Legalization of Homosexuality: An Analysis under Indian Judicial System

One of the common question that Indian Judicial system has been facing ever since of the dawn of human right is, should homosexuality be legalized? Here in this research paper, a mini timeline has been given for the current legal position of homosexual, lesbian, gay, bisexual and transgender LGBTQ community in India. India's honourable Supreme Court has given a decision that criminalizing consensual same-sex conduct is unconstitutional, is a major victory for human rights. In-fact, the LGBT people's right to privacy and right to equality in India make it become the world's second most populous country.

The Indian constitution plays a core role for providing LGBT community people for equal treatment and now the second-class citizens treatment based on their perceived sexual orientation have no place in today's modern India. The ruling follows a long struggle for the decriminalization of same-sex conduct in India.

In 2001, the Naz Foundation (India) Trust, an organization working on HIV/AIDS and sexual health, filed a case before the Delhi High Court, contending that Section 377 violated both the Indian constitution and international human rights law. On 2 July 2009 case: NAZ Foundation v. Government of NCT of New Delhi decided by a two judge bench of Delhi high court, is a landmark Indian case. The judgment held that “treating consensual homosexual sex between adults as a crime is violation of fundamental rights protected by India's Constitution”, and this verdict resulted in the decriminalization of homosexual acts among consenting adults throughout India.

Then in another case, Suresh Kumar Koushal and another v. NAZ Foundation and others, In this famous case of 11 December 2013 by Supreme court of India overturned the Delhi high court case NAZ Foundation v. Government of NCT of Delhi and reinstated section 377 of Indian Penal Code, as the Supreme court of India did not find enough reasons for the portions of sections 377 to be declared unconstitutional and hence the Delhi High Court judgment was overturned, recriminalizing sexual intercourse “against the order of nature”, as it was believed that the declaration made by the division bench of the high court is legally unsustainable.

One another case, Navtej Singh Johar and others v. Union of India, The Supreme Court on 6 September 2018 unanimously declared section 377 of the Indian Penal Code, which was a Victorian era law, unconstitutional. This case overturned a previous ruling Suresh Kumar Koushal v. NAZ Foundation. While the filing of the case by five people from the LGBT community, they argued that section 377 violated their fundamental rights.

In the light of the above mentioned cases, it is clear that a huge role has been played by Indian judiciary to legalize homosexuality.