The most contemporary issues of morality arises in case of Homosexuality .it’s big question to debate all. Weather the Indian penal code can justifiably be employed to protect the people from harming their own moral characters and Rights .the issue is confronted judges with the question laws upholding the sexual morality yield with the demand of sexual freedom in personal life of LGBT community – section 377 of Indian penal code refers to unnatural offence – whoever voluntarily has a carnal intercourse against the order of nature with any man, woman or animal. Shall be punished with imprisonment for life or either description for a term which may be extend to 10 years and shall also liable to fine.
KEY WORDS :
Homosexuality , LGBTQ rights , sodomy, section 377 of Indian penal code.
Section 377 of India penal code introduced in 1861 during the British rule of India. Modelled on the buggery act 1533 ,it makes the sexual activities “ against the order of the nature” in illegal. On September 2018 ,the supreme Court India ruled that the application of section 377 to homosexual sex between adults was unconstitutional ,“ irrational , indefensible and manifetley arbitrary. LGBTQ – lesbian ,gay, transgender , transsexual ,queer,intersex,,Ally,, pansexual .The supreme Court ,on September 6.2018 in a unanimous landmark – judgement decriminalized homosexuality and section 377 Indian penal code .“section 377 is arbitrary ”.LGBTQ community possess the rights like others.
WHAT IS SECTION 377 ?
UNNATURAL OFFENCE – whoever voluntarily has carnal intercourse against the order of nature with any man ,woman or animal . Shall be punished with imprisonment for life or either description for a term which may be extend to 10 years and shall also Liable to fine.
EXPLANATION – penetration is sufficient to constitute the carnal intercourse is necessary to the offence described in the section. Unnatural offence is defined as the (1) sexual intercourse with any person against the order of the nature (2) consensual sexual intercourse between a man and man or woman “ against the order of the nature .
Except gay sex: Indian penal code section 377 remains force relating to sex wit minors, non- consensual acts and bestiality .
• Now for UNNATURAL SEXUAL ASSAULT with female has comes under rape and sexual assault with child whether male child or female child deals with the POSCO ACT.
Section 377 IPC this offence is cognizable ,not bailable and not compoundable ,which means that the police have the authority to arrest a suspect without a warrant .the arrested individual cannot pay the bail amount and be released without a hearing before magistrate and there is no compromise is allowed between the accused and in victim in order to avoid trial.
INGREDIENTS OF UNNATURAL OFFENCE :
• “VOLUNTARILY”: This requires that the unnatural offence must be accompanied by intention.
• “HAS CARNAL INTERCOURSE”: This requires that the act is committed (actus reus); mere intention is not sufficient.
• “AGAINST THE ORDER OF NATURE”: This part is subject to various interpretations by the court. The Court in Khanu vs Emperor laid down that, “the natural object of sexual intercourse is that there should be the possibility of conception of human beings..’ The court then defined sexual intercourse as “the temporary visitation of one organism by a member of the other organism, for certain clearly defined and limited objects”. Thus any sexual activity the natural object of which is not conception is against the order of nature. This section was read by courts to criminalize bestiality, child sexual abuse and consensual homosexual intercourse. The section as interpreted by the courts from time to time initially punished only anal sex as unnatural. Slowly cases such as Khanu vs Emperor also held oral sex as unnatural. The present interpretations have even covered penile penetration of other artificial orifices like between the thighs or folded palms as unnatural.
LBGTQ RIGHTS IN INDIA :
• (LGBTQ) people’s in India have limited rights and will face social difficulties not experienced by non-LGBTQ persons .the country has repealed it’s colonial – era laws that directly discriminated against the gay sex and transgender identification .but many legal protection have not been provided for anti- discrimination laws and same sex marriage .
• The third gender people’s have limitations to recognition in family rights and relationship .
• The transgender women may marry under the Hindu marriage act ,1955.
• Adoption by single LGBTQ people recognized ,but not by same sex couples .
• Transgender people in India are allowed to change their legal gender post sex reassignment surgery under legislation passed in 2019. And have a constitutional rights to register themselves under a third gender.
RIGHTS OF MAINTENANCE :
Section 125 (1)(a) of the criminal procedure code recognizes the right of a wife to claim maintenance from her husband so obviously section 125 on the premises of a heterosexual relationship .it’s not take into consideration homosexual relationship.
Consensual homosexual is perfectly valid as per the judgement of the Apex court and hence such rights that are enjoyed by the hetrosexual couples must be extended to homosexual couples as well as and they have right to claim maintenance.
NAVTEJ SINGH JOHOR VS UNION OF INDIA
The honorable supreme Court of India in this case passed a landmark judgement .a bench headed by the former chief justice , honorable justice Dipak misra ,read down the colonial law to extend the freedoms and rights of the LGBTQ in this community . sexual orientation is various from one individual to the others .A general rule can never be laid down .it’s not always that a man is attracted to woman or woman is attracted to man.Homosexuality attracts a unique sexual orientation but it is not an offence .the finally in 2018, the honorable supreme Court of India vide it’s judgement in Navtej Singh Johor vs union of India .struck down portions of criminalized consensual sexual relation between the same sex couples. The supreme Court delivered that when the section 377 was drafted , procreation was considered as the sole purpose of intercourse and deviation from such kind of sexual relation was thought of as “unnatural”.
But the homosexuality is no longer unnatural offence and thus there is no points covering the unnatural offence . The individuals can’t punished by establishing the homosexual relations.
The Indian penal code in the principal legislation dealing with the substantive criminal law in India for punishing various offence have been laid down various sections under Indian penal code.
The law punished individuals for indulging in sexual relations against the order of the nature . The problem is provision was absence of the consent clause.
Unlike the section 375 “Rape” that punishes individuals for forceful sexual relations with woman against her will and without her consent . however before we move further we need to understand the consent and against order of the nature.
Consent is most important thing in various countries legislation even consensual sexual relations outside marring are an offence .in some countries consensual sex is punishable .in India considering the individual people rights and liberty . individuals freedom is came under the Article 21 of the Indian Constitution .
A person shall have a rights to indulge a consensual sexual relation and such relationship is violation of the rights of third person .which means the husband and wife cannot indulge a such relations in outside marriage in similarly if two individuals are entering into a such relations with consent is not punishable under law.
AGAINST THE ORDER OF NATURE :
Their issues with section 377 that it punished individuals for indulging in such relations against the order of nature is punishable under law .god mad has a human being for various purpose according to religion and every belief to establish and procreate a children.
• In this case liberty in the present case , Navtej Singh Johor ,filed a writ petition in supreme Court in 2016 challenging the constitutional validity section 377 seeking the recognition and rights of sexuality .right to sexual autonomy and right to choose a sexual partner in under Article 21.the petitioner argued section 377 is violates of Article 14 . section 377 is unconstitutional as it was carnal intercourse was not defined in provision .it is violative of Arrive 15 as it’s discriminated on basis of a person’s sexual orientation freedom of express under Article 19 .since it’s denied the right to express one’s sexual identity through the speech and choice of sexual partner . The five judge bench of the supreme Court in this matter unanimously held that section 377 is insofar as it applied to consensual sexual conduct between individuals was unconstitutional . Now consensual sexual homosexuals relations are not punishable under section 377 of Indian penal code .
NAZ JUDGEMENT, 2009 :
NAZ FOUNDATION V GOVERNMENT OF NCT DELHI
it is popularly known as Naz Judgement is a 2009 judgement by the Delhi High Court. In this judgement for the first time Delhi High Court declared Section 377 to be unconstitutional.
Naz an NGO based in Delhi which filed a Public Interest Litigation (PIL) at the Delhi High Court and claimed Section 377 of the Indian Penal Code to be unconstitutional. They have been at the forefront in the battle of decriminalisation. In 2009 they successfully got the Courts to declare Section 377 to be unconstitutional which violates Article 14, 15 and 16 of the Indian Constitution.
NALSA JUDGEMENT, 2014:
2013 was a very dark year for rights in India in general and LGBTQIA rights in particular because Supreme Court of India delivered Suresh Kumar Koushal vs Union of India where homosexuality was re-criminalized. The darkness was short lives because National Legal Services Authority vs Union of India or NALSA judgement was delivered by the Supreme Court.
For the first time in legal history, Transgender people were recognised as citizens of this country, all the Fundamental Rights were extended to them and they were given the identity of Third Gender. This case continues to be the landmark case for Transgender Rights in this country. The court laid a comprehensive set of guidelines that every State must follow to bring Transgender into public spheres and provide remedies for their marginalisation.
PUTTASWAMY JUDGEMENT, 2017 :
Justice (Retd) K S Puttaswamy vs Union of India or Puttaswamy judgement as it is popularly known is an integral judgement as it held the Right to Privacy to be integral. Article 21 of Constitution of India which grants us Right to Life and Liberty was also expanded to include Right to Privacy.
Right to Privacy was also extended to every individual irrespective of their gender and sex. Recognition of privacy for members of the LGBTQIA community as an inalienable grants them autonomy and protection from State action while exercising their right to choose their partners. Hence, this judgement along with NALSA judgement became the pre-cursor to the reading down of Section 377 in 2018.
NAVTEJ JOHAR, 2018 :
Navtej Singh Johor v Union of India or Navtej Johar, as it is popularly known, is the seminal judgement that decriminalized homosexuality in India. This judgement delivered by the Supreme Court of India is a result of multiple Public Interest Litigations that have been filed by different groups of the Lbgtq community.
The Bench struck down Section 377 to the extent that it criminalized sex between two consenting adults. The Court upheld the provision of that criminalise non –consensual acts with children or animals. The Supreme Court further held that Section 377 violates Article 14, 15, 16 and 19 1 (a) of Constitution of India. It recognized that every individual irrespective of their gender identity and sexual orientation have the right to live with dignity, autonomy and make personal and private without State interference.
ARUN KUMAR JUDGEMENT, 2019 :
Arun Kumar v Inspector General of Registration, Tamil Nadu is a case from the Madras High Court which reads into the category of brides to include transwomen. Under Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgement expands the category of women to include transgender people to identify as women to be brides as well.
It takes the clause of self-identification as has been mentioned in the NALSA judgement , where a person can identify as any gender identity without needing a State or external body to verify their identity. Evolving this clause, it says if an individual wishes to identify as a transwoman then they have the constitutional right. This, among many other cases, lays the foundation for marriages within the Lbgtq community broadening the right to marry.
The Constitution of India assures equality of laws and equal protection and directs people to renounce practices derogatory to the dignity of men, women and the members of the LGBT community. The LGBT Community though recognised recently, as already mentioned is struggling to find a foothold in the Indian society. It will still take society at large to accept gays, lesbians, bisexuals and trans-genders a considerable amount of time.
Clg name: DR.AMBEDKAR LAW UNIVERSITY , school of excellence in law