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By Harpreet Kaur, UILS, Panjab University, Chandigarh

images5RSDFNA2 300x151 Human Rights and Section 377 of Indian Penal Code

“Equality.  Absolutely. That’s what defines us. It’s what makes us great. If it doesn’t sit well with your religion, let your God sort it out in the end, but that’s us. We’re equal.”

-Brad Pitt

Background: Homosexuality has been practiced for thousands of years and is documented in various religious and cultural texts. In the Hebrew Bible, the book of Leviticus proscribed male homosexuality and demanded the death penalty. Moreover, in Indian Vedic traditions, there are numerous positive descriptions of same sex unions and transgendered gods. Ancient Greece and Rome also had tolerant views on same sex and it was not until the growing influence of Christianity in antiquity that homosexuals were persecuted. As Christianity spread, acts of sodomy were increasingly persecuted in Europe although there were notable exceptions, such as Poland which has never banned homosexuality. By the late 18th century views began to soften and France became the first European country to abolish sodomy laws. This was followed by similar laws in the Netherlands, Indonesia and Brazil. Although views on Lesbian, Gays, Bisexual and Transgendered (LGBT) rights became more tolerant since the 18th century there are still many countries which heavy penalties for homosexual acts and many who identify as LGBT do not have same rights as other citizens.

We all have a sexual orientation and a gender identity and this shared fact means that discrimination against members of the LGBT community based on sexual orientation or gender identity is an issue that transcends that community and affect all of us. Eliminating discrimination and establishing LGBT equality is a global initiative. Activists, lawyers and politicians are fighting policies that unfairly discriminate against the LGBT community. For example, until recently homosexuals were not allowed to openly serve in the United States military. The Don’t Ask Don’t Tell Policy was finally repealed in 2011 after a long fight, but other concerns remain. The LGBT community in the U.S. still does not enjoy the same equality rights as other citizens with regard to marriage, adoption and other legal rights. Other activists are working throughout the world to repeal laws that make homosexuality a crime. Nearly 80 countries have anti-sodomy laws or criminal statutes banning homosexuality.

International Instruments for the protection of rights of LGBT: Although the Universal Declaration of Human Rights (UDHR) does not explicitly mention sexual orientation or gender identity, evolving conceptions of international human rights law include a broad interpretation to include the rights and the protection of the rights of LGBT people around the world. For instance, Article 16 of UDHR says: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

Also, the Yogyakarta Principles on the Application of International Human Rights in Relation to Sexual Orientation and Gender Identity, developed in 2006 by a group of LGBT expert experts in Yogyakarta, Indonesia in response to well-known examples of abuse, provides a universal guide to applying international human rights law to violations experienced by LGBT people to ensure the universal reach of human rights protections. However, the range of limitless and it contravenes the fundamental tenets of international human rights law. Human rights abuses based on sexual orientation or gender can include violation of the rights of the child; the infliction of torture and cruel, inhuman and degrading treatment; arbitrary detention on the grounds of identity or beliefs; the restriction of freedom of association and the denial of the basic rights of due process.

Further, ILO Convention (No. 111) on Discrimination in Employment or Occupation (1958) does not itself prohibit discrimination on the basis of sexual orientation (article 1) but permits state parties to add additional grounds. In Australia implementation of the Convention in domestic law contributed to the ban on lesbians and gay men in the armed forces in 1992.

Moreover, International Covenant on Civil and Political Rights (1966) (article 2, 26)- the main international treaty on civil and political rights- important with regards to the sexual orientation because in 1994, in the Toonen v. Australia, the Human Rights Committee held that references to ‘sex’ in Articles 2(1), non-discrimination and 26 (equality before the law) of the ICCPR should be taken to include sexual orientation. As a result of this case, Australia repealed the law criminalizing sexual acts between male in its state of Tanzania. With this case, the Human Rights Committee created a precedent within the UN human rights system in addressing discrimination against LGBT.

Where did problem arise: Last week, the Hon’ble Supreme Court of India in the case of Suresh Kumar Koushal & Anr. v. Naz Foundation and Ors. delivered a verdict that section 377 is not unconstitutional. The section does not talk about the rights of LGBT as such. It merely punishes any sexual intercourse which is believed to be against the order of nature such as anal or oral sex whether consensual or not. Homosexuality had been made illegal more than 150 years ago when British colonial officials deemed ‘sexual relations between men’ to be ‘carnal acts against the order of nature’ in section 377 of Indian Penal Code, 1860. It is based on Judeo-Christian moral and ethical standards which conceive of sex on purely functional terms, that is, for procreation. Post independence the section remained on the statute books and is now seen as part of Indian values and morals.

Section 377 provides that “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 a term which may extend to ten years and shall also be liable to fine”. It is clear from the section that consent is no defence to an offence under section 377, IPC and no distinction regarding age is made in the section. It makes consensual anal or oral punishable even done in private. Thus, it makes homosexuality punishable since the members of LGBT community usually have oral or anal intercourse.

Delhi High Court Judgment: In the case Naz Foundation v. Government of India (decided on July 2, 2009) Delhi High Court overturned the 150 year old section legalising consensual activities between adults. It was held that the essence of the section goes against the fundamental rights of citizens.

In a 105-page judgment, a bench of Justice A.P Shah and Justice S. Muralidhar said that if no amended, section 377 of IPC would violate Article 14 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before the law. The petitioner contended that public morality is not a province of criminal law and section 377 IPC does not have any legitimate purpose. Public animus and disgust towards a particular social group or vulnerable minority is not a valid ground for classification under Article 14. Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people. As per Union of India, the stated object of section 377 is to protect women and children, prevent the spread of HIV/AIDS and enforce societal morality against homosexuality. However, it was observed by the Delhi High Court that it is clear that section 377IPC, whatever is present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality and specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private….The criminalisation of private sexual relations between consenting adults absent any evidence  of serious harm deems the provision’s objective both arbitrary and unreasonable. The state interest ‘must be legitimate and relevant’ for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable….Section 377 IPC is a facially neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community. The fact is that these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class. Section 377 IPC has the effect of viewing all gay men as criminals.

Further, petitioner argued that Article 15 prohibits discrimination on several enumerated grounds, which include ‘sex’ and sex under Article 15(1) must be read expansively to include a prohibition of discrimination on ground of sexual orientation as the prohibited ground of sex-discrimination. It was observed by the High Court that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalization concerning ‘normal’ or ‘natural’ gender roles. Discrimination on the basis of sexual orientation is itself grounded in stereotypical judgments and generalization about the conduct of either sex.

It was said by the High Court that “we hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access of public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even in horizontal application of the right enshrined under Article 15”.

With regards to privacy, it was held that “the way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy…..For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes….The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377, IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus, violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.”

The Union Ministry of Home Affairs has opposed the petition claiming that section 377 IPC is a ‘justified interference by public authorities in the interest of public safety and protection of health and morals’. On the other hand, Union Ministry of Health and Family Welfare has supported the petition and admitted that Section 377 IPC, by criminalising consensual sex between adults of the sex, hampers HIV intervention efforts aimed at sexual minorities. Moreover, it was pleaded by NACO that section 377 acts as a serious impediment to successful public health interventions. According to NACO, those in the High Risk Group are mostly reluctant to reveal same-sex behaviour due to fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them. It was observed by the High Court that there is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality….if court does find that a claimed right is entitled to protection as fundamental privacy right, the law infringing it must satisfy the compelling state interest test. While it could be ‘a compelling state interest’ to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a ‘compelling state interest’ to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.”

Hence, it was declared by the High Court that “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”

Decision of Supreme Court: The bench of Justices Singhvi and S.J. Mukhopadhaya reversed the Delhi High Court’s 2009 verdict and held that the 150-year old section 377, criminalizing gay sex, “does not suffer from the vice of unconstitutionality”. The judgment turned the clock back and was being viewed in India and globally as a retrograde step. The possibility of police harassment of homosexuals could no longer be ruled out.

Supreme Court while dealing with the issue relating to the scope of judicial review of legislation said that since section 377 IPC is a pre-constitutional legislation, it has been adopted after enactment of the Constitution, it will be useful to analyse the ambit and scope of the powers of the superior Courts to declare such a provision as unconstitutional…A plain reading of these Articles suggests that the High Court and this Court are empowered to declare as void any pre-constitutional law to the extent of its inconsistency with the Constitution and ay law enacted post the enactment of the Constitution to the extent that it takes away or abridges the rights conferred by Part III of the Constitution. In fact a constitutional duty has been cast upon this Court to test the laws of the land on the touchstone of the Constitution and provide appropriate remedy if and when called upon to do so. Seen in this light the power of judicial review over legislations is plenary. However, keeping in mind the importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody, self restraint has been exercised by the judiciary when dealing with challenges to the constitutionality of laws. This form of restraint has manifested itself in the principle of presumption of constitutionality…..Every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality….There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment….The doctrine of severability and the practice of reading down a statute both arise out of principle of presumption of constitutionality and are specifically recognized in Article 13 which renders the law, which is pre-Constitutional to be void only to the extent of inconsistency with the constitution…Declaring the law unconstitutional is one of the last resorts taken by the Courts. The Courts would preferably put into service the principle of ‘reading down’ or ‘reading into’ the provision to make it effective, workable and ensure the attainment of the object of the Act…After the adoption of IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has made any law. It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”

Further, it was observed by the Supreme Court that “the IPC along with section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 6.10.1860. The understanding of acts which fall within the ambit of section 377 has changed from non-procreative to imitative of sexual intercourse to sexual perversity.”

While considering whether the High Court was justified in entertaining challenge to section 377 IPC despite the respondent No. 1 had not laid factual foundation to support its challenge; Supreme Court observed that the writ petition filed by respondent No. 1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM (males who have sex with males) community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No. 1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.”

Regarding unconstitutional classification, it was observed by the Supreme Court that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that section 377 suffers from the vice of arbitrariness and irrational classification. What section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring section 377 IPC ultra vires Articles 14 and 15 of the Constitution. While reading down section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the Country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

Further Supreme Court observed that respondent No. 1 attacked section 377 on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section..In its 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, the High has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for the constitutionality of the law enacted by the Indian legislature.”

The Bench said: “In the light of plain meaning and legislative history of the section, we hold that section 377 IPC would apply irrespective of age and consent.”  It added that the section does not discriminate any group with a particular sexual preference, a stand that was diametrically opposite to that by the Delhi High Court. Justice Singhvi Said, “It is relevant to mention here that section 377 IPC does not criminalise a particular people or identity or orientation. It merely identifies acts, which if committed, would constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation” Justice Mukhopadhaya added “the said section does not suffer from any constitutional infirmity”. However, a clarification followed. The Judges said, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting section 377 IPC from the statute or amend the same as per the suggestion made by the Attorney General”.

Response of the people after the judgment of Supreme Court:

AGAINST THE JUDGMENT: The Supreme Court, by reversing the 2009 Delhi High Court ruling that decriminalized same-sex conduct between consenting adults, failed to recognize everyone’s internationally protected right to privacy and non-discrimination,” said Meenakshi Ganguly, the South Asia director of Human Rights Watch, in a statement. “The Supreme Court’s ruling is a disappointing setback to human dignity.”

“I am thoroughly disgusted and disappointed that the Supreme Court can be party to taking away the rights of a section of the country’s citizens,” Ashok Row Kavi, a veteran LGBT activist told TIME. “India was being looked upon as a model for reform of the anti-sodomy law. This is a huge set back not just for the morale of the LGBT community but also a blow for India’s very successful fight against HIV.”

Vikram Seth, the award-winning author of ‘A Suitable Boy’ who has written about his bisexuality, said the judges’ ruling had made him a criminal. “There is a barbarism in treating choices of consenting adults as a crime. I wasn’t a criminal yesterday. Today I am. I intend to continue being a criminal,” he said.

Arvind Narayan, a lawyer for the Alternative Law Forum representing gay rights activists, said the ruling was a “black day for the community”.

“The Supreme Court’s ruling is a deeply disappointing setback for basic rights to privacy, equality, and non-discrimination,” said Graeme Reid, director of the LGBT rights program at Human Rights Watch. “Now the government should do what it should have done in the first place and decriminalize consensual same-sex relations between adults.”

Congress Vice President Rahul Gandhi has slammed the Supreme Court verdict which upheld Indian Penal Code Section 377 and said the people should have the right of freedom of expression on this issue as well. “My personal view is that these are matters left to individuals. I agree with (Delhi) high court’s view on decriminalising gay sex,” said the Congress leader in a brief press conference.

“I am disappointed that the Supreme Court has reversed the previous Delhi high court ruling on the issue of gay rights. The high court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our constitution,” Congress president Sonia Gandhi said in a statement, in a rare reaction to a court order.

“I hope that Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgment,” she said in a statement. “It’s gone back to 1860. I don’t want to take names but those politicians opposing it, it’s unfortunate. The government must go for review petition or curative petition,” said Chidambaram. His views were echoed by Law and Justice Minister Kapil Sibal who tweeted: “The Govt is considering all options to restore the High Court verdict on #377. We must decriminalise adult consensual relationships.”

Also, The Aam Aadmi Party issued a statement condemning the Supreme Court’s decision to overturn a Delhi High Court order which had declared section 377 of the Indian Penal Code unconstitutional, thereby decriminalizing homosexuality. A statement uploaded on the party website said that AAP was highly disappointed by the Supreme Court order.

Human Rights 239x300 Human Rights and Section 377 of Indian Penal Code

In an event on sexual orientation at UN Headquarters in New York, held in conjunction with Human Rights Day, Mr. Ban deplored discrimination against homosexuals and the violence of which they are often victims, for which the perpetrators escape punishment. “Together, we seek the repeal of laws that criminalize homosexuality, that permit discrimination on the basis of sexual orientation or gender identity, that encourage violence,” he said. “When individuals are attacked, abused or imprisoned because of their sexual orientation, we must speak out. We cannot stand by. We cannot be silent. This is all the more true in cases of violence. These are not merely assaults on individuals. They are attacks on all of us. They devastate families. They pit one group against another, dividing larger society. And when the perpetrators of violence escape without penalty, they make a mockery of the universal values we hold dear.” Mr. Ban recognized that social attitudes run deep and social change often comes only with time, but he highlighted the collective responsibility to stand against discrimination, to defend fellow human beings and fundamental principles.

FOR THE JUDGMENT: While Congress has been vocal about this particular issue, BJP leadership has been largely mum about this issue save and except Subramanian Swamy who has been very vocal in his support of the Supreme Court Judgement which is very evident from his Twitter timeline.

Baba Ramdev who admittedly has been campaigning for BJP all over Madhya Pradesh and Chhattisgarh for the elections also came out in support of the SC Judgement and did his bit in marketing the ‘magic drugs’ that are sold from his Ashram in a televised statement. “I invite the gay community to my yoga ashram and I guarantee to cure them of homosexuality. Homosexuality is not genetic. If our parents were homosexuals, then we would not have been born. So it’s unnatural”.

Appreciating the Supreme Court’ verdict at a joint press conference on 19.12.2013 of Hindu, Muslim, Sikh and Christian religious leaders, president Maulana Syed Jalaluddin Umari said homosexuality was against nature. “When homosexuality is not even visible in animals, how can it be practical in human beings which are considered to be most creatures,” he said. Maulana threatened that any amendment by Parliament in the section 377 to make law lenient for homosexuality would not be tolerable. Jagat Guru Swami Anand of Sanatan Dharm said with its decision, the apex court had prevented the country from going on to the path of destruction. Late marriage is the cause of homosexuality, he claimed. Christian religious leader Father Dominic Emmanuel said in Bible it was clearly mentioned that a man could marry a woman. It is natural and beneficial for the society, he said. Chief Granthi of Gurudwara Bangla Sahib, Gyani Ranjit Singh, also hailed the Supreme Court order saying that same-sex marriage should not be allowed.

Regarding Baba Ramdev’s statement, researcher would like to submit that homosexuality is not a disease nor even a choice. It is natural due to some gene regulation which has been proved by various research which have been conducted.

To check out about research, kindly refer this:

http://www.foxnews.com/health/2012/12/11/homosexuality-ultimately-result-gene-regulation-researchers-find/

Views about Homosexuality around the Globe: The view that homosexuality should be accepted by society is prevalent in most of the European Union countries surveyed. About three-quarters or more in Spain (88%), Germany (87%), the Czech Republic (80%), France (77%), Britain (76%), and Italy (74%) share this view, as do more than half in Greece (53%). Poland is the only EU country surveyed where views are mixed; 42% say homosexuality should be accepted by society and 46% believe it should be rejected.

Canadians, who already expressed tolerant views in 2007, are now even more likely to say homosexuality should be accepted by society; 80% say this, compared with 70% six years ago. Views are not as positive in the U.S., where a smaller majority (60%) believes homosexuality should be accepted. But Americans are far more tolerant today than they were in 2007, when 49% said homosexuality should be accepted by society and 41% said it should be rejected.

Opinions about homosexuality are also positive in parts of Latin America. In Argentina, the first country in the region to legalize gay marriage in 2010, about three-quarters (74%) say homosexuality should be accepted, as do clear majorities in Chile (68%), Mexico (61%) and Brazil (60%); about half of Venezuelans (51%) also express acceptance. In contrast, 62% of Salvadorans say homosexuality should be rejected by society, as do nearly half in Bolivia (49%).

In the Asia/Pacific region, where views of homosexuality are mostly negative, more than seven-in-ten in Australia (79%) and the Philippines (73%) say homosexuality should be accepted by society; 54% in Japan agree.

Publics in Africa and in predominantly Muslim countries remain among the least accepting of homosexuality. In sub-Saharan Africa, at least nine-in-ten in Nigeria (98%), Senegal (96%), Ghana (96%), Uganda (96%) and Kenya (90%) believe homosexuality should not be accepted by society. Even in South Africa where, unlike in many other African countries, homosexual acts are legal and discrimination based on sexual orientation is unconstitutional, 61% say homosexuality should not be accepted by society, while just 32% say it should be accepted.

Overwhelming majorities in the predominantly Muslim countries surveyed also say homosexuality should be rejected, including 97% in Jordan, 95% in Egypt, 94% in Tunisia, 93% in the Palestinian territories, 93% in Indonesia, 87% in Pakistan, 86% in Malaysia, 80% in Lebanon and 78% in Turkey.

Elsewhere, majorities in South Korea (59%) and China (57%) also say homosexuality should not be accepted by society; 39% and 21%, respectively, say it should be accepted. South Korean views, while still negative, have shifted considerably since 2007, when 77% said homosexuality should be rejected and 18% said it should be accepted by society.

Position in England: Before and during the formation of the UK, Christianity and homosexuality clashed. Same-sex sexual activity was characterised as sinful and, under the Buggery Act 1533, was outlawed and punishable by death. LGBT rights first came to prominence following the decriminalisation of same-sex sexual activity across the UK between 1967 and 1982.

Since the turn of the 21st century, LGBT rights have increasingly strengthened in support. Some discrimination protections had existed for LGBT people since 1999, but were extended to all areas under the Equality Act 2010. In 2000, Her Majesty’s Armed Forces removed its ban on LGBT individuals serving openly. The age of consent was equalised, regardless of sexual orientation, in 2001. Transgender people have had the right to change their legal gender since 2005. The same year, same-sex couples were granted the right to enter into a civil partnership, a similar legal structure to marriage, and also to adopt in England and Wales. Scotland later followed on adoption rights for same-sex couples in 2009, though Northern Ireland currently only permits a single LGBT person to adopt. Following the passage of the Marriage (Same Sex Couples) Act 2013, same-sex marriage will come into effect in England and Wales on 29 March 2014 and there is a bill to propose to have it introduced in Scotland by 2015, but will remain unrecognised in Northern Ireland.

Today, LGBT citizens have most of the same legal rights as non-LGBT citizens and Britain provides one of the highest degrees of liberty in the world for its LGBT communities. In ILGA-Europe’s 2013 review of LGBTI rights, Britain received the highest score in Europe, with 77% progress toward “respect of human rights and full equality.”

Conclusion: Even the British who made these provisions are progressing in order to achieve human rights for all. Then, WHY ARE WE STILL RETAINING THOSE CENTURY OLD PROVISIONS WHICH ARE OUTDATED AND INFRINGE THE VERY BASIC HUMAN RIGHTS OF A CERTAIN COMMUNITY? The Indian Legislature should not wait for any case relating to the harassment of LGBT community people to come up and make a law repealing this 150 year old section from the Indian Penal Code. The researcher would like to end this article a quote:

“Understand that sexuality is as wide as the sea. Understand that your morality is not law. Understand that we are you. Understand that if we decide to have sex whether safe, safer, or unsafe, it is our decision and you have no rights in our lovemaking.”

Derek Jarman

References:

  1. http://www.publicadministration.net/resources/gay-and-lesbian-human-rights/
  2. http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights
  3. http://www.defense.gov/news/newsarticle.aspx?id=65857
  4. http://www.publicadministration.net/resources/gay-and-lesbian-human-rights/
  5. http://thenewcivilrightsmovement.com/lgbt-rights-united-nations-report-finds-being-gay-illegal-in-76-countries-1/international/2011/12/16/31980
  6. http://www.amnestyusa.org/research/human-rights-basics/universal-declaration-of-human-rights
  7. http://world.time.com/2013/12/11/homosexuality-is-criminal-again-as-indias-top-court-reinstates-ban/
  8. http://www.telegraph.co.uk/news/worldnews/asia/india/10509952/Indias-top-court-upholds-law-criminalising-gay-sex.html
  9. http://www.hrw.org/news/2013/12/12/india-supreme-court-ruling-undermines-lgbt-rights
  10. http://articles.timesofindia.indiatimes.com/2013-12-12/india/45120907_1_delhi-hc-section-377-ipc-supreme-court
  11. http://www.pewglobal.org/2013/06/04/the-global-divide-on-homosexuality/
  12. http://en.wikipedia.org/wiki/LGBT_rights_in_the_United_Kingdom
  13. http://ibnlive.in.com/news/rahul-gandhi-disappointed-with-sc-order-on-section-377/439245-3.html
  14. http://www.truthofgujarat.com/bjp-narendra-modis-stand-atrocious-sc-judgement-sec377/
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  • harpreet kaur

    LATEST UPDATE ON THIS ISSUE:

    SC refuses to review its verdict criminalizing gay sex

    The Supreme Court has refused to review its verdict on criminalizing gay sex.

    A bench of justices H L Dattu and S J Mukhopadhaya dismissed review
    petitions filed by the Centre and gay rights activists against its
    December 2013 verdict.

    Seeking stay on the operation of the
    judgement, gay rights activists, including NGO Naz Foundation, said
    thousands from the LGBT community became open about their sexual
    identity during the past four years after the high court decriminalised
    gay sex and they are now facing the threat of being prosecuted.

    They submitted that criminalizing gay sex amounts to violation of fundamental rights of the LGBT community.

    The NGO submitted there are a number of “grave errors of law” and
    “wrong application of law” in the judgement which needs to be corrected.

    “This court has failed to consider the submission that
    Section 377 violates the right to health of men who have sex with men,
    since criminalization of same sex activity impedes access to health
    services, including HIV prevention efforts. This contention was
    supported by the Ministry of Health and Family Welfare in this court,”
    the petition said.

    Amid huge outrage against the judgement, the Centre also filed a review petition in the apex court.

    The Centre sought review to “avoid grave miscarriage of justice to
    thousands of LGBT” persons who have been aggrieved by the apex court
    judgement contending it is “unsustainable” as it “suffers from errors”.

    While setting aside the July 2, 2009 judgement of the Delhi high court,
    the apex court had held that Section 377 (unnatural sexual offences) of
    the IPC does not suffer from the vice of unconstitutionality and that
    the declaration made by the high court is legally unsustainable.

    Source: TOI