There are some occasions in the history of human civilization when humanity smiles with all its dignity. There are some such decisions in the flow-time of a developing human society, when the way of putting marginalized humans into the mainstream of the society is cleared and they are made aware of their existence. In the democratic history of independent India, there have been many such decisions which make us realize our diversity, human dignity and constitutionalism. One of them is the recent Supreme Court judgment on homosexuality and section 377. The verdict is considered a milestone in the history of judicial hearings. The milestone is because the constitutional bench of five judges of the Supreme Court has unanimously excluded homosexuality as a crime.
Explain that a constitutional bench is brought into existence only when there is a question of interpretation of the Constitution or a matter of consideration of the question asked by the President. According to Article 145 (3) of the Constitution, this bench can be set up only in the Supreme Court and it will consist of at least five or more judges. Thus, the unanimous decision of the Constitutional Bench on the controversial issue like homosexuality in the case of Navtej Singh Zohar vs Union of India is historic.
At times, decisions are important not only because of constitutional supremacy or the defense of human dignity, but also because of the logical comment of the judges. In this sense, Chief Justice Deepak Mishra, Justice M Khanwilkar, Justice Rohington F Nariman, Justice DY Chandrachud and Justice Indu Malhotra will be remembered in history.
It is believed that this decision extends the spirit, consciousness, beats of the constitution and provides an explanation for making society inclusive. However, it has a wonderful explanation of a person’s privacy, his personality, his liking, his sexual relationships, love affairs, his thinking, his feelings, his companionship, the right of selection, etc. But it is a pity that the government did not show any stance in this development journey of Indian society started from 6 September 2018.
LGBTQ is excited by this decision, intellectuals are happy, religious section is angry, government is silent. For some, this decision is respect for human dignity, privacy and constitutional supremacy, for others it is an insult to Indian culture and family values. Some call it an extension of humanity and some call it a disdain for natural law and order.
The meaning of the saying is that since the decision came, the market for discussion on homosexual relationship and Section 377 is hot. Whether the Supreme Court or the government decides, ultimately it has to be in the society. Therefore, the question arises that what is the meaning of homosexuality and how has Indian society’s view of homosexuals? Is the collective will of Indian society exposed to this decision? Does this really make humanity proud or is it a contrary belief of the continuity of creation? The question also arises as to what is Section 377 and whether the recent judgment has completely repealed Section 377? Is the intervention of the state necessary in the absolutely personal love affairs of man? Overall, the basic question, if we say so, is whether natural supremacy can be abandoned under the guise of constitutional supremacy? Can practical difficulties in establishing the ideal be ignored? After all, what is the rationale of this decision of the Supreme Court and what will be its impact on Indian society, it is our objective to know.
Homosexuality and other aspects related to it –
Likewise, the word gay is used for people who are affectionately attracted to people of the same sex. However, this is not an absolute definition. Yet in general it can be assumed that homosexuality refers to a person being sexually and romantically attracted to people of the same sex. The male is attracted to the female and the female is attracted to the male and is called heterosexual and has the highest number of them. But there is also a small group of organisms, especially human species, whose point of attraction is different from them. For example, the attraction and affection of man towards man is called homosexual and woman’s attraction and affection towards woman is called lesbian.
In addition, some people are attracted to both the sexes, same and opposite, they are called biosexual. Some people are physically born as male or female but their mood is opposite to their gender. Therefore, they themselves change their gender to form their desired love affair and it is called transsexual.
As far as QUEER is concerned, such people are not sure about their sexual orientation. All these together are called LGBTQ and it is about 8 percent of the total Indian population i.e. about 10 and a half crores. These communities have been directly relieved by the recent decision of the Supreme Court. When we talk of relief, it is also necessary to know here that relief to LGBTQ is provided from that section 377 of the Indian Penal Code, under which their courtship was considered an offense.
Section 377 of the Indian Penal Code, made in the British period, talks about unnatural crime. The glimpse of this law can be seen in the “Bagri Act” which came into existence in England in 1533. Thus Section 377 states that “Any person who voluntarily commits physical intercourse with any man, woman or animal out of the natural order shall be guilty of an unnatural offense and shall be subject to life imprisonment or imprisonment for ten years or fine.” Or both will be punished. ” This system was going on for about one and a half years.
The judicial debate over this provision
Actually, there has been strong opposition to this law. The most powerful challenge was received by the Naz India Foundation in 2001, when a petition was filed in its context in the Delhi High Court. However, this petition was not considered hearable by the Delhi High Court initially. However, the Delhi High Court later heard this on the Supreme Court’s order and in 2009 ruled in favor of the petitioner, excluding LGBTQ’s courtship as a criminal act. With this decision it was natural to create a stir in the public domain. Therefore, some religious-cultural organizations went to the Supreme Court against the Delhi High Court’s decision. Therefore, the Supreme Court overturned the Delhi High Court’s decision in December 2013 and declared homosexual relations a crime. In this way, the ball was thrown into the government’s court. Due to its political compulsions, the central government remained in a dilemma in the matter and in the meantime the Supreme Court quashed a review petition.
But, in this game of natural and unnatural and check and check, the LGBTQ community continued its fight for human dignity. In February 2016, he got a major breakthrough when the Supreme Court heard the curative petitions and referred the matter to the constitutional bench. Let us state that after all appeals and reconsideration petitions are dismissed, curative petitions are the last weapon under which the President or Supreme Court agrees to hear a case decisively. Overall, this curative petition related to homosexuality was not only accepted but was also asked to form a constitutional bench.
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Meanwhile, in August 2017, the Supreme Court’s decision on the right to privacy came in which they considered the sex of two adult persons as protected under the right to privacy. That is, by this time, even the Supreme Court had made up its mind that there is a need for serious hearing on homosexuality. The government also agreed to resolve the issue through the Supreme Court. In this way, after almost two decades of legal battle, this revolutionary decision finally came. It is possible that the majority of the society is not happy with this decision. But, this decision must respect the privacy, human dignity and constitutional morality of the person.
n the twelfth century, Barahmihira, in his treatise Vrata Jataka, said that homosexuality is natural and this habit cannot be changed. Modern scientific researches have also proved that homosexuality is not a sudden habit or disorder, but it is a birth. If we look at this basis, then if a handful of people are separated from the love of the majority, have they become criminals? If we go on this sophistication, then all the people who practice worship in India apart from Hinduism, would also be criminals and India could never become a secular country. Therefore, the fact is that Khot is not in homosexual conduct but in the majority. It is due to its subordinated social morality that homosexuality is considered unnatural and punishable. Therefore, Indian society needs to come out of this false consciousness. Not only social morality and majoritarianism can determine the destiny of an independent community, but the task is that of the constitution.
Constitutional ethics
Constitutional ethics are intended to guarantee the fundamental rights of every citizen and not to protect the unrestrained desire of ethnic, religious, cultural or linguistic majorities. The standard of society may be driven by stereotypes and majority beliefs, but the constitution’s criterion is human dignity and equality. Therefore, it is unfair to create a barrier to social morality against constitutional ethics.
As far as the basis of the decision of the court in favor of homosexuality is concerned, there is certainly a sense of respect for human dignity and the defense of fundamental rights. Intervention of power in the mutual relationship formed by the mutual consent of two adults is a violation of the rights of equality, gender, privacy and selection of the individual. Even if it is a homosexual relationship, it is considered a criminal to violate the fundamental rights described in Articles 14, 15 and 21 of the Constitution.
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This was not only contrary to the Indian Constitution’s principle of equality, gender-neutrality and life and personal liberty, but it was synonymous with a society based on discrimination even in this era of modernity. Just as it is wrong to treat whites on the basis of caste-system and color on birth, similarly it is wrong to treat homosexuals as criminal. If constitutional provision can be made for elimination of caste-system and untouchability. How can it be disastrous to legislate against discrimination against homosexuals?
This is a progressive step in the direction of freeing the values of society from the stereotypes. The Court recognized the eunuch as a third gender for empowerment of eunuchs in 2014 and also included sex and its selection in the right to privacy in 2017, so its next stop would be gay sex out of the guilt category. Had to do. Section 377 was contrary to the principle of fairness and punishment. The 121st review report of the Law Commission also suggested the removal of section 377.
Clearly, this decision of the Court is going to establish not only human dignity but also constitutional supremacy. Today, homosexuality is legally recognized in 26 countries of the world, so why should India place its one and a half million citizens in criminal status. Therefore, it is a far-reaching decision to fully equip 100 million gay people with civil rights. It is also worth noting here that Section 377 has been neutralized to a great extent under this decision, but it has not been repealed completely. This stream will continue in the context of unnatural sex with animals.
Recent judicial decision on practical ground
Whatever we may say, but theoretically cannot prove homosexuality as illegitimate or a criminal act. Yes, but in practice the blame of its social reward cannot be denied. It also cannot negate health concerns and the possibility of erosion of marital-family values. However, the court has just refused to consider homosexuality a criminal act and not a gay marriage.
Apart from this, its adverse effect in military organizations also cannot be ruled out. After this decision, the Indian Army will need to change its rules, because till now homosexual relations were strictly forbidden in the army and the provision of court martial if it is confirmed. Was. Therefore, it can be said that this decision of the Supreme Court is compatible with human dignity. But, to some extent it is also against the practicality. Yet practical difficulties in establishing an ideal society cannot be ignored.
The essence of all the discussion is that this decision of the Supreme Court has not only established the importance of human dignity, but has also affected the internality of Indian society. However, there is also no denying that any change is initially painful. But its far-reaching impact is expected to be positive for Indian society. Secondly, society or system never gives natural rights of human beings by serving them on a plate easily. Rather, a human always has to struggle for that. Neither we have got freedom of expression easily nor have any other rights. LGBTQ communities have also had to fight a long battle for this right, so it has special significance. The third and most important thing is that in fact the development of human civilization is not one-linear but rather multi-dimensional. It is not necessary that the majority of the society considers it to be the moral ideal of the whole society. In the concept of modern democracy, the importance of democracy has been established over the society, religion or state and the fundamental rights of every person have been protected. In a strong and vibrant democracy, social ethics cannot reduce or eliminate constitutional ethics. It is a sign of a strong democracy that it respects diversity and upholds constitutional supremacy. The Legitimacy of Democracy is that it should give ample opportunity to prosperity as well as minorities. India is the largest democracy in this world, so India has the highest moral responsibility to establish democratic values and human dignity. We have to understand that the fundamental rights conferred cannot be revoked. That is, it is non-retrograde. Making such an effort would also be playing with human rights. However, this decision was not taken on the scales of social morality, but for human dignity and constitutional ethics.
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