Homosexuality

Homosexuality refers to attraction between people who are the same sex. It comes from the Greek word
homos, meaning “the same.” It is a sexual orientation, as opposed to a gender identity such as male,
female, and non-binary
Introduction
Is homosexuality legal in India? Well, a pretty straightforward answer to this question would be, “Yes,
homosexuality is legal in India.” But the struggle to get it was not as easy as it sounds. From a position
of complete lack of rights, the Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (hereinafter
referred to as the LGBTQI) community has waged numerous societal wars to achieve freedom and
treatment as equal citizens or human beings. Over the ages, social reform movements centred on
LGBTQI rights have earned this persecuted group of people close to equal and equal rights in many
jurisdictions, and the reformation movements are currently going on around the world. The movement
has begun to capture the imagination of decriminalisation of homosexuality, the right to family, and, in
some countries, even the right to adoption, ranging from basic dwelling rights, to access to public
employment, to the right to self-determination of one’s own sexual identity. Most civilisations’
religions, customs, and cultures fought reform initiatives for LGBTQI with the stereotypes they are
always armed with.
History of homosexuality in India
Let us begin our discussion on the legality of homosexuality in India by going through its history first.
It is said that homosexuality has been recognised in India since ancient times. In fact, there are traces
of homosexuals being respected in society in mythology as well. According to the legislative history of
the issue of homosexuality, the Fleta, written in 1290, and the Britton, written in 1300, are the first
records of sodomy (anal sexual behaviour with another person) as a crime in the Common Law of
England.
Both scriptures advocated for the burning to death of sodomites. The Buggery Act of 1533, which
Queen Elizabeth I reenacted in 1563 and which ultimately served as the foundation for the eventual
criminalization of sodomy in the British Colonies, later made sodomic acts punishable by hanging.
Later, in 1817, oral-genital sex was dropped from the concept of buggery. And in England and Wales,
the death sentence for buggery was officially abolished in 1861. It was believed that intercourse could
only be done for the purpose of conception and anything done beyond that would be a crime.
In India, Lord Macaulay drafted the Indian Penal Code (IPC), which was first implemented in British
India in 1861. Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section
377 of the IPC. Section 377 IPC is included in this Chapter under the sub-chapter “Of Unnatural
Offenses.” This is how homosexuality got penalised in India by the Britishers.
It’s noteworthy that Lord Macaulay’s draft of Section 377 differed significantly from the final version
of Section 377. Lord Macaulay’s decision to punish touching another person for the purpose of
satisfying ‘unnatural lust’ without their “free and intelligent consent” with a term of imprisonment
extendable to life (but not less than seven years) is noteworthy for the era in which he lived, as opposed
to his decision to punish the same offence when consensual, which would result in a maximum sentence
of fourteen years in prison (but not less than two years). Even in this most conservative era in English
history, Lord Macaulay understood that ‘unnatural lust’ might be punished with a lighter penalty if it
was done with consent.
Given that the Indian Penal Code has been in existence for more than 150 years, it is shocking that only
a few changes have been made to it. Early in the history of this nation, the 42nd Law Commission
Report (1971) did not suggest that Section 377 be changed or repealed. However, revisions made to the
preceding sections, which made it plain that anal intercourse between consenting adults, whether same-
sex or otherwise, would not be punished, led B.P. Jeevan Reddy, J.’s Law Commission Report of the
year 2000 (the 172nd Report) to suggest its elimination. But thanks to the transformative
constitutionalism policy followed by our Indian judiciary, there has been a great development with
regard to the rights of homosexuals in the country. Now let us discuss them further in the article.

HOMOSEXUALITY- THE THIRD SEX

Popular belief and study of the behavioural trends of the homosexuals tell us, homosexuality is a
romantic and physical attraction of a person towards another of the same sexual orientation. Scientists
all over the world are not at consensus about the exact causes of homosexual behaviour in humans.
Homosexuality, often called the third sex, has an unsettled legal and social status in India. While, we
see rallies and public protests against the oppression of homosexuals in the society, we also see the
homosexuals being looked down upon by a large number of members of the society. The Indian society
appears ambivalent, being tugged between popular views and the call of their own conscience. These
societal and legal perspectives in turn, have a plausible psychological impact on the members of the
homosexual community, also called the LGBT (lesbians, Gays, Bisexuals, transgenders) community in
the local jargon.
What is Section 377 of the Indian Penal Code
As noted above, Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates
Section 377 of the IPC. Section 377 reads as follows:
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 with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section
Development through judicial pronouncements
Naz Foundation v. Government of NCT of Delhi (2009)
The case of Naz Foundation v. Government of NCT of Delhi (2009) is one of the most influential
decisions made by the Delhi High Court, comprising the bench of Chief Justice Ajit Prakash Shah and
Justice S. Muralidhar, as it addressed a number of issues pertaining to the existence of Section 377 of
the IPC in today’s time. The Court tested the impugned provision’s compliance with Articles 14, 15, 19,
and 21 of the Indian Constitution in addition to determining whether it is constitutionally valid.]
The Court observed that to ensure that the purpose of the Constitution’s rights is met, the constitution
must be interpreted in a dynamic and progressive manner. Such an interpretation necessitates
prioritising the constitutional commitment to provide all constitutional rights to all people, including
LGBT people.
The Court also ruled that sexual preferences are protected by the individual’s right to dignity and privacy
since Section 377 directly infringes on the aforementioned right, it breaches the core of Article 21. In
order to address the question of whether Article 14 had been violated, the Court conducted the tests
outlined by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952). In its ruling, the
Court noted that the contested statute created an irrational differentia and that there was no necessary
connection between preventing child sexual abuse or enhancing public health and criminalising
consenting adult sexual relationships.
The Court then went on to define the term ‘intercourse’ in Article 15 to have a considerably larger
circumference in addition to ‘sexual orientation,’ going beyond just indicating gender. The Court went
on to conclude that Section 377 is prima facie discriminatory towards sexual minorities and is
consequently in violation of Article 15 based solely on this view. The Court considered it unnecessary
to consider whether Article 19 was violated because the disputed statute also violated Articles 21 and
14.
The Court also reflected concerns about the earlier days of Section 377 because of its stigmatising
consequences of attaching the identity of hijra to criminality. The Court discussed the criminalisation
of identity merely because they belonged to a particular community under the Criminal Tribes Act of
1871, after citing evidence that Section 377 was used to assault and harass a person. Although the Court
did not invalidate Section 377 in its entirety, the Section was swiftly ruled unlawful as it made adult
consensual sexual actions in private illegal. The Court stated in the decision that the ruling might stand
until Parliament decided to change the law.

Suresh Kumar Koushal v. Naz Foundation (2013)

This case was heard in the Supreme Court of India in an appeal against the decision made by the Delhi
High Court in Naz Foundation v. GOI. Surprisingly, in this case, the Supreme Court struck down the
ruling given by the Delhi High Court.
The petitioners contended that Section 377 does not appear to mention or categorise any specific group
or gender and is therefore not in violation of Articles 14 and 15 and 21. The Court agreed with their
arguments and decided that Section 377 does not violate Articles 14, 15, or 21 and that carnal
intercourse, as the petitioners meant and defined it to mean, should be penalised.
According to Justice Singhvi, Statute 377 is pre-constitutional legislation and had it violated any of the
rights protected by Part III, Parliament would have long ago recognised this and removed this Section.
This justification led him to declare the clause to be constitutionally legitimate. The Delhi High Court’s
decision to read down the Section in the aforementioned case was incorrect because no part of the
Section can be severed without affecting the Section as a whole, and that Section also happens to be the
only law that governs cases of paedophilia and tyke sexual abuse and assault. He also claimed that the
doctrine of severability and the practice of reading down a particular Section flowed from the
presumption of constitutionality. Therefore, the Supreme Court determined that Section 377 of the
Indian Penal Code does not have any constitutional flaws and leaves it up to the appropriate legislative
body to decide whether it would be desirable and legitimate to remove the Section from the statute book
or adjust it to permit private consensual sexual activity between two adults of the same sex.

National Legal Services Authority v. Union of India (2014)

In 2014, the Supreme Court in this landmark case gave legal recognition to the ‘third gender.’ The Court
observed that for the purpose of preserving the rights under Part III of our Constitution and the
regulations passed by Parliament and the state legislature, ‘Hijras’ and ‘Eunuchs’ should be considered
as ‘third gender’ in addition to binary gender. The right of transgender people to choose their own gender
is also respected, and the Central and state governments were asked by the Supreme Court to recognise
transgender people’s gender identities, whether they identify as male, female, or as a third gender.
The Central and the state governments were directed by the Supreme Court to take action to treat them
as socially and educationally disadvantaged classes of citizens and to consider all forms of racial and
ethnic discrimination when considering them for admission to educational institutions and positions in
the public sector. Further, the Court observed that the challenges that Hijras/Transgender people
encounter, such as fear, embarrassment, gender dysphoria, societal pressure, depression, suicidal
thoughts, and social stigma, should be taken seriously by the Central and state governments.

K.S. Puttaswamy v. Union of India & Ors. (2017)

In K.S. Puttaswamy v. Union of India & Ors. (2017), a 9-judge Bench of the Hon’ble Supreme Court
concluded that the dignity of an individual, human equality, and the search for liberty are the
foundational pillars of the Indian Constitution. The Supreme Court went on to say that dignity is a
constitutional ideal enshrined in the Preamble. The right to privacy, self-determination and autonomy
are all facets of the right to dignity protected by the Indian Constitution. The Court also stated that
family, marriage, procreation, and sexual orientation are all important aspects of an individual’s dignity.
We also need to emphasise the lack of substance in the contention that privacy is a luxury for the few,
as quoted by J. Chandrachud, speaking for the majority in Justice K.S. Puttaswamy v. Union of India.
He emphasised that everyone in society, regardless of social class or economic condition, has the right
to privacy, which preserves intimacy and autonomy. It is privacy, as a fundamental and core
characteristic of life and human liberty, that allows a person to resist a forced sterilisation programme.
However, if the state were to establish mandatory drug trials of non-consenting men or women, privacy
would be a powerful guarantee. The sanctity of marriage, the freedom of procreation, the choice of
family life, and the dignity of being are all issues that affect everyone, regardless of social class or
economic status. The pursuit of happiness is based on self-determination and dignity. Both are crucial
aspects of privacy that make no distinction between an individual’s birthmarks.
The right to privacy guaranteed by Article 21 includes privacy in family life. The right to marry queer
or non-heterosexual people, which is recognised by law in the United States, was also cited in this
Hon’ble Supreme Court decision, where the decision to marry someone is part of the foundation of the
family and thus falls within the right to privacy in family matters.
This case is important to be mentioned here because even though it did not legalise homosexuality in
the country per se, it was the first judgement ever to state that sexual orientation is an inclusive part of
the right to privacy and thus protected by the Indian Constitution.

Navtej Singh Johar v. Union of India (2018)

September 6, 2018, is a historic day for India as it is on this day that the Supreme Court gave legal
recognition to the LGBTQI community by legalising consensual sexual intercourse between individuals
of the same sex through the judgement of Navtej Singh Johar v. Union of India (2018). Let’s understand
the ruling in this case briefly:
Facts of case
As noted above, the Supreme Court’s judgement in Suresh Kaushal reversed the Delhi High Court’s
judgement in Naz Foundation. The Supreme Court’s decision was contested in a number of curative
petitions. While the curative petitions against Suresh Koushal were still pending, five members of the
LGBTQ community — a well-known Bharatnatyam dancer, Navtej Singh Johar; restaurateurs Ritu
Dalmia and Ayesha Kapur; hotelier Aman Nath; and media personality Sunil Mehra, filed a new writ
petition calling for the repeal of Section 377 of the IPC insofar as it criminalised consensual sex.
Even though the curative petitions were still pending, the Supreme Court on January 5th, 2018,
constituted a Constitution Bench to hear the challenge against Section 377 in its entirety. This might be
a result of the findings reached in the nine-judge decision in Puttuswamy’s case, which suggested that
the rationale and judgement in Suresh Koushal’s case were fundamentally flawed. This case was heard
by a five-judge panel consisting of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y.
Chandrachud, R.F. Nariman, and Indu Malhotra beginning on July 10, 2018.
Key issues
Whether Section 377 of the Indian Penal Code violates Article 19(1)(a) by violating the fundamental
right to expression as it criminalises the basic right to express the sexual orientation of persons
belonging to the LGBTQI+ community?
Was the rationale given by the Supreme Court in its own judgement in the Suresh Kaushal case correct?
Whether Section 377 is violative of Articles 14 and 15 as it allows discrimination against LGBTQI on
the basis of their “sexual orientation” and “gender identity”?
Whether Section 377 violates the right to autonomy and dignity of LGBTQI people provided under
Article 21 by penalising private consensual acts between same-sex persons?
Important observations by the Supreme Court
Transformative power of the Constitution and constitutional morality
The Court observed that there exists a right to love a person of one’s choice. It is a desire for everyone
to realise their constitutional, human, and humane rights as well as their equal citizenship and just,
humane, and caring existence. Regarding the issue of the constitutionality of Section 377, the Court
held that its effects extend far beyond the absorption of gays into the LGBT community or anybody else
in a similar situation as fully equal citizens. It also includes inter-caste and inter-community interactions,
which society aims to prevent. In addition to providing a minority group with their proper place within
the constitutional framework, the preservation of LGBT people’s rights and those of anybody else in a
similar situation also speaks to the kind of nation we want to live in and what that means for the majority.
Section 377 of the IPC is based on moral principles that are incompatible with a constitutional system
where liberty must triumph over prejudice and the mainstreaming of culture. Above all else, our
Constitution is a reflection on accepting diversity and was created with the goal of fostering an inclusive
society that accepts a variety of lifestyles. The order of nature that Section 377 refers to includes intimate
conduct that the social order regards as unpleasant as well as non-procreative sex. What ties LGBT
people to couples that value one another regardless of caste or community is the fact that each of them
is challenging established societal hierarchies while exercising their right to love at great personal peril.
Since the constraints imposed by systems like gender, caste, class, religion, and community are seen as
part of the order of nature rather than just the prohibition of non-procreative sex, the right to love
becomes a fight for everyone, not only for LGBT people.
The Court further held that the effects of Section 377 go well beyond just decriminalising some
behaviours that were forbidden by colonial law; they also affect people’s very identities, existence, and
right to equal and full citizenship.
Availability of various rights enshrined under the Indian Constitution
In accordance with Articles 14, 15, 19 and 21 the rights to sexual identity, sexual orientation, freedom,
sexual autonomy, sexual privacy, sexual expression, choice of partner/sexual partner, and sexual health
are recognised as fundamental rights. The Court ruled that understanding contemporary ideas of
sexuality and sexual identity requires understanding the shift from reproductive/procreative instinct to
erotic desire and emotional intimacy. This is due to the blurry lines between homosexuality and
heterosexuality, which may even be an old myth or creation given how fluid sexual identities are today.
According to the Court, homosexuality is neither a mental illness nor a disorder. It is an accepted and
common form of human sexuality.
Difference between Section 375 and Section 377 of IPC, 1860
The element of consent is where Section 375 and Section 377 differ most. While Section 377, on the
one hand, criminalises all sex between two adults, whether heterosexual or gay, regardless of consent,
on the other hand, Section 375 recognises that the absence of deliberate and informed consent qualifies
a heterosexual act as rape. Therefore, consensual heterosexual relationships between adults are not
illegal under Section 375, but consensual carnal relationships between adults who identify as LGBT are
illegal under Section 377.
The Court observed that Section 377 declares all forms of non-procreative sexual behaviour to be
unlawful and treats them as unnatural without taking consent or harm into account. It makes a distinction
between homosexuals and heterosexuals. It is saddening to see that even though the LGBT community
also has the same human, fundamental, and constitutional rights as other people, it is treated unfairly
and as a different class of individuals. When other penal statutes like Section 375 IPC and the Protection
of Children Against Sexual Offences (POCSO) Act, 2012 punish non-consensual carnal intercourse, the
classification selected by Section 377 has no rational relationship to the goal it aims to achieve.
Judgement of the Supreme Court
In this judgement, Section 377 of the IPC was found to be unconstitutional by the Supreme Court of
India because it criminalises adults’ consensual sexual acts, regardless of whether they are heterosexual,
homosexual, members of the lesbian, gay, bisexual, or transgender (LGBT) community, or anyone else
in a similar situation. The Section was held to violate Articles 21, 14, 15, and 19 of the Indian
Constitution. According to the Court, the LGBT community and those in comparable situations are
entitled to the same human, constitutional, and fundamental rights as everyone else. However, the Court
held that any act listed in Section 377 that is performed between two people without one of them having
given consent, or any type of sexual interaction with an animal, would be a criminal offence. Lastly, it
was held that the two-judge Supreme Court bench ruling in Suresh Kumar Koushal (2014) is
overturned.
Development post decriminalisation of homosexuality
The Transgender Persons (Protection of Rights) Act, 2019
In the aftermath of the two landmark rulings, the NALSA judgement (2014) and the Navtej Singh Johar
judgement (2018), in 2019, Parliament passed a law called the Transgender Persons (Protection of
Rights) Act, 2019. This is the first law established by the Parliament to protect transgender people’s
rights and eliminate all types of discrimination against them in the country. Let us go through a few key
provisions of this Act:
Transgender definition
Section 2(k) of the Act recognises a transgender person as someone whose gender does not correspond
to the gender assigned at birth. It encompasses those who identify as transgender, intersex, genderqueer,
and with socio-cultural identities like kinnar and hijra.
Prohibition against discrimination
Section 3 of the Act prohibits all persons and corporations from discriminating against a transgender
person on the below-mentioned grounds:
• Discrimination in educational establishments.
• Discrimination in employment.
• Discrimination in healthcare services.
 • Discrimination with regard to access to and enjoyment of goods, facilities, services, etc. that
are available for the public.
• Denial of the right to movement.
• Denial of the right to reside, rent, or otherwise occupy any property.
• Discriminating an opportunity to hold public or private officers.
• The denial of admission to a public or private facility where a transgender person may be in
charge or custody.
Obligations on the government for welfare measures
The Act imposes certain obligations on the government to ensure due welfare measures are being taken.
It states that the appropriate government will take action to ensure transgender people’s full inclusion
and engagement in society. Additionally, it must implement programmes that are transgender-sensitive,
rescue and rehabilitate them, provide them with self-employment and vocational training, and
encourage their participation in cultural events.
The National Council for Transgender Persons (NCT)
Section 16 of the Act states that a National Council for Transgender Persons (NCT) shall be constituted
by the Central Government through notification. On the other hand, Section 17 states the functions of
the Council. The Council is supposed to provide advice to the central government and keep a watch on
the results of transgender-related projects, laws, and regulations. Additionally, it will also have to
address the complaints of transgender people.
Offences and penalties
Section 18 of the Act imposes six-month imprisonment, which may be extendable to two years or with
a fine. The following are the offences recognised by the Act:
1. Any act of forced or bonded labour.
2. Any kind of denial to a transgender person of the use of public place.
3. Forceful removal of a transgender person from their household or village.
4. Any kind of physical, mental or emotional abuse caused to the transgenders.
Arun Kumar and Sreeja vs. The Inspector General of Registration, Chennai (2019)
It was decided in the case of Arunkumar v. Inspector General of Registration (2019) that transgender
people have the right to marry under Article 21 of the Indian Constitution and that the term ‘bride’ under
the Hindu Marriage Act, 1955, includes transgender persons who identify themselves as women. The
Madurai Bench of the High Court of Madras held that a marriage between a man and a transwoman,
both professing the Hindu religion, was valid under the Hindu Marriage Act, 1955. The Court upheld
Ms. Sreeja’s self-identification as a woman and acknowledged her right to do so, as well as the rights
of other intersex and transgender people who identify as women, to be included in the term ‘bride.’ It
was observed that the state’s refusal to register her marriage constituted a breach of her fundamental
rights.
Ms. S. Sushma & Anr. vs. Commissioner of Police, Greater Chennai Police 2021
This 2021 case by the Madras High Court is a landmark decision which shows the positive impact of
the Navtej judgement. This is a first of its kind case where the judge himself went for a counselling
session to understand same-sex relationships. The judge said that he needs to be fully ‘woke’ on this
aspect for the judgement to come out from his heart rather than his head. The Court passed various
guidelines in this judgement to ensure that there is a rightful implementation of the Navtej judgement.
1. The Union and state governments have been ordered by the Madras High Court to take action
to prevent attempts by medical and healthcare professionals to ‘cure’ or alter the sexual
orientation of members of the LGBTQIA+ community. The Court has further ordered that
appropriate measures, including the revocation of the professional’s licence to practise, be taken
against anyone involved in conversion ‘treatment’ in any way.
2. If the police receive a complaint against a girl, woman, or man, and if an additional inquiry
reveals that the individual against whom the complaint is filed is a consenting adult who belongs
to the LGBTQI community, the police must immediately close the complaint without harassing
the individual in any way.
3. The Court directed the Ministry of Social Justice and Empowerment to publish a
comprehensive list of NGOs who are working on LGBTQI issues on its website.
4. Further, these listed NGOs are required to maintain confidentiality and to submit aggregate
annual reports to the Ministry.
5. The LGBTQI community’s problems shall be addressed by offering financial assistance,
counselling, or legal assistance with the aid of DLSA or any other support. The assistance of
law enforcement agencies is available for resolving issues encountered by community members
and for crimes perpetrated against members of the LGBQTIA+ community.
6. It is necessary to make appropriate arrangements to handle the accommodation issue.
According to the Court, the existing housing options (stay homes, Anganwadi shelters, and
Garima Greh) were only able to offer shelter, food, medical care, and recreational amenities;
however, the Court ordered that following the issuance of this order, such homes must also
support the LGBQTIA+ community’s capacity building and skill development.
7. Further any other initiatives and policies necessary to end prejudice against LGBQTIA+ people
must be adopted, and they must be developed with the assistance of other ministries and
departments as well as the Union and state governments.
8. The Hon’ble Court recommended a number of awareness campaigns for various groups,
including parents of LGBQTIA+ community members, DLSA and SLSA, the court, physical
and mental health experts, educational institutions, and healthcare staff.
It is important to note that this is just a suggestion, and thus the list is merely illustrative and not
comprehensive.
Queerala & Anr. v. State of Kerala & Ors (2021)
The Kerala High Court recently ordered the State administration to create regulations against the
allegedly forced conversion therapy given to members of the LGBTQI+ community by State-licensed
medical professionals. The State government was ordered by the Court to investigate the situation and,
if required, form an expert committee to research it. Based on this study report, the State had five months
to draft guidelines and submit them to the Court.
The decision was made in response to a petition filed in Kerala by a recognised LGBTQI community
organisation and a transman who claimed to have been the victim of coerced conversion therapy.
After the Navtej Singh Johar judgement, various high courts recognised the legitimacy of non-
heterosexual relationships and marriage partners and granted them habeas corpus protection.
The following is an illustrative list of such cases:
1. Sadhana Sinsinwar & Anr. v. State (2018).
2. Paramjit Kaur and Anr. v. State of Punjab (2020).
3. Vanitaben Damjibhai Solanki v. the State of Gujarat (2020).
4. Bhawna & Ors v. State of NCT (2019).
5. Chinmayee Jena @ Sonu Krishna Jena v State of Odisha (2020)
National Medical Commission ban on conversion therapy
With the National Medical Commission (NMC) designating conversion therapy as “professional
misconduct” on August 25, 2022, and authorising State Medical Councils to take disciplinary action if
the guideline is broken, another layer of prejudice against the LGBTQIA+ population is being
eliminated. Particularly when they are young, members of the LGBTQI community or people of any
other orientation are frequently forced to modify their sexual orientation or gender identity through
conversion or “reparative” therapy. Therapy can take many different forms, including exorcism,
electroshock therapy, psychosomatic drug use, and psychiatric care. Trauma from this can result in drug
addiction, sadness, anxiety, and even suicide.
The Madras High Court had ordered the NMC to publish an official notification classifying conversion
treatment as wrong under the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002. If the Supreme Court’s repeal of Section 377 of the Indian Penal Code in 2018 was
the first step toward decriminalising homosexuality, the NMC’s notice is also a modest step in that
direction. But much more work needs to be done if we want the LGBTQAI+ community to feel safer.
There should be clarity regarding what action would be taken against quacks, psychiatrists, and doctors
accused of providing reparative treatment and the penalties they will face, taking a cue from nations
like Canada, which has outlawed conversion therapy. Education needs to lay the foundation. In addition
to legislation that is more suited to the demands of a varied community than the Transgender Persons
(Protection of Rights) Act, 2019, the transformation must occur on a societal level.

Karnataka government’s decision on reservation for transgenders

The Karnataka Government has determined that among the transgender applicants in each category of
General Merit, SC, ST, and in each of the OBC categories, 1 percent of the vacancies to be filled in any
services or posts by the State government will be provided.
The Karnataka government has submitted in a memo before the Karnataka High Court that the State of
Karnataka has initiated steps to change the Karnataka Civil Services (General Recruitment)
Regulations, 1977.
The memo was submitted by the government during the hearing of a petition from Sangama, an
organisation that works to advance sexual minorities, sex workers, and HIV-positive individuals.
The petitioners argued that the state only identifies ‘Men’ and ‘Women’ as the genders that can apply
for the openings in its appointment circular, calling for filling out the vacancies, citing the Supreme
Court’s decision in the case of NALSA v. Union of India (2014). The age, weight and other data are only
provided for ‘Men’ and ‘Women’ separately in the contested notification, with complete disregard for
the ‘Third Gender.’
Is same-sex marriage legal in India
As we have discussed above, there has been a great development in India with regard to LGBTQI rights.
As a result, in an honest effort to induce legislative reform, a series of petitions have been submitted in
different High Courts of the nation, questioning the non-inclusion of marriage rights for LGBTQ+
couples in various statutes, ranging from the Hindu Marriage Act of 1955 to the Foreign Marriage Act
of 1969.
The Special Marriage Act of 1954, as well as its regulations, are determined to be discriminatory
because they only recognise marriages between people of the opposite sex. Though the Act’s text does
not specifically forbid homosexual partnerships, its terminology in Section 4 and Schedules 2 – 4 has a
heterosexual undertone, as they depict marriage as a practice between a man and a woman or between
a bride and a groom. This is especially true because of the Forms mentioned in the bare Act to Schedule
Nos. 2 – 4 of the Act, which specify the format of the “Notice of Intention to Marry,” the declarations
to be made by the parties to the marriage, and the marriage certificate, all employ heterosexual
terminology. As a result, a homosexual cannot file for marriage solemnisation or registration under the
law.
The institution of marriage confers particular rights and privileges on those who are married in society,
and because of the aforementioned exclusion, homosexual couples are denied the same rights and
privileges. Being married gives you the right to maintenance, inheritance, joint bank accounts, lockers,
and the ability to name each other as a nominee in insurance, pension, and gratuity papers, among other
things. Due to their exclusion from the institution of marriage, all of these are inaccessible to the
LGBTQ community, making the exclusion even more discriminatory.

Violation of Article 21 of the Constitution

1. Non-recognition of same-sex marriages violates the right to marry a person of one’s choice as
guaranteed to an individual in the cases of Common Cause v. Union of India (2018), Shafin
Jahan v. Ashokan K.M (2018), and Shakti Vahini v. Union of India (2018).
2. Non-recognition of same-sex marriages violates the same-sex couples’ right to dignity as LGBT
people and as a same-sex couple as guaranteed in the Puttuswamy and Navtej Singh
Johar judgements.
3. Non-recognition of same-sex marriages is a violation of the right to life, which includes the
right to companionship and sexual intimacy of homosexuals, as affirmed in the cases
of Madhubala v. State of Uttarakhand (2020) and Soni Gerry v. Gerry Douglas (2018).
4. Non-recognition of same-sex marriages is against the integral rights guaranteed under Article
21.
5. Non-recognition of same-sex marriages is against the institution of marriage as per the
Constitution as affirmed in the judgement of Joseph Shine v. Union of India (2019).
Violation of Article 19 of the Constitution of India
1. Denial of the institution of marriage to couples and refusal of the state to recognise and
acknowledge homosexual marital unions are both criminal and constitutional violations of their
right to freedom of expression protected by Article 19(1)(a) of the Indian Constitution as
affirmed in the cases of Vikas Yadav v. State of UP (2016) and Asha Ranjan v. the State of Bihar
(2017).
 2. The challenged laws infringe on same-sex couples’ fundamental rights under Article 19(1)(c) of
the Constitution by excluding them from the protection and recognition of the law when it
comes to marital relationships.

Violation of Article 14 and Article 15 of the Constitution

1. The idea that a law that is manifestly arbitrary violates Article 14 of the Indian Constitution is
well established by Shayara Bano v. Union of India (2017).
2. Discrimination under Article 15(1) occurs when non-heterosexuals are denied the right to
marry. Discrimination against nonheterosexuals includes both gender or sex discrimination and
discrimination based on sexual orientation.
3. Classifying the two groups of people, namely same-sex married couples and opposite-sex
married couples, based on the partners’ sexual orientation amounts to treating equals as un-
equals and violates Article 14 of the Indian Constitution.
4. Queer people are refused entry to business enterprises and public spaces without formal
acknowledgement of their marriage, which is a violation of their Article 15(2) rights. They do
not have the same rights as a married partner when it comes to privately accessed necessities
and activities such as insurance, hospitalisation, and hotel booking.

Violation of Article 25 of the Constitution

The failure of Indian marriage laws to recognise same-sex marriages violates same-sex spouses’
freedom of conscience. Article 25 of the Indian Constitution recognises freedom of conscience as a
basic right that is not limited to religious considerations.
Violation of the Directive Principles of State Policy
Part IV of the Constitution imposes a duty on the state to follow certain governance principles, and
many of these principles, when interpreted in the context of bringing equality and welfare to LGBTQI
people, impose an obligation on the government to abolish discrimination against them. The state has a
positive obligation under Article 38(2) of the Constitution to remove inequalities in status, facilities,
and opportunities for its citizens. Article 39(a) requires the government to treat all citizens equally,
whereas Article 44 encourages the government to create a standard civil code for all citizens.
When the state’s mandated duties under Part IV of the Constitution are compared to the justiciable rights
under Part III of the Constitution, it is clear that the State is powerless to deny homosexuals and other
sexual minorities access to matrimony and that the State has a positive duty to protect these individuals
from all forms of discrimination based on their sexual orientation or gender.

Conclusion
Though homosexuality was decriminalised in 2018 as a result of a Supreme Court verdict, other civil
rights and liberties such as marriage, adoption, and insurance are still unavailable to both gays and
transgender people. Usually, the way forward is the way ahead. However, more than four years after
homosexuality was decriminalised, India’s government’s response to establishing LGBTQIA+ dignity
has been a standstill, if not an attempt to go backwards, by pursuing dismissals of petitions seeking
recognition of same-sex marriages under existing laws. Times are changing, and public morality is
changing as well. Marriage should no longer be defined in terms of a man-woman relationship; instead,
it should be regarded in broader terms as the civil status, state, or relationship of two people united in
law for life. It’s past time to acknowledge that same-sex couples have the same constitutional right to
marry and enjoy all the rights of a married couple as everyone else.

The Supreme Court Judgement that struck down a Delhi High Court judgment to make
homosexuality illegal in India again
“The Supreme Court reinstated a colonial-era ban on gay sex that enables the jailing of homosexuals
in a major setback for rights campaigners in the country.”
After the landmark judgement by the Delhi High Court, Suresh Kumar Koushal, an Indian citizen who
felt it important to protect the moral values embedded in the society, sent a petition to the Supreme
Court of India, challenging the High Court judgement.
In the views of the petitioners scrapping down Section 377 was irrefutably baseless. It was argued that
no constitutional right validates any act which has the tendency to cause harm to oneself and to others,
intercourse between homosexuals being one such high risk activity. The petitioners brought in the
concept of the code of nature- every organ in the human body have been assigned discrete functions by
nature and man should not violate such naturally set norms. Thus, accepting the Delhi High Court Order
might inimically perturb marriage as an institution itself and might tempt the youth towards homosexual
activities.
The respondents showed through various cases, how Section 377 IPC was being used to harass people
from the homosexual community. One such case was that of Jayalakshmi v State of Tamil Nadu. In this
case, concerning sexual abuse of eunuchs by the police, Section 377 was used by the Metroplitan
Magistrate to penalise two women. This was grossly unreasonable because, the Explanation to Section
377 IPC mentions penetration as a requirement. The respondents argued on the archaic and obsolete
nature of Section 377 IPC.

Repelling the moral stand taken by the petitioners, Shri F.S Nariman fighting on behalf of the
respondents pointed out, Section 377 IPC falls under Chapter XVI, “Of Offences affecting the Human
Body” (and not under Chapter XIV). Thus, Section 377 should not be used to classify against the LGBT
community morally.
The respondents also paid attention to the commonly debated question, whether Section 377 should
apply to the sphere of homes. They argued that Section 377 IPC should not apply to the private activities
of the homosexuals because the difference between amoral and depraved acts in the public and private
spheres has been recognized statutorily by Section 294 IPC. It was argued that, the right of the
homosexuals to enter into any personal relation of their choice, cannot be denied, by shedding an
umbrella of criminality over same sex relationships. The respondents considered important, the view
given by Justice Vivian Bose in S.Krishnan and Ors. v. The State of Madras “…when there is ambiguity
or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve
it in favour of the freedoms so solemnly stressed.”

The Debate On Constitutionality of criminalization of homosexuality

A major point of debate was regarding the constitutionality of Section 377 IPC. In the words of Shri V
Giri, “if the judgement is rested purely on the constitutionality of the provision, then there is a fair
chance of the judgement [of the High Court] being reversed. That is what has happened. The Court has
not gone into any other issue.”
The petitioners laid stress on the theory of presumption of constitutionality- a statute is presumed to be
constitutional unless it directly violates a fundamental right. Thus, an indirect violation of the
fundamental rights cannot be considered sufficient ground for quashing Section 377 of the Indian Penal
Code. The petitioners also contended that there was no violation of Articles 14 and 15 of the Indian
Constitution. This is because, Section 377 IPC applies to both the genders equally, if they engage
themselves in “carnal intercourse against the order of nature”. So, the Delhi High Court’s finding that,
Section 377 unjustly discriminates against the homosexual community as a ‘class’, has no solid base.
Shri Ahmadi, fighting on behalf of the petitioners argued that, the Delhi High Court is itself not clear
whether it wants to severe portions of Section 377 or read down the Section. He added that, “the
language of the section was plain, there was no possibility of severing or reading it down. He further
argued that, irrespective of the Union Government’s stand, so long as the law stands on the statute book,
there was a constitutional presumption in its favour.”
The respondents tried to challenge the very constitutionality of Section 377 IPC. Quite a few situations
can be derived from the language used in the Section- carnal intercourse or anal sex between a husband
and a wife, procreative or non-procreative, with or without consent, etc. According to them, Section
377 in the practical scenario, considers the LGBTs as a separate class and thus stands repugnant to
Articles 14 and 15- the constitutional pillars of equality. Also, Section 377 IPC does not lay down any
well drafted policy or principle as to which of the various possible cases it should apply. Thus, it cannot
be justified under Article 14 even on grounds of intelligible differentia and hence, reasonable
classification. According to the respondents, Section 377 IPC also does not follow a “procedure
established by law” as required by Article 21 of the Indian Constitution, by interfering into the lives of
the homosexuals without following any proper statutory procedure. Cases like Mithu Singh v State of
Punjab, Selvi Devi v State of Karnataka were discussed in order to study the “ test of whether a law is
just fair and reasonable has been applied in examining the validity of state action which infringes upon
the realm of personal liberty.”
The Supreme Court however, based their judgement solely on the constitutionality criteria and held that
Section 377 IPC is constitutional and hence, overruled the Delhi High Court judgement.

POLICY FRAMEWORK AROUND HOMOSEXUALITY AND LAW

While the legal status of same sex relationships and marriages has always been in dispute, policies for
these sexual minorities have been unstable too. In the year 1994, voting rights were granted to the
LGBTs.
“In 2005, the Central Government introduced category ‘E’ in passport applications meant for
transgender persons…Similarly they can get voter id cards with a third gender.”
Very recently, the Supreme Court of India has declared that, “Transgenders should be treated as a third
category and as a socially and economically backward class entitled to job reservation.”
Government is still sensitive regarding issues like same sex marriage, adoption by same sex couples,
commercial surrogacy for gays, etc. Thus, there is no clear policy for the LGBTs in India.

THINK FOR YOURSELF – WHAT IS THE COST OF MAKING HOMOSEXUALITY

ILLEGAL?
After the innumerable attempts to determine the status of homosexuality in India, I would like to look
at the problem from a personalized perspective. First, we need to understand the primary point of
conflict regarding the issue of homosexuality. People primarily raise opposition to the proposal of
widely accepting the third sex and their right to lead a private life, on moral grounds. However, it is
important to note that, sexual orientation being a biological function cannot act as a strong influencer
on moral grounds. One who is not biologically homosexual, cannot get involved in homosexual
activities simply on the basis of societal influence. Instead, if we as a society maintain a liberal outlook,
we will be able to respect the rights of the LGBTs. This should not mean that we transform our way of
living, but only nurture and develop ourselves into responsible citizens, who are able to space out their
lives, thus allowing every right thinking member of the society to lead an undisturbed life. It depends
on the strength of human personality. We should be able to place our own morals at the apex, without
casting a shadow of contempt on the diverse individuals in the society. We should allow ourselves to
respect the human diversity, that might come up in the form of variant cultures, festivals, food cuisines,
and more recently in the form of a variant sexual orientation. Whether or not, we imbibe such variant
in ourselves depends on our biological matrix, supported by the strength of our character. However, just
as we get the right to absorb or abject this variant, the LGBT community should have the same right
too. What the society considers normal, might as well be a variant to them. So criminalizing
homosexuality is no solution.