Recognition of the LGBT rights has been in controversy, worldwide, for one reason or the other. LGBT rights have made significant progress over the past few years needless to say only in some parts of the world. In many countries, they still face widespread stigmatization and persecution, and in a surprising number of these countries the penalty for same-sex relationships is prison or even death. According to Equaldex, a collaborative LGBTI rights website, there are 73 countries – mostly in the Middle East, Africa and Asia – where homosexual activity between consenting adults is considered illegal. There are currently eight countries in which homosexuality is punishable by death, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s (ILGA) latest State-Sponsored Homophobia report (https://ilga.org/state-sponsored-homophobia-report).These are Iran, Sudan, Saudi Arabia and Yemen; parts of Somalia and northern Nigeria, under sharia law. The death penalty is applied by non-state actors, including Islamic state, in Syria and Iraq. In theory the death penalty could be handed down under Sharia law in Mauritania, Afghanistan, Pakistan, Qatar and the United Arab Emirates, though it does not appear to have been implemented, the report says.

However, the views and public opinions are changing and the rights of LGBTI are getting recognized in many countries. As of 2018, same-sex marriage is performed and recognized by law (nationwide or in some parts) in the following countries viz. Argentina, Australia, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, the United Kingdom, the United States and Uruguay. In June 2015, the Supreme Court of United States ruled in the landmark civil rights case of Obergefell v. Hodges that the fundamental right of same-sex couples to marry on the same terms and conditions as opposite-sex couples, with all the accompanying rights and responsibilities, is guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Decided on June 26, 2015, Obergefell judgment held that all states should issue marriage licenses to same-sex couples and to recognize same-sex marriages performed in other jurisdictions as well. This established same-sex marriage throughout the United States and its territories. Australia became the second nation in Oceania to legalize same-sex marriage when the Australian Parliament passed the law on 9^th December 2017.The law has now removed the ban on same-sex marriage which existed earlier.

India has also been in the center of debate on recognizing the rights of LGBTI especially in view of the existence of Section 377 of the Indian Penal Code, 1860. The provision of Section 377 was modelled on a 16th-century British law called the Buggery Act, which was the first such civil law that criminalized certain kinds of sexual intercourse. Section 377 i.e., “Unnatural Offences” of the IPC reads as follows:-

                “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”.

In a historic judgement delivered on 2 July 2009, Delhi High Court (Naz Foundation vs Govt. of NCT of Delhi, 160 Delhi Law Times, 277) held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. Thus, Section 377 IPC was turned down as unconstitutional.

The court held-

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

However, the above decision of the Delhi High Court was later overruled by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation (Civil Appeal No. 10972 of 2013) on 11^th December, 2013 , in which the 2 judge bench comprising of Justices G. S. Singhvi and S. J. Mukhopadhaya reinstated Section 377 of the Code stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse “against the order of nature“. In its judgment the bench stated —

“In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”

The court, however, noted that this is a matter which must be debated and decided by the Parliament and Indian Judiciary should not decide the matter.

The above decision of the Hon’ble Supreme Court was widely criticized being contrary to Article 14, 15 and 21 of the Indian Constitution. There was widespread protest from different quarters – gay community, social activists, film personalities and even politicians. Even the United Nation chief BanKi-moonstressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.

Finally the Supreme Court of India decided to revisit this judgment after several curative petitions were filed against it, in 2017. On 6^th September, 2018, constitutional bench comprising of then Chief Justice Dipak Misra, Justice Rohington Fali Nariman, Justice A. N. Khanwilkar, Justices D. Y. Chandrachud and Justice Indu Malhotra,  in Navtej Singh Johar v. Union of India (WP (C) No. 76 of 2016), overruled the 2013 decision and decriminalized homosexuality. The Court declared portions of Section 377 relating to consensual sexual acts between adults of same sex unconstitutional in a unanimous decision. However, portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, remained in force. The court ruled that LGBT in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. This included “the choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation”. The judgment also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination.

The Supreme Court also laid emphasis on the consent of an adult. It said that the offence of “carnal intercourse against the order of nature” is not defined in Section 377 IPC. It is too wide, and open ended, and would take within its sweep, and criminalize even sexual acts of consenting adults in private. Consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships. The choice of LGBT persons to enter into sexual relations with persons of same sex is an exercise of their personal choice and an expression of their autonomy and self-determination. Section 377 insofar as it criminalizes voluntary sexual relations between LGBT persons of the same sex in private, discriminate against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution.

Another important aspect of this judgment was the emphasis on the fundamental rights granted to the citizens of India under the Indian Constitution. The court took the view that even if LGBT constituted a small fraction of India’s population, it is no ground to deprive them of their Fundamental Rights granted by Part III of the Constitution and like any other citizen of the country they are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19 and 21.

The Supreme Court once again demonstrated that it is the custodian of Indian Constitution and refuted its earlier decision in Suresh Kumar Kaushal Vs Naz Foundation which had taken the view that Indian judiciary should not intervene in such matters which can best be decided by the Indian Parliament. The Court in Navtej Singh Johar v. Union of India held that once a violation of the Fundamental Rights of a citizen is brought to its notice, it cannot remain a mute spectator and will not wait for any legislative enactment to be made as it is its constitutional duty to review the provisions of the law and strike it down to the extent of its inconsistency with the Constitution.

It is correct to mention here that it was long awaited decision in the right direction in consonance with the changing times. As it has been rightly said that law cannot remain static and has to change with the changing trend and changing need of the society, the judgment has been praised world over as a landmark decision recognizing the identity of LGBT. The court said –

“……the identity is pivotal to one’s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution.”

The Supreme Court concluded by saying that LGBT persons deserve to live a life unshackled from the shadow of being “apprehended felons”.

We live in the 21st century where law is developing day by day for and it is the time to escape from the chains of belief and embrace the progressive laws. Homosexuals do not create destruction in the society; criminals do. Everyone in the society has an equal right to life per their individuality. No one should force one to change their identity. Homosexuals are not pernicious to the society as consent is involved and activities take place between two consenting adults. No third person is harmed. But talking about high rated crimes such as rape does not involve consent and instead of criminalizing sexual activities between consenting adults and punishing the innocent, the government should be focusing on punishing rapists and other criminals.

BY AKSHAT AMITESH