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HOMOSEXUALITY STILL A TABOO- ANALYSIS IN INDIAN CONTEXT

Submitted during Internship under Legal Specs.

ABSTRACT

According to popular perception and research on the social behaviors of homosexuals, homosexuality is the romantic and physical attraction one person has for another person who shares their sexual orientation. Regarding the precise causes of gay behavior in humans, scientists from all over the world disagree. In India, the legal and social status of homosexuality, also known as the third sex, is unclear. While there are demonstrations and public protests against the discrimination against gays in society, we also observe that a sizable portion of the population looks down on homosexuals. Indian culture looks to be torn between accepted beliefs and the voice of their own conscience. In turn, these societal and legal attitudes have a possible psychological effect.


KEYWORDS- Homosexuals; gay behavior; third sex; psychological effect.


INTRODUCTION

Homosexuality in India was made a crime under Section 377 of the Indian Penal Code, a colonial law that is 157 years old. When India was still a British territory, the area was initially founded in 1864. Unnatural Offenses was the term used to describe the violations of Section 377. Anyone who participates in consensual sexual intercourse with a man, woman, or animal in a way that is against nature commits a criminal offense, according to section 377 of the IPC.

According to Section 377 of the Indian Penal Code, the offender may face a sentence of up to life in prison or a fine for committing this offense. This part was removed without justification after 150 years. According to section 377 of the IPC, no one can punish members of the LGBT community. But it is still considered as a taboo in Indian societies and have various impact on them as individuals like-

  • Social impact: They live in a society with the same respect, freedom, and dignity as those of other genders.

  • Impact on education: They can accept formal education, regular schooling, and employment as normal.

  • Personal impact: They live in a calm environment and are free to choose their partners as well.

  • Impact on the world: They can also participate in national service, and their contributions to the nation are beneficial to emerging nations.

This limited freedom fosters their capacity to develop, learn, and apply in order to realize their aspirations and intended objectives.


CURRENT LAWS APPLICABLE IN INDIA

India's Constitution ensures that its inhabitants have fundamental rights, which are a cornerstone of every democracy in the world. Being one of the democracies with the fastest rate of development, India, the enforcement of laws restricting people's sexual preferences—choices that are entirely personal in nature and essential to one's autonomy over one's body and freedom of expression—was a grave violation of their fundamental rights. Penalizing homosexual acts between people of the same sex is a clear violation of the rights guaranteed by the Indian Constitution's Articles 14, 15, and 21. The homosexual community was discriminated against in society as well as denied equality in the eyes of the law and freedom of speech under Section 377. Additionally, it was obvious that the Article 21-guaranteed right of a person to their body had been violated. As a result of several petitions being filed in high courts all around the country, a catena of decisions have been made regarding the legitimacy of Section 377. Later in This blog, we go into more depth about the important rulings that addressed the validity of this law.


PROVISIONS RELATED TO THE TOPIC

Beginning in 2001, the government and the courts engaged in a legal fight to uphold the rights of the LGBT community that lasted until 2009. The Delhi High Court ultimately ruled in favor of decriminalizing homosexuality in 2009, leading to the removal of the old statute, in the case Naz Foundation v. Government of Delhi NCT of India. The Indian constitution's enshrined rights to its people, found in articles 14, 15, and 21, were found to be violated by section 377 of the IPC, the court declared. The Delhi High Court's ruling was supported by a number of human rights organizations, who hailed it as "progressive" because it was in line with changing society perspectives and, moreover, it ended an eight-year battle for gay-rights activists.

However, as events progressed in the wake of the Delhi High Court's ruling, numerous social, religious, and political organizations with influence in politics voiced their opposition to the ruling, claiming that homosexuality violates Indian ethical standards and culture and should therefore be made illegal. Following these occurrences, the Supreme Court of India reversed the earlier ruling of the Delhi High Court and ruled that homosexuality is an offense. Following multiple petitions submitted in the case—including those from prominent individuals like Navtej Singh Johar and four other well-known Indians—that required a court hearing, the court considered reconsidering the subject in June 2018. Following that, the case in which Johar and four other People who had filed a plea were considered by a five-judge constitution bench in July 2018. The court was given complete authority to determine if the case was legitimate, and its decision would be treated as final. The court also had the power to reverse the case's final decision. On September 6, 2018, the court ultimately decided that section 377 should be repealed since it was unreasonable, arbitrary, and unjustified. In the case of Navtej Singh Johar v. Union of India, the Supreme Court of India declared homosexuality to be not a crime. The Supreme Court of India's ruling put an end to enduring colonial law and signaled a victorious conclusion to a protracted fight for justice.


AUTHOR'S CONTENTION

It is unfortunate that most people are not aware of the rights of the third group. It was unexpected when well-known actor Ayushmann Khurrana released the movie "Shubh Mangal Zyada Savdhan" under the presumption that same-sex unions are permitted in India. He ultimately apologized, but this highlights the overall ignorance of the matter. The law was changed, not society. Section 377 had to be repealed in order for LGBTQ persons to be recognised as a group. Their right to get married was not taken into consideration. The stigma associated with such marriages is increased by the fact that they are not recognized, and they are also denied rights enjoyed by heterosexual couples, such as the right to adopt, maintenance after a divorce, and compensation in the event of a partner's death and other things.


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