India Judiciary passed the test of constitutional morality with flying colours as it decriminalized the so connoted ‘wrongful’ act of consensual homosexual sex in private.[i] Homosexuality, a word which was so long refrained from being used in the social milieu can now finally be spoken with freedom without violating any unreasonable boundaries of the law. The closet seems to have finally opened with this historical judgment.
The term ‘Homosexual’ applies to a person who is attracted to people of the same sex.[ii] Homosexuality was first decriminalized in France in the year 1791[iii]. The demand for decriminalization of homosexuality in India gained popular currency with the legalization of same-sex marriage in Ireland[iv]. Given all the legal aspects, such a paramount decision will have an intriguing impact on the society. The young generation which is quite open and in favour of homosexuality would cordially welcome this judgment while the reactionaries would frown upon this judgment passed by the erudite quintet. A collateral question that arose with the decriminalization was whether this group was a deviant section or a variant one. Considering this section as a minuscule section of society, the Supreme Court in 2013[v] declared the sexual act as a deviant stoke in the society and upheld Section 377[vi]. However, it is imperative for the society to widen their parochial outlook towards the homosexuals and accept them as an ‘innate’ part of the society akin to what has been done by the SC in 2018 rather than toeing on the lines of the judgment passed in 2013.Social Outlook
Homosexuals were hitherto rejected in the society and the primary concern that was raised was that due to the legalization of homosexuality, the customary family structure shall break down and will bring in wholesale changes in the constitution of society. This issue seems to be more of a mental block than being an issue so serious so as to deny the basic and fundamental rights to these people. The society needs to get itself out of the cobweb of traditionalism and accept modernity.
Moreover, people like Subramanian Swamy saw them as suffering from a genetic disorder[vii]. Treating homosexuality as a genetic disorder would not give them their rights and shortchanging their rights for any such reason would be a blot on the judicial system of the country. Indeed, the fact that the medical problems may arise due to anal and oral sex between same-sex individuals, these medical problems can be solved with proper contraceptives and protective devices. The fear of the spread of HIV/AIDS may be a rightful concern but it has been well founded by the UN Human Rights Committee that criminalizing same-sex relationship would not lead to prevention of HIV/AIDS.[viii]
Legal Outlook
The decision lucidly reflects the fact that constitutional morality shall always be upheld over social morality and that what matters is constitutional morality unless any such action under scrutiny is hurting somebody else’s fundamental fabric. Homosexuals should be seen as just another section of people living in the society who deserve all the rights and freedoms as a male or female living in India which include the marital, inheritance and other related rights.
This decriminalization has put forth umpteen questions before the policy-makers regarding their rights as citizens of India; the rights emerging out of the wedlock between homosexuals; the rights of inheritance inter alia. A whole new bunch of laws need to be framed for the homosexuals regarding wedlock and other family-related matters. The inheritance laws shall also undergo wholesale changes for this section since now the inheritors shall also differ with there being either no wife or no husband in the family structure. Moreover, the adultery and rape laws along with other provisions of IPC shall also have to be amended so as to include homosexuals in its ambit. The interpretation of the word ‘gender’ or ‘he’ as given under Section 7 of IPC shall also change so as to include the LGBT community. Furthermore, an important thing that needs not to be missed is that non-consensual sex between homosexuals, consensual or non-consensual sex in public or bestiality is still an offence under Section 377 of the IPC. The only provision that has been repealed is regarding the consensual sex between homosexuals which was earlier typecast as being ‘against the order of nature’.
India has been pretty intolerant in the recent years and this intolerance has been vented out in the form of mob-lynching. It is sincerely hoped that the society does not lynch the homosexual couples who have found a new life through this judgment.
[i] Navtej Singh Johar v. Union of India, W.P. (Criminal) No. 76, 2016.
[ii] Black’s Law Dictionary Online Dictionary 2nd Edition.
[iii] Scott Gunther, The Elastic Closet: A History of Homosexuality in France, 1942-Present, San Francisco, Palgrave Macmilan, 2009.
[iv] Chris Johnston, “Ireland becomes first country to legalise same-sex marriage by popular vote - as it happened”, The Guardian, 24 May 2015, available at https://www.theguardian.com/global/live/2015/may/23/counting-underway-for-irelands-referendum-on-marriage-equality (last accessed 9 September 2018).
[v] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 OF 2013.
[vi] The Indian Penal Code, 1860.
[vii] ANI, “Homosexuality is a genetic disorder: Subramanian Swamy”, Times of India, 6 Sep 2018, available at http://timesofindia.indiatimes.com/articleshow/65707670.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last accessed on 9 September 2018).
[viii] Supra note 1.
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