BY ANSHAT AMITESH.
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 LGBT rights website, there are 75 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 State-Sponsored Homophobia report. These are Iran, Sudan, Saudi Arabia and Yemen, with 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.
There has been significant change and public opinion is changing and the rights of LGBT are getting recognized in many countries. As of 2018, same-sex marriage is performed and recognized by law, nationwide or in some parts, in countries including Argentina, Australia, Belgium, Brazil, Canada, 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.
Australia became the second nation in Oceania to legalize same-sex marriage when the Australian Parliament passed the law on 9th December 2017.
India has also been in the center of debate on recognizing the rights of LGBT, 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 IPC provided that 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 judgment delivered on 2 July 2009, the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, held that treating consensual homosexual sex between adults as a crime was 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 struck 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’.” The Court believed that the Indian Constitution reflects this value deeply ingrained in Indian society, matured 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.
The above decision of the Delhi High Court was later overruled by the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation (Civil Appeal No. 10972 of 2013) on 11th December 2013, in which the two-judge bench reinstated Section 377 IPC.
The judgment was widely criticized as being contrary to Articles 14, 15 and 21 of the Indian Constitution. There was widespread protest from different quarters—gay community, social activists, film personalities and even politicians. The United Nations also emphasized the need for equality and opposed discrimination against lesbians, gays and bisexuals.
Finally the Supreme Court of India decided to revisit this judgment after several curative petitions were filed. On 6th September 2018, a constitutional bench comprising Chief Justice Dipak Misra, Justices Rohinton F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra, in Navtej Singh Johar v. Union of India (W.P. (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 the same sex unconstitutional by a unanimous decision. However, portions of Section 377 relating to sex with minors and non-consensual sexual acts such as rape remained in force. The Court ruled that LGBT persons in India are entitled to all constitutional rights, including liberties protected by the Constitution of India.
Another important aspect of this judgment is 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 was no ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution.
Indian Constitutional law does not permit the statutory criminal law to be held captive by popular misconceptions of who the LGBT are. It cannot be forgotten that the choice of LGBT persons to enter into sexual relations with persons of the same sex is an exercise of their personal choice and an expression of their autonomy and self-determination.
The judgment concluded that LGBT persons deserve to live a life unshackled from the shackles of being “apprehended persons”. In the 21st century, where law is developing by the minute, perhaps the time is appropriate to embrace and develop change. Homosexuals do not cause destruction in society; criminality does not define identity. Everyone in society has an equal right to life per their individuality and the government can enforce such order.