A Study on Unnatural Offences and LGBT Community: the Present Scenario.

Authors – Sanchit Bhalla and Prateek Goyal

Abstract

This paper speaks with concerning Unnatural Offences & LGBT Community in India. It actually focuses on Homosexuality along with the transformation, the judgments, and the causes against such relations. Moreover, it will throw light upon the LGBT Community that is commonly known as Lesbians, Gays, Bisexuals and Transgender. It will interpret on the Homosexuality on the basis of communal and intellectual reasons. It mainly includes Section 377 of Indian Penal Code, 1860 which describes Unnatural Offences and punishments. Right in the beginning, it discusses the constitutional validity of unnatural offences. Then there comes the LGBT Rights in India along with legal status of homosexuality. Furthermore, it will include the detailed understanding of inequality and hatred against such community in India. There are six religions in India and according to the law all religions are treated equally. But there have been many hardships in India to accept such community.

Key words: unnatural offences, homosexuality, communal, intellectual 

Introduction

Usually, people attract to the opposite sex. That is males are attracted towards females and females attracted towards males. This attraction can be basis of anything that a boy or a girl finds fascinating towards each other. That can be personality, looks, intelligence, emotional attachments and so on. But recently there have been seen, in some cases, that the people are getting attracted to the people with same sex. That is males are getting attracted towards other males and females are attracted with females. This same sex attraction is called Homosexuality and such people are called Homosexuals. Mainly Homosexuals are of two kinds i.e. Gays (male: male) and lesbians (female: female). Other kinds include Bisexuals and Trans- sexual.

• Causes for homosexuality

The causes for someone to become homosexuals are actually genetic. But reasons are not yet absolutely recognized. According to some researchers it can be due to some biological changes that occur in mother’s womb before a child is born. But doctors do not yet confirm these reasons. Some say that a person chooses their sexual orientation after they meet different people of same sex and gets attracted towards them.

• Biological Factors

Some researchers say that it is qualities in the body of oneself that matters the most and decides whether they are homosexual or not. Therefore, it can be due to some heredity aspects as well. But no researches say it confidently.  These are some assumptions made out of the report of researchers.

• Constitution of India

India is a powerful and a developing country having the well-written constitution that is dynamic in nature. It advances according to the needs of the citizens. This is why it not static but dynamic. The constitution of India gives equal rights and protection to each and every citizen of India. The Indian constitution does not discriminate caste, sex, religion and color. Each and every citizen is equal before and under the law.

LGBT Community is in minority and people should understand that these people also have same basic rights like every other citizen in India. Part III of Indian constitution guarantees fundamental rights which every citizen of India has. These are 

• Right to Equality
• Right to Freedom
• Right Against Exploitation
• Right to Freedom of Religion
• Cultural and Educational Rights
• Right to Constitutional Remedies

Yet LGBT community is refused to enjoy these fundamental rights to the fully and are considered separated from their own societies.

Section 377 Of The IPC

One of the important sections in our law system is Section 377 of the Indian Penal Code, 1860 that defines and explains the unnatural offences.
Unnatural Offences: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”
Explanation: According to this section Penetration is sufficient to complete the bodily intercourse to make the offence.
Therefore, it will constitute to a criminal offence if any copulation conducted against the will of the nature. Consent between two persons with similar sex is inconsequential. In other words, section 377 of the Indian constitution says that no grownups of same sex can indulge into intimacy or copulation that is not satisfactory to the constitution. LGBT communities are demanding to remove this section as it is against the nature and will of our modern society.
Constitutional Validity of Unnatural Offences under Section 377 IPC, 1860
For revoking Section 377 the case was held under Delhi High Court Bhedbhav V Virodi Andolan in 1991. “In its 105-page judgment in July 2009, the Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that Section 377 of the IPC is violated of Article 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to Equality under the Steady gaze of Law) and Article 15(Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the Constitution.” Therefore, the High Court of Delhi outlawed Section 377 on 02 July 2009.
Controversies in Favor Of Section 377
At that time, many people were of the view that LGBT’s shouldn’t be treated as equal as these people were the exceptions to the society. Many temples of India and even the Muslim Community were against Homosexuality. Several people were of the view that if any copulation is done in between the persons of similar sex then there are high chances they will get infected with sexually transmitted diseases like HIV/AIDS. So, therefore Section 377 should continue in the Indian legal system and should not be decriminalized. Many activists at that time started protesting to continue Section 377 in order to end the LGBT’s from India. Even Baba Ramdev stated that “Homosexuality is a disease and yoga can cure it.”
Controversies against Section 377
There were also people who were in support of LGBT’s and were of the view that Section 377 should be removed from Constitution of India as it contravenes Article 21 Right to Protection of Life and Personal Liberty, Article 14 Right to Equality Before Law and Article 15 Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth of the Constitution.
Various Unions, like People’s Union for Civil Liberties started working on such issues and derived that homosexuals are exploited heavily throughout the nation and police are also involved and liable in such issues. Many police officials threaten and bully Homosexuals and acquire cash on gunpoint from them. Homosexuals were treated like animals from the society as they helpless. Now, there is Protection of Children from Sexual Offences Act (POSCO), 2012 for teenagers and minors. So Section 377 should be excised from the Constitution of India as it includes suffering of life confinement. However, Delhi HC outlawed Section377 but SC upturned ruling in 2013.

LGBTQ Long Battle for rights in India: – 15 Years of Battle

• 2001: – A PIL was filed in Delhi High Court by Naz Foundation for legislation for same sex among consulting adults
  2004: – PIL filed for decriminalization of same sex was dismissed by High Court. After that Gay rights activist filed a case in high court for review of petition. But on November 2004 High Court dismissed the activist review petition. But still Activist reached Supreme Court of India in December 2004 to replace the decision of High Court
  2006: – Supreme Court directed High Court to take a look at the matter again.
  2008: – After the contradictory stand between home ministry and health ministry, Centre takes more time to take stand on the issue.
  On September 2008 Gay Activist contended they have Fundamental Rights to equality and government cannot infringe their rights. But according to Centre gay sex is immoral and reflection of a perverse mind. And its decriminalization would lead to moral degradation of the society.
  2009: – Delhi High Court in July finally legalizes gay sex among consulting adults but Delhi astrologer challenges High Court verdict in apex court.
  2012: – Supreme Court of India begins its final day’s arguments in the case.
  2013: – On December Supreme Court removed the judgment of Delhi High Court which ordered to decriminalized LGBTQ sex. Government filed petitions in Supreme Court to drop gay sex ban.
  2014: – Central Government petition for reviewing supreme court verdict got dismissed by Supreme Court.
  2018: – Finally on September 6, 2018 LGBTQ sex become legal in India under Section 377 of IPC (Indian Penal Code).

Homosexuality Legal Status in India

Supreme Court of India on 24^th August 2017 gave LGBTQ community the freedom to safely express their sexual orientation. Under Right to privacy law an individual sexual orientation is protected. 

6^th September 2018 gay consensual sex was legalized by the apex court. 

In India law section 377 of IPC Identified with homosexuality and it was received by British Penal Code dating till 19^th Century. According to Section 377 of IPC (Indian Penal Code)

Unnatural offences —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Basically on 6^th September 2018 consensual gay sex among adults was legalized by Supreme Court of India. 

Conclusion

India is a country wherein people comply with traditions and customs blindly without understanding that such traditions may be changed in line with the desires of the society. Most importantly, the Constitution of India needs to be revised accordingly as per the rights and desires of the evolving society. Moreover, LGBT Community was given a lift in July 2009 while HC stated that Homosexuality need to be decriminalized.  But the SC court reversed this decision and stated that India isn’t always but prepared for such changes. Even after this, Congress MP Shashi Tharoor proposed a Private Member’s ill in 2015. But the authorities were not taking much interest to pass such bills. Subsequently, many activists such as NS Jauhar and other activists approached the SC who agreed to rethink the issue. The petition claimed that the sexuality, sexual autonomy, desire of sexual partner, life, privacy, dignity and equality are being violated in section 377. Finally, Homosexuality is being decriminalized with the aid of using SC in 2018.

The society of India is continuously changing. People are actually accepting each sort of character whether or not the man or woman consists of in LGBT network or not. So for that, the constitution must additionally get altered according to the humans ignoring a few antique customs and traditions. As the identification of the person matters the most. It does now no longer make any distinction whether or not the person is gay, lesbian or both. If someone is abusing the identity of the person, then he is truly messing up together along with his life.