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The Right To Love

The Right To Love


India is a country which recognizes and accepts different religions, culture, language and backgrounds. So, why not have the freedom of having one’s own sexual orientation which is completely uncontrollable and natural. According to the University of Oslo, Norway, homosexuality exists in over 1500 species of animals. So why is it so ‘unnatural’ for humans?   If considering the number of rape cases and overpopulation, India criminalized the sex between straight people then how would people feel. Nobody has the right to interfere in one’s own personal choices and life. If one has the right to choose their own clothes and career paths basing on their interests, why not have the right to choose their own life partner of either gender. Labeling people as criminals just because they love somebody from their own gender is completely wrong as nobody likes to be victimized just because of who they are. How many times have we not associated certain stereotypes to the genders whether it is Boys don’t cry or Girls love the color pink? So, if boys cry or girls hate pink, is it not their own personal choices? How can we restrict people’s feelings or their opinions? Our Constitution guarantees us right of equality[1], freedom of expression[2] and right to life and personal liberty[3]. But how far are they being implemented and when will people actually start accepting and respecting others choices, opinions and perspectives towards life.

In the Indian culture, sexuality was not considered as rigid as references were made to alternate sexualities being part of the stories of Mahabharata and Ramayana. The myths of Gods becoming Goddesses and homoerotic sculptures on the temples of Khajuraho suggest that Ancient India was not so homophobic.

 The law of criminalizing homosexuality was brought in by the British in 1861 to punish ‘carnal intercourse against the order of nature’. Thomas Macaulay had drafted Section 377 in 1838 and it was based upon the Buggery Act, 1533. The term ‘buggery’ refers to an unnatural sex act against the God’s will and criminalizes anal penetration, bestiality and homosexuality.

In 1994, AIDS Bhedbhav Virodhi Andolan (ABVA) filed the first petition against Section 377 of IPC, 1860 in the Delhi High Court. The petition challenged the prison authorities’ ban on the distribution of the condoms besides questioning the constitutional validity of the said section. In 1998, protests broke out across the country demanding the ban on the screening of Deepa Mehta’s film ‘Fire’ starring Shabana Azmi and Nandita Das which portrayed a lesbian relationship between the two of them.   

In 2001, the Naz Foundation filed a landmark petition in the Delhi High Court. The Naz Foundation India is a non-governmental organization which is committed to intervention and prevention of HIV/AIDS. It filed a Public Interest Litigation in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code 1860[4] which makes it illegal to engage in any ‘unnatural’ sexual act which is defined as sex other than heterosexual intercourse. The Delhi High Court dismissed the original writ petition of 2004 due to lack of cause of action. A civil appeal was made to the Supreme Court of India which set aside the dismissal and ordered the Delhi High Court to hear the petition on merits. Naz Foundation i.e. the petitioner argued that Section 377 of IPC, 1860 encouraged abuse, discriminatory attitudes and harassment of the gay community and also impaired significantly the HIV/AIDS prevention efforts and access to treatment. National AIDS Control Organisation (NACO) under the Ministry of Health supported the petitioner in their response.

The Delhi High Court gave the judgment in favor of the petitioner and held that Section 377 of IPC, 1860 was unconstitutional. The Court found that it violated the right to dignity and privacy by citing the Universal Declaration of Human Rights (UDHR) and European Court of human Rights. The Court also cited the case of Francis Coralie Mullin[5] in which the Indian Constitutional Right defined dignity as requiring adequate shelter, nutrition, clothing as well as the ability to freely socialize. The Court also held that under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 21 of the Indian Constitution, the state must fulfill ‘everyone’s right to access the highest attainable standard of health’ as part of the Right to life. The Court agreed that the criminalization of homosexual conduct pushes the homosexuals into isolation and prevents access to adequate information for prevention of HIV/AIDS. The Court also cited the General Comment 14 of the ICESCR in defining the Right to Adequate Health as including the Right to Control one’s Health and Body including sexual reproductive freedom, the right to be free from interference and non-discrimination and equal treatment with regard to accessing healthcare. The Court also cited various other international treaties and agreements to which India is a party that specifically declare a commitment on the part of India to address the needs and rights of groups with a high risk of contracting HIV/AIDS. The Court found Section 377 of IPC, 1860 to be unconstitutional infringement of fundamental rights in light of the evolution of domestic and international law regarding dignity, privacy and the right to health as well as changing social attitudes and understandings of sexual orientation.

On July 9th, 2009, a petition was made to the Supreme Court by two private citizens seeking to defend the law on moral grounds. On 20th July, 2009, the Court refused to suspend the decriminalization of homosexual conduct under Section 377 of IPC, 1860. 

In 2013, the Supreme Court overturned the Delhi High Court’s judgment and found it to be ‘legally unsustainable’. The Apex Court also quashed the review petition filed by the Naz Foundation.

In 2014, the Supreme Court directed the government to declare transgender as a third gender and include them in the Other Backward Classes (OBC) quota.

In 2016, five petitions were filed in the Supreme Court by LGBTQ (Lesbian, Gay, Bisexual, Transgender, Questioning) activists claiming that their rights to sexuality, sexual autonomy, choice of sexual partner, life, dignity, privacy and equality along with other fundamental rights guaranteed under Part III of the Constitution are violated by Section 377 of IPC, 1860.

In August, 2017, the Supreme Court upheld the Right to Privacy as a fundamental right under the Constitution and observed that ‘sexual orientation is an essential attribute of privacy’.

In July 2018, a five judge Constitutional bench headed by Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra started hearing writ petitions challenging Section 377 of IPC, 1860. The petitioners are Dancer Navtej Jauhar, Journalist Sunil Mehra, Chef Ritu Dalmia, Hoteliers Aman Nath and Keshav Suri and Business Executive Ayesha Kapur and 20 former and current students of the IITs. On September 6th 2018, the Supreme Court bench announced that consensual adult gay sex is not a crime and Article 14 and Article 21 of the Constitution of India contradict the view of Section 377 of IPC, 1860. It also said that Section 377 of IPC, 1860 remains in force relating to sex with minors, non-consensual sexual acts and bestiality.

 ‘TAKE ME AS I AM. I AM WHAT I AM’, and saying this, the Supreme Court decriminalized Section 377 of IPC, 1860 and ended a long-drawn battle.

Though this step is in the right direction allowing protection of homosexuals and allowing them to marry their partner of choice but still a lot more has to be done in ending the discrimination against such people. The people belonging to such communities face a lot more challenges including psychological ones where they have the fear of not being accepted by the society. Men who have sexual relation with other men fall prey to blackmails and threats when they are tricked and then beaten up unless they pay a huge amount of money or give away their valuables. Due to the stigmas associated with homosexuality, many people from these communities marry members of the opposite gender to make their families happy. But this leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most. Also, people from such communities fall into depression and commit suicides due to the isolation they face in the society. So, mere decriminalization is not enough, there should be a change in the mindset of the people. This can only be achieved when parents are counseled first if their child belongs to any one of such communities as peace and harmony begins at home. People should get rid of their prejudices, stereotypes and stigmas associated with such communities and welcome them with open arms. Only then can we say that the decriminalization has benefited these communities and helped them in coping with their challenges. Let’s all support them in whatever way we can and help in educating them and spreading awareness amongst people. Only then can it be said that, LOVE IS FOR ALL.    

[1] Article 14- Equality before Law

[2] Article 19-Protection of certain rights regarding freedom of speech, etc.

[3] Article 21-Protection of Life and Personal liberty.

[4] Section 377 of The Indian Penal Code, 1860- Unnatural Offences

[5] Francis Coralie Mullin v. Administrator, Union of Delhi and Others, (1981) 2 SCR 516.

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