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Special: Homosexuality is not crime

Context
There has been a long debate and fight for homosexuality over the last several decades, many arguments have been argued in favor and opposition. The recent decision of the Supreme Court for acceptance, security and respect for the gay community in society has certainly become a nazir. Now, gay sex in India is not in the category of crime. On September 6, the Supreme Court has ruled out homosexuality from the scope of crime while giving a historic judgment. Our constitution gives equal rights to all citizens. Keeping the fundamental rights in mind, the country’s highest court has ruled its historic decision on gay sex.
Background 
  • Section 377, also known as “unnatural offenses”, was enacted by colonial rule after the rebellion of 1857. 
  • In fact, they made laws for us based on their religious and cultural values. Then, in Christianity, homosexuality was considered a crime, whereas earlier people involved in gay activities were not punished in India. 
  • In 1861, the British made provision of punishment for sex between homosexuals in India, ranging from 10 years to life imprisonment. 
  • Under the pressure of church and Victorian ethics, laws that make homosexuality into the sixteenth century were abolished in Europe and America several decades ago, but this crime remained in other countries including India.
  • Unfortunately, a large part of society and its cultural exchanges have been tied to this approach. Ironically, in 1860, it took 157 years for Indian society to remove this section of IPC law brought by Lord Macaulay.
  • In the verdict, Justice Indu Malhotra said in his judgment that while granting relief to the members of the community and their families who suffered from boycott for centuries, the matter of delay should be recorded with regret in history.
Why is homosexuality not crime?
The Supreme Court, partially rejecting Section 377 of the 157-year-old Indian Penal Code (IPC), has said in its historical verdict that when two adults, regardless of gender, make a relationship with mutual consent, then it is a crime Can not be considered.
  • The Supreme Court said that the people of the LGBT community have got the right to equalize in the constitution as the other people
  • Constitution Bench headed by Chief Justice Deepak Mishra, in which Justice R.F. Nariman, Justice A.M. Khanvilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra, in one vote, decided that gay sex between adults is not a sexual offense by mutual consent.
  • The court said that due to the provision of section 377, such sexual relations under the purview of crime, the right to equality and dignity in the Constitution is abrogated.
  • The Supreme Court, in concert with the consent, excluded sex from the scope of crime, said that this provision is not irrational, sheer arbitrary and defensive.
  • The Supreme Court clarified in its judgment that if gay sex is formed without the consent of one of the two adults, then it will fall under section 377 and it will be punishable.
  • In the order given by the Constitution Bench in the 495 pages unanimously, the LGBT community has got constitutional rights similar to other citizens of the country.
  • Stating that sexual trends are biological and natural, the bench said that any kind of discrimination is a fundamental right to abate the fundamental rights.
  • The Court said that Section 377 is based on the social system running on the old path, whereas homosexuality is not a mental disorder, but it is a completely natural state.
  • In the order, the court said that as far as the consent of adults is concerned under Section 377, the consent of adults is in the purview of the crime, Article 14 (Right to equality), 15 (religion, race, caste, gender) Or the prohibition of discrimination on the basis of birthplace), 19 (the right to freedom) and 21 (protection of physical freedom).
  • However it has been clarified in the order that such consent should be automatically, which is completely voluntary and free of any kind of pressure or fear.
  • Morality can not be martyred on the altar of social morality and only constitutional ethics can be allowed under the rule of law.
  • The bench said that Section 377 is being used as a weapon to disturb the members of LGBT society, which culminates in discrimination.
  • The Supreme Court has said in the fresh order that the provision of establishment of unnatural sex related to animals and children in section 377 will be applicable as before. That is, having sex with children and animals will be in the same category of crime.
When the Supreme Court reversed its own decision
  • On July 2, 2009, hearing the petition of the Naz Foundation, the Delhi High Court had said in its judgment that if mutual consent between the two adults is settled in seclusion, then it will not be considered as a crime under Section 377 of the IPC. The court talked about the right to equality of all citizens.
  • In its historic judgment given by the Supreme Court on December 11, 2013, the decision to restore the law of punishment for life imprisonment in homosexuality was restored. 
  • The Supreme Court had dismissed the Delhi High Court’s decision, in which the consent of two adults in the mutual consent of gay sex was considered to be outside the category of crime. 
  • The Supreme Court had said that gay marriage can not be held as valid until Section 377 is stayed.
What is the Section 377 of the IPC?
  • Section 377 of the IPC is related to unnatural sex crimes. According to this, a person who has voluntarily intercourse with any person, woman or animal, will be treated as a criminal and may be sentenced to life imprisonment or imprisonment upto ten years and can be imposed.
  • The courts have explained Section 377 many times and the general conclusions arising out of those interpretations is that Section 377 prohibits punishing any act of non-reproduction sexual acts and sexual decoctions. 
  • In fact, in Section 377, non-reproduction sexual acts ie unnatural sex, such as anal sex, oral sex etc. are considered to be offenses and there is also a provision for penalization.
  • A petition was filed by the Naz Foundation in the Delhi High Court, in which it was asked that ‘Does Section 377 not abstain equality and fundamental rights given to civilians by the Constitution? If this is so, then why should it be declared unconstitutional and legal relations should be given to the relations of mutual consent of people of two equal sex. “
Awareness about gay rights in India 
The gay community has been a victim of discrimination all over the world. In many countries, fighting for their rights reached their work, but many countries have kept silence about gay rights for a long time.
  • The law of gay marriage was made in the Netherlands on April 1, 2001. The Netherlands became the first country in which gay marriage got legal recognition. This was the year when the debate over gay rights in the whole world reached the next stage.
  • In many countries, advocates of gay relations and sympathetic organizations made it quick to advocate for rights at their own level. Even in India, the exercise of raising awareness about homosexual rights began to climb.
  • In 2001, the demand for declaring Section 377 of the IPC, which declared gay sex as a crime in the Delhi High Court, was declared non-constitutional.
  • The social institution Naz Foundation said in its petition that section 377 is violating the fundamental rights of many people.
  • On this petition, the court had to decide whether Article 377 encroach on Article 21, 14 and 15 of the Constitution.
  • The matter was around 9 years in the Delhi High Court. Meanwhile, the court also asked the government to keep its side, in response to which the Union Health and Family Welfare Ministry gave its affidavit in favor of the removal of the section, then the Home Ministry lobbied to maintain section 377. 
  • In the case of the defendant, it was said that homosexuality is not a natural but a mental illness and it can be corrected.
  • On the other hand, the petitioners said that according to Article 15, no person can be discriminated against on the basis of gender, which includes the person’s sexual interest.
  • The petitioners said that Section 377 of the IPC also violates Article 21 of the Constitution in which every person has been guaranteed the right to live.
  • This right includes living a respectful life and the right to privacy and privacy.
  • The petitioners also expressed the possibility of encroachment on Article 14 of the Constitution, in which every person has the right to get full legal protection without discrimination, after the death of a deadly illness like AIDS, they can not get it.
  • In July 2009, the Delhi High Court gave the verdict in favor of the petitioner. The court said that we declare that the extent to which section 377 of the IPC criminalizes sexual relations created by consent by adult persons, violates Article 21, 14 and 15 of the Constitution.
  • This decision became the subject of discussion all over the country. Millions of people who support LGBT rights welcomed the decision.
  • But this case has reached the Supreme Court from Delhi High Court. In December 2013 the Supreme Court overturned the Delhi High Court’s verdict.
  • The court believed that Section 377 is somewhat unconstitutional, but still the Parliament has avoided changing it. That is, the Parliament does not want to remove it.
  • Contrary to the Delhi High Court’s decision, the Supreme Court admitted that Section 377 does not violate the fundamental rights because some of them can be controlled.
  • Along with the verdict of the Supreme Court of 2013, gay sex with consent for nearly four and a half years has again become illegal after legalization.
  • But on September 6, 2018, the Supreme Court has given homosexuality out of the scope of crime.
Attempts for the rights of homosexuals
Government and social forums have long been debating about the rights of homosexuals. There was also a serious debate about transgender in parliament. In a historical verdict of the Supreme Court in 2014, transgenders were recognized as third gender. At the same time there is also provision for reservation in jobs under OBC.
  • In December 2014, DMK MP Tiruchi Shiva in the Rajya Sabha introduced a bisexual person bill as a private bill.
  • In April 2015, the Rajya Sabha witnessed a historic moment on this issue. The House unanimously approved the bill.
  • Actually, this was the first time in 36 years when a non-government bill got the approval of the house. Earlier, only 14 non-governmental bills were passed.
  • There were 58 provisions in this bill, which included relevance of gender equality in society, protection of human rights, financial and legal aid, education and employment related training. 
  • The bill also mentions the establishment of bisexual privileged courts and national and state commissions. 
  • This bill of Tiruchi Shiva could not be discussed in the Lok Sabha but the Government brought its bill in the name of Right to Information Act, 2015 in the year 2015.
  • Ministry of Social Justice and Empowerment also seeks suggestions from the civil society on the bill. In April 2016, the draft bill was sent to the Finance and Law Ministry.
  • Bill got Cabinet approval in July 2016 and it was introduced in the Lok Sabha in August 2016. This bill has not been passed since the Lok Sabha recently.
  • Apart from this, on November 12, 2015 the government had issued a Transgender Policy. State policy for transgender for Kerala, 2015 called for the end to the gender minority group ending the tendency of social stigma.
What is the condition of homosexuality in the world?
The rights of the gay community were discussed not only in India but in other countries of the world for a long time. Now after the Supreme Court recognizes homosexuals in India, India has joined 125 countries where homosexuality is legally recognized. Although still in 72 countries it has been classified as crime.
  • Homosexuality is valid for adults in the US since 2013. Under the “do not allow, do not tell” policy created in September 2011, homosexuals have the right to work in the military services of the country.
  • In the year 2017, the American Supreme Court granted legal marriage to gay weddings. In addition, in many U.S. states, gay couples have been given the right to marry and settle their families.
  • In England and Wales from 1967, in Scotland in 1981, while in Northern Ireland, homosexuality has got legal recognition since 1982.
  • In 2005 the provision of providing identity to gay couples was made in Britain’s constitution.
  • In Germany, the Upper House of Parliament has passed a proposal to end discrimination against gay people. This proposal includes the marriage of gay couples and the right to adopt them. Earlier, the constitutional court of Germany has approved marriage to gay partner.
  • Germany has the facility to register gay partnerships.
  • In Denmark, gays have got wide rights. Here gay sex is legal since 1933. In 1977, the consent age for sexual relations was reduced to 15 years.
  • In 1989, the process of giving legal recognition to homosexuality began in Denmark. In this way Denmark was the first country to grant gay couples the status of married couple.
  • After this, in 1996, Norway, Switzerland and Iceland also considered gay relations legal.
  • In 2001 the marriage of gay couples in the Netherlands was given full marriages.
  • In Belgium in 2003 and New Zealand in 2004, gay marriage was legally accepted.
Status of Islamic and neighboring countries
In countries like Iran, Saudi Arabia and Sudan, there is a provision of death penalty for homosexuality. Homosexuality is also crime in neighboring countries of India-Pakistan, Afghanistan, Bangladesh, Sri Lanka, Indonesia, Mauritius and Singapore. 
  • In Islamic countries, Turkey has recognized the rights of homosexuals and transgenders. Here in the year 1858, same sex relations have received recognition from the time of the Autumn Khilafat. However, in general life, transgenders are discriminated against.
  • Similar sex relations were recognized in Bahrain in 1976. However, wearing dresses like boys is still forbidden to be dressed like girls.
  • In the case of rights of the LGBT community, Jordan’s constitution is considered quite dynamic. Here in 1951 same sex relations got legal recognition.
  • Adoption of homosexuality, marriage of gay couples and child adoption in South Africa is legally valid. Mali is one of the select African countries where LGBT relations have got legal status.
  • In neighboring China, homosexuality was legalized in 2002, although gay relations in Pakistan do not have legal or social recognition.
  • There is no law for the rights of homosexuals in Russia, and discrimination here is commonplace with the transenders. Apart from this, there are many movements in the world about the rights of homosexuals. 
LGBT and related issues 
After the Supreme Court order, gay relations have got legal recognition in the country, but there are also several legal issues, for which people claiming protection for gay rights will have to fight even more effectively, such as,
  1. So far, homosexuals do not have the right to marry in the law.
  2.  

  3. Children do not have the right to adopt.
  4.  

  5. The law is not clear in any way in respect to rights of land and other property of gay peers.
Conclusion
The social issues of the homosexuals have always been overlooked in Indian society. After the Supreme Court’s decision, there is a happy atmosphere among the people of the LGBT community. People also believe that after this decision people of such community will get more opportunities to connect with mainstream society. On other aspects, their fight will also be strengthened. At the same time, with the social fabric of the country, people will change their mentality towards the LGBT community.
Prior to the Supreme Court’s decision on homosexuality, the debate over the rights of opposite sex people in the country for a long time, where the claim of the government has always been that the Constitution gives equal status to all persons, in reality, Are becoming victims of discrimination. However, apart from its opposition, there have been considerable arguments in support.
After obtaining legal recognition of gay sex, Supreme Court will now stop questioning that Section 377 violates the fundamental rights of the Constitution. But after fighting a long fight to get the right to equal rights, this community will still have to walk far enough to get social recognition.
Updated: January 3, 2019 — 5:58 am

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