Homosexuality: Legal Status and Rights of Individuals

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Homosexuality: Legal Status and Rights of Individuals

Written By: Meghna Prusty

Homosexuality refers to a sexual settlement among characters of identical intercourse as guy and guy or woman and woman. The expression gay is etymologically Greek and Latin. The expression ‘homo’ infers “indistinguishable”. The consuming issue withinside the state of the art crime and non-lawful offence subject nowadays is the established legitimacy of portion 377, which precludes unnatural intercourse even in private. The issue is especially significant considering the memorable Delhi High Court choice in Naz Foundation v. Legislature of NCT and Ors, in which the court struck down the provision to the extent that it outlaws homosexuality in private.

Even if the court’s ruling is final, it hasn’t settled the issue across the country because the relief offered to the so-called homosexual community is traceable back to the fundamental rights of liberty, equality, and privacy. However, because the subject at hand is not only legal, but also ethical, social, and religious in nature, it encompasses a wide range of additional considerations. Keeping in mind that the Hon’ble High Court’s verdict has been widely criticized, the issue cannot be resolved unless a decision is reached that will satisfy all sections of society with a rationale that strikes a balance between social and legal requirements.

If we look at the clause making wrongdoing a crime, it was established in 1860, and it must be overlooked that social beliefs at the time influenced the penal legislation, which included the majority of wrongdoings. Lord Macaulay drafted the Indian Penal Code, which was heavily influenced by English law. Another aspect worth mentioning is that the same law that existed in England was adopted in India, and in England, the law was eventually altered, and homosexuality was made lawful with some restrictions on the basis of personal liberty and privacy. Furthermore, the genesis of the law forbidding homosexuality may be traced back to Christianity, which states that any sexual conduct that does not result in procreation is unnatural and should be punished with the death penalty.

Rule in India

The rule in India that makes homosexuality illegal even if done with the full agreement is clearly influenced by Christianity. In India, there is now a dispute over whether homosexuality to the degree of voluntarily doing so in private should be permitted. The main argument for repealing the punitive clause is that the right to personal liberty guaranteed by the constitution encompasses the right to privacy as well as the freedom to live one’s life as one wishes, subject to the condition that others are not harmed in the process. Now, the main argument is that homosexuals have the same right as everyone else and can live their lives as they like, hence section 377 of the Indian Penal Code is a violation of the fundamental right to life.

The second objection by homosexual and lesbian rights activists is that Article 377 alleges that it violates Article 14 because it irrationally distinguishes homosexuals from non-homosexuals. Third, especially in the case of the Naz Foundation, Article 377 was addressed to classify people based solely on gender, which violates Article 15 of the Basic Law, rather than legal classification. From these provisions, Article 377 seems to violate the Constitution of India, but the function of the law is to maintain the smooth operation of society, for which the law is given to the basics or their rights. Keep in mind that you may impose reasonable restrictions on your rights. Citizens as Article 21 provide for the right to life and freedom, but state that that right can be withdrawn through legal proceedings, and Article 377 does just that.

There is one additional item to consider: under Article 21[3], such a method must be equitable, fair, and reasonable. Following Maneka Gandhi’s well-received decision, it has been established that if a restriction is put on a basic right, the standard of just fairness and reasonableness will apply even if the restriction is imposed by substantive law. As a result, section 377 is nothing more than a substantive rule that imposes restrictions on the fundamental rights that are said to have been violated.

Determination in courts

The task now before the courts are to determine whether the mechanism used to place this restriction on the right is just, reasonable, and justifiable. Now, for this purpose, we must remember that a restriction on a right is valid if the exercise of that right interferes with the enjoyment of others. As in the case of section 377, if homosexual interactions are carried out in a private room where no one is harmed, the prohibitions imposed by section 377 are invalid. However, we must consider the question in light of our country’s social position, as well as the fact that it is claimed in many legal works that the law can impose restrictions on any right based on immorality. Homosexuality is currently deemed sinful in India.

And this moral judgment is based on the supposition (with little theological support) that the sole goal of sex is to reproduce, not to enjoy. And, because there is no such potential, the act of homosexuality leads to enjoyment rather than procreation. Any sexual behaviour that does not result in procreation is seen as unnatural. In India, this kind of unnatural behaviour is forbidden. There have been numerous cases ruled by the Supreme Court in this regard. The topic of contention is whether the law can put a restriction on a basic right based on immoral behaviour.

Second, if such an act is committed within the confines of a closed room, should the law intervene and apply immorality restrictions? The findings of the Wolfenden Commission [5] have ruled out previous criminal offences in the United Kingdom from the field of criminal law. According to this, state power can only be effectively exercised within certain limits, and JS Mills correctly advocates in his theory. If it is stated that an act that does not bother one person is not considered immoral and that the law cannot influence the practice of that act. According to this series of inferences, Section 377 seems unconstitutional.


However, another widely held and accepted viewpoint is that every civilization has a foundation structure, and that foundation structure is founded on some morals that everyone must adhere to. Whether some of the members’ rights are reduced as a result of following this basic structure, should not be interpreted as a violation of their rights, and if this order is not followed, the society will not function correctly. Furthermore, it is claimed that the enforcement of appropriate societal morality can be accomplished through the use of criminal law, as is the case with section 377[6] of the IPC,1860. As a result, if this idea of a society’s core morality is adopted, and homosexuality is regarded immoral in any sense of the word, criminal law can be used to combat that particular evil.

About the Author

Meghna Prusty

Meghna Prusty

Student at The Law College, Utkal University

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