomy law that they too inherited, and take the lead on ending such discrimination. There must
be made a difference between Public morality and Constitutional Morality derived from
constitutional value which is based on shifting notion of right and wrong and only the latter
should have a say in deciding rights of any person. In fact, a large amount of public is now
in support of LGBTQ community and is ready to accept them. There are many activists
fighting for LGBTQ rights and the pride parades show the huge amount of support they
have. This shows that even Public or Popular morality is supporting the LGBTQ community.
Striking down Section 377 will not only give LGBTQ community the equal rights they are
promised by the constitution, but also stop, to a large extent, hate crimes toward them. For
larger good and for upholding constitutional values and human rights, efforts must be made
to strike out the 200 years old legislation which criminalizes consensual sex between two same
sex adults. If any morality that should be chosen for the interest of state, it must be
constitutional morality and none other.