Right to sexual orientation is the right to identify oneself in relation to the gender to which the person is attracted, such as homosexual, heterosexual, bisexual. Homosexuals are persons who are sexually attracted towards a member of his own gender or sex. Heterosexuals are those who are attracted towards a member of the opposite sex, bisexuals are those who are attracted to both the sexes, we also have members belonging to the “transgender community” whose gender identity differs from the sex assigned at birth. The members of homosexual, bisexual and transgender community are collectively called as the LGBT community wherein L refers to lesbians, G refers to gays, B refers to bisexuals, and T refers to transgender persons.
In India, Section 377 of the Indian Penal Code criminalised homosexuality calling it to be an “unnatural offence”. The backdrop of this provision is certain man-made norms which according to him was considered natural. Owing to these provisions the persons belonging to homosexual community were denied the right to sexual orientation and consensual sex with a person of his own gender. A matter which was of easy access to a heterosexual was a matter of battle to a member of homosexual community.
Effects of not recognising the LGBT rights:
Despite of the Indian judicial system widening the scope of the term “life” and “personal liberty” under Article 21 the members of LGBT community were still not given proper recognition. Families of the LGBT community members coerce them to undergo “conversion therapy” which will have serious impact in the persons mental health. Many countries have banned this therapy as it harms the mental health of the individual. The recent suicide of a student who was forcefully asked to undergo conversion therapy in Goa clearly shows the amount of mental pressure and trauma such therapies create in the minds of the LGBT community members.
How sexual orientation and consensual sex between two adults is a part of right to privacy:
The SC in the case of Justice K.S.Puttaswamy v. Union of India held that right to privacy is an inextricable facet of Article 21 of the Indian Constitution. While rendering the judgment justice D.Y. Chandrachud held that, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life”.
The harm theory: The harm theory propounded by John Stuart Mill states that, the State should not interfere into the private matters of the individual unless and until such act harms the society at large. Consensual sex is an act limited to the consenting adults alone and does not affect the society at large. Therefore, any intervention by the State in these matters would be an unreasonable and arbitrary State action which is prohibited under Article 14 of the Constitution.
The test of pressing social need: Similar to the harm theory, the test of pressing social need states that a State is expected to intrude only in those matters where there arises a pressing social hindrance. Therefore, by retaining section 377 IPC the State unreasonably intrudes into the private matters of consenting individuals. In fact, social need in the present case stands otherwise i.e. the “social need” in the present case is to enact welfare legislations to protect the rights of the LGBT community.
Therefore, based on the above test and theory section 377 of IPC is a clear violation of the private rights of the individuals.
The legal battle:
The Delhi High Court in the case of Naz foundation v. Govt. of NCT Delhi held that, section 377 of IPC will be unconstitutional to the extent it prevents consensual sex however, the provision will remain valid in case of non-consensual sex. Further, the Court opined that, this position of section 377 will remain until the Parliament makes necessary changes to the legislations.
However, the judgment was overruled by the SC in the case of Suresh Kumar Koushal v. Union of India wherein the Court held that, “ only a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and the High Court’s divisional bench in the anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, has extensively relied upon the judgments of other jurisdictions.” The judgment was heavily criticised by all members and supporters of the LGBT community.
Later the SC in its landmark judgment of Navtej Singh Johar v. Union of India read down section 377 of IPC and held that, the provision remains unconstitutional in the lights of Articles 14 and 21with regard to consensual sex between two individuals, but the consent given must be free, voluntary and devoid of any duress or coercion. However, the provision still holds good in case of non-consensual sex and sex with minors.
Further the SC in the case of National Legal Services Authority v. Union of India, recognised the “third gender rights” and directed the government to provide all necessities including medical care and reservation in educational institutions and public appointments to the transgender persons.
The need to enact laws to protect the rights of the LGBT community:
Decriminalisation of section 377 alone does not satisfy the need of the hour. Proper legislations have to be passed with respect to various rights of the community such as marriage, parenting, etc. LGBT community grievance redressal committee should be formed at district level to enable the community members to access justice without any delay. For any offences committed against the members of the LGBT community victim compensation should be granted under section 357A of CrPC.
The words in legislation may be the same however judicial interpretation has to take place from time to time in order to adapt the changing circumstances of the society. Being a homosexual or a transgender person does not make an individual devoid of his fundamental rights guaranteed under the Constitution which the person acquires by virtue of being born in this country.
- Justice K.S.Puttaswamy v. Union of India,AIR SC 4161 (2017).
- (2010) Cri.L.J. 94.
- CIVIL APPEAL NO.10972 OF 2013.
- (2018) 10 SCALE 386.
- (2014) 5 SCC 438.