DECRIMINALISING HOMOSEXUALITY IN INDIA

    homosexual

    Homosexuality is the behavior between two groups of people who have same-sex get attracted to each other but in India being from LGBTQ(Lesbian, gay, bisexual, and transgender) community is not easy. They are rejected by families being ostracized by the community and face violence and also being raped. They even not getting basic rights.

    Over constitution gives the right to equality and the right to life to its all citizens(Article 14,21 of the constitution) but before 2018, this LGBTQ community was even not recognized by the law and homosexuality was a crime in India since the 19th century. In the British era, section 377 was introduced, which made homosexuality a crime “as against the nature”, and made it punishable by them.

    But in Morden India, the apex court took a great decision by making section 377 of IPC unconstitutional. In 2018, the Supreme court of India, in its landmark judgment of Navtej Singh Johar Vs. Union of India, change the scenario by giving the constitutional status to homosexuality and decriminalizing consensual homosexual intercourse according to section 377 of the Indian Penal Code.

    Section 377 of the Indian Penal Code 1860, section 377 made sexual intercourse between two people of the same sex punishable. This law has left them open to harassment, beating, and blackmail.  They were forced into loveless and sexless marriages which resulted in their attempt to suicide. The condition of the LGBTQ community is horrible they are being raped which is called “corrective rape”.

    In Naz Foundation Vs. Government of NCT of Delhi and others: The High Court of Delhi took up the question of section 377 in this case. Naz Foundation, an NGO, filed a writ case alleging that section 377 of the IPC violates Articles 14, 19, and 21 of the Indian Constitution. The petitioners claimed that discrimination led to the denial of basic human rights, as well as abuse, harassment, and assault by public officials, driving the LGBTQ community underground and exposing them to greater risk in violation of their fundamental rights.

    The court took into account the arguments made by different NGOs in various cases to decriminalize section 377. The Delhi High Court ruled that criminalizing consenting homosexual sex is a breach of fundamental rights protected by the Indian Constitution. This Supreme Court decision made homosexuality legal in India. Suresh Kumar Kaushal v. Naz Foundation, 2013, overturned this decision.

    In the Navtej Singh Johar case, the court held that the LGBTQ community has equal rights in the society and the right to choose their life partners whether same-sex. The court said that section 377 is against article 14 of the constitution of India. The five-judge bench of the Supreme court gave the decision and held section 377 unconstitutional.

    The court overruled the judgment of the national legal service authority (NALSA) Vs. Union of India. Similarly in KS Puttaswami V Union of India, the court held that its LGBTQ community’s rights to privacy and preventing them from it will be a violation of the right of equality under article 14 and freedom of expression(article 19).

    The court system has proven time and time again that justice is guaranteed to every resident of India, regardless of gender, caste, color, or other factors. LGBT rights must be recognized because these people have been treated unfairly by society. In terms of job, social life, and every other element of existence, they must contend with social stigma and boycotts by the general public. They are also born free and demand to be treated with the same dignity and respect in society. The laws were changed to provide them the right to live freely as well as the right to equality. Once again, our legal system has issued a historic landmark decision that will gleam in the annals of law.

    Also. Read – https://indianlawinfo.in/bjp-spokesperson-tajinder-singh-bagga-arrested/

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    (MARCH – APRIL 2022)

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