"It’s just really important that we start celebrating our differences. Let’s start tolerating first, but then we need to celebrate our differences." -Billie Jean King

In India, homosexuality was historically stigmatized and criminalized under Section 377, compelling individuals to hide their true identities and prioritize societal expectations over personal desires. This legal and social repression created an environment where LGBTQIA+ individuals faced significant challenges, including social ostracism and legal penalties.

However, a landmark Supreme Court ruling on September 6, 2018, decriminalized homosexuality, affirming that the right to choose one's partner is essential to living with dignity as guaranteed under Article 21 of the Constitution. This decision marked a transformative moment for the LGBTQIA+ community, shifting from a state of exclusion to one of recognition and acceptance.

The ruling dismantled long-standing stigma, allowing individuals to express their identities openly and catalyzing a new era of inclusivity and social progress. Despite this significant legal victory, challenges remain. Societal pressures rooted in rigid social and cultural norms continue to influence various aspects of life, including education, employment, and marriage.

The lack of family support and acceptance can be particularly damaging, often resulting in isolation and emotional distress. This social alienation can lead to severe mental health issues, such as depression, anxiety, and suicidal thoughts, as well as psychosomatic illnesses. The ongoing struggle for full equality highlights the need for continued advocacy and support to address these challenges and ensure that the rights and well-being of LGBTQIA+ individuals are protected. As society continues to evolve, fostering an environment of acceptance and understanding remains crucial for overcoming these barriers and achieving true inclusivity for all.

Introduction
"A person’s sexual orientation is intrinsic to their being. A classification which discriminates between persons based on their innate nature would be violative of their fundamental rights." - Justice Indu Malhotra

Section 377 of the Indian Penal Code criminalized consensual same-sex[1] relations under the guise of "unnatural offenses." Its legal and social implications have been profound. In 2018, the Supreme Court decriminalized consensual same-sex acts, marking a landmark shift towards LGBTQ+ rights and acceptance. This legal change has spurred broader discussions on equality and human rights, challenging entrenched social norms and promoting a more inclusive society.

It has been a year since the Supreme Court scrapped part of Section 377 of the Indian Penal Code that criminalized homosexuality, decreeing that consensual sex between same-sex partners is not criminal. Though it is one step but there is a long road ahead in the direction of equal rights. Still, it was a big victory that changed the lives of many.

LGBT, an abbreviation for lesbian, gay, bisexual, and transgender, is known as a minor sexual orientation group. LGBT can also be used as an umbrella term for referring to a certain gender and sexual identity topics. At first, this minor group was called homosexual in the 1960s. However, it was replaced with the term 'gay' because homosexuality only belongs to certain group and is not accurate to represent all of the queer gender and sexual identity.

The History Of Legal Battles Of The LGBTQI And Protest Against Section 377:

Acceptance and celebration of all types of love, as well as a neutral view of the concept of homosexuality, were central to ancient Indian culture.

Section 377 was introduced under the British colonial regime as part of the Indian Penal Code. Its primary purpose was to criminalize "carnal intercourse against the order of nature," which included consensual same-sex relations. The law was a colonial import, reflecting Victorian moral values and criminalizing behaviors deemed unnatural.

In 1970s-1980s the first inklings of organized LGBTQ+ activism began in India. The early efforts focused on raising awareness about HIV/AIDS and challenging societal stigma. Activists and organizations like the Naz Foundation started advocating for legal reforms and decriminalization.

What is the Background of the LGBTQIA+ Community Being Recognized in India?
One concrete illustration of the presence of sexual fluidity among homosexuals is provided by the Khajuraho Temple, located in the Indian state of Madhya Pradesh.

In 1861, British people believed that sexual practices were "against the order of nature." As a result, the Indian Penal Code included a provision that made it illegal to engage in any gay behaviors.

In 1977, Shakuntala Devi released "The World of Homosexuals[2]" which is considered to be the first comprehensive study of homosexuality in India. The statement advocated "full and total acceptance" rather than only "tolerance and compassion." They were recognized under the law as a third sex and voting rights in 1994. The judgement that transgender individuals should be considered as a third category of gender was handed out by the Supreme Court of India in the year 2014.

What is Section 377, and why does it matter?
Section 377 of the IPC refers to 'unnatural offences' and says 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 10 years, and shall also be liable to pay a fine.

Section 377 of the Indian Penal Code criminalizes consensual private sexual acts between adults. It came into force in 1862. Lawyers have argued that the notorious Criminal Tribes Act, 1871, which branded a number of marginalized population groups like transgenders as "innately criminal" before it was repealed, drew inspiration from Section 377.

Though the 172nd report of the Law Commission of India recommended the deletion of Section 377, no action was taken. The penal provision says "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 10 years, and shall also be liable to fine."

In 2009, the Delhi High Court read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. In December 2013[3], a two-judge Bench of the Supreme Court, on appeals filed by private parties, set aside the High Court’s judgment. It upheld the criminalization of gay sex while virtually denying the LGBTQ community the right to sexuality, sexual orientation and choice of partner. In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra, re-opened the entire issue, saying a section of people could not live in fear of the law which atrophied their rights to choice, privacy and dignity.

Constitutional Rights And LGBTQ+ Equality:

Indian Constitution is a social-legal document founded on a social ideology. There are two parts to any social philosophy the fundamental and the contextual that will evolve along with shifting societal norms and expectations. It is of paramount importance to us that our constitution protects the rights to life, liberty, and property while maintaining the inherent worth of every person in our nation. In a similar vein, Articles 37, 38, and 39 of the Constitution place a duty on states to protect and advance the rights of minorities and disadvantaged groups so that everyone can enjoy basic human dignity. Article 37 says that the states are obligated to use the principles outlined in Part IV as the basis for their own legislation. As the Supreme Court ruled in A.K. Gopalan, DPSP are a reflection of the majority’s will in the legislature to execute the paramount and permanent laws of the country through deliberative wisdom. As a result, legal changes are necessary to ensure that the LGBTQ community is treated fairly along with the rest of society.

The Indian Supreme Court On Section 377

The issue of Section 377 was first raised in the Delhi High Court in 2001 by the NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan. Both petitions challenging the constitutionality of the section were dismissed. However, eight years later, the Delhi High Court decriminalized consensual sex between adults of the same gender, declaring the provision "illegal." This judgment was a significant victory for LGBTQ+ rights but was overturned by the Supreme Court in 2013, which also dismissed a review plea.

The LGBTQ+ community found renewed hope in 2014 when the Supreme Court directed the government to recognize transgender individuals as a 'third gender' and include them in the Other Backward Classes (OBC) quota[4]. On August 24, 2017, the Supreme Court upheld the Right to Privacy as a fundamental right under the Constitution and emphasized that protection of sexual orientation is central to fundamental rights, condemning discrimination and affirming that the rights of the LGBTQ+ population are constitutionally grounded.

In January 2018, a three-judge bench of the Supreme Court heard a petition filed by five individuals seeking to revisit the earlier judgment. The case was referred to a larger bench, and the Court sought input from the Center. On July 17, 2018, the Court reserved its verdict on whether to decriminalize Section 377 or not.

The Supreme Court bench that heard the case in 2018 included Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Rohinton Fali Nariman, and Justice Indu Malhotra. The bench unanimously read down Section 377 to the extent that it decriminalized consensual sex among adults of the same sex. Although the decision was unanimous, four concurring judgments were delivered, each presenting its own philosophy, logic, historical context, and constitutional theory.

The Supreme Court’s 2018 judgment applied to all citizens, not just the LGBTQ+ community, marking a historic shift. This ruling holds significant persuasive value for other nations that continue to criminalize homosexuality.

Society:
India's LGBTQIA+ community has historically faced significant social discrimination, hate crimes, and underrepresentation. Individuals identifying as LGBTQIA+ often encounter prejudice and bias in various aspects of their lives, including the workplace, housing, and healthcare, which can make it difficult for them to live openly and safely. This discrimination not only limits their job opportunities but also contributes to poverty and a lack of access to basic necessities. Despite these ongoing challenges, there have been some notable legal victories and a gradual increase in societal acceptance in recent years.

Attitudes towards same-sex couples have evolved over time. A 2023 Pew Research Center poll indicates that 53% of Indians now support the legalization of same-sex marriage, reflecting a shift in public opinion. Additionally, the visibility of openly gay celebrities and the portrayal of LGBTQIA+ issues in Bollywood films signify a growing acceptance and recognition within mainstream media.[5]

However, the LGBTQIA+ community still faces significant hurdles. They are subjected to various forms of oppression, including racism, sexism, and poverty, compounded by homophobia and transphobia. These intersecting forms of discrimination can severely affect their mental health and well-being. Access to essential resources remains a critical issue, as marginalized individuals often experience barriers to medical care, justice and legal services, and educational opportunities. The compounded nature of these challenges underscores the need for continued advocacy, support, and legal reforms to ensure that LGBTQIA+ individuals can fully participate in society and lead fulfilling lives free from discrimination and marginalization.

What challenges do the LGBTQIA+ communities in India have to deal with?
Individuals who identify as LGBTQIA+ may are subjected to numerous types of oppression, including racism, sexism, poverty, or other issues, in addition to homophobia or transphobia, all of which have the potential to have a severe influence on their mental health. People who identify as LGBTQIA+ are often denied access to essential resources because of the marginalization they face. These resources include medical care, justice and legal services, and educational opportunities.

• Social Stigma: Persistent societal prejudices and conservative attitudes often lead to marginalization and ostracization of LGBTQIA+ individuals, affecting their social interactions and acceptance within families and communities.
• Discrimination: LGBTQIA+ individuals frequently encounter discrimination in various areas such as employment, housing, and healthcare. This can result in unequal job opportunities, poor living conditions, and inadequate medical care.
• Legal Barriers: Although Section 377 was decriminalized in 2018, there are still gaps in legal protections. Issues like same-sex marriage, adoption rights, and anti-discrimination laws remain unresolved, impacting their rights and recognition.
• Violence and Harassment: LGBTQIA+ individuals are at a higher risk of experiencing violence and harassment, including physical assaults and verbal abuse, which can occur both in public and private spaces.
• Mental Health: The compounded effects of discrimination, social rejection, and internalized stigma contribute to higher rates of mental health issues, including depression and anxiety, within the LGBTQIA+ community.
• Limited Resources: Access to essential services, such as healthcare and legal support, is often restricted. LGBTQIA+ individuals may face barriers in obtaining necessary medical care and legal assistance due to discrimination or lack of inclusive services.
• Economic Disadvantages: Discrimination in employment and housing often leads to economic instability, contributing to poverty and a lack of access to basic necessities.

Case Laws:

1. National Legal Service Authority v. Union of India:
In 2014, the Supreme Court issued a sweeping judgment that transgender individuals should be legally recognized according to their gender identity, enjoy all fundamental rights and receive special benefits in education and employment. But while legal changes are an important step, LGBT people in India need a lot more to be able to live without discrimination and with dignity. Young people being bullied in school are less likely to succeed and are more likely to become vulnerable as adults to discrimination and violence.
 
2. Suresh Kumar Koushal v. Naz Foundation:
This Supreme Court ruling overturned the Delhi High Court's 2009 decision to decriminalize homosexuality, reinstating the provisions of Section 377. It was later reversed by the 2018 Navtej Singh Johar judgment.
 
3. Justice K.S. Puttaswamy v. Union of India:
In this landmark case was finally pronounced by a 9-judge bench of the Supreme Court on 24th August 2017 upholding the fundamental right to privacy emanating from Article 21. The court stated that Right to Privacy is an inherent and integral part of Part III of the Constitution that guarantees fundamental rights. The conflict in this area mainly arises between an individual’s right to privacy and the legitimate aim of the government to implement its policies and a balance needs to be maintained while doing the same. The judgement also paved the way for landmark judgements like the decriminalisation of homosexuality in Navtej Singh Johar v. Union of India (2018) and ending the provisions of the crime of adultery in the Joseph Shine v. Union of India case (2018).
 
4. Navtej Johar v. Union of India (2018):
The court ruled that Section 377 is unconstitutional because it criminalises all sexual acts, including those that involve consenting adults. The Supreme Court reached a majority decision, striking down provisions of state law that criminalised sexual cohabitation between consenting adults.
 
5. Madhu Bala v. State of Uttarakhand and Others:
First and foremost, the court clarified that it was not illegal for two people of the same sex to be in a romantic relationship and to live together in pursuance of the same. It also stated that the ability of two persons to be in a live-in relationship is not connected to their ability to marry. Even if members of the same sex are not allowed to marry at present, they can continue to live together as a couple outside the wedlock.

Conventions And Legislations:
In India there has been number of conventions and statutes were made by legislature to safeguard the fundamental rights of the LGBTQ people and also reservation been given through OBC quota for upbringing of this community and them to be a part of society and also to provide them equal educational and working opportunities.

• Indian Constitution:
  Article 51[13] of the Indian Constitution seeks to elaborate on the document’s underlying ideas (DPSP). However, we have not yet fully implemented these principles in light of the fact that LGBTQ people are human beings first and foremost. What we need to know now is why it has been so difficult to put those ideals into practice in terms of LGBTIs. If our foreign obligations require that we adopt such principles, would we need to amend our laws and constitution?
   
• The Right of Transgender Persons Bill 2014:
  This bill[14], introduced by DMK member Tiruchi Shiva, would guarantee transsexual people the same protections and quotas as any other group. Under Articles 14, 15, and 16 the Supreme Court has declared that transgender people are guaranteed protection from discrimination based on their gender identity. Therefore, the scope of the term 'sex’ under Articles 15 and 16 has been expanded to include 'psychological sex’ or 'gender identity,’ it was only allowed for biological males and females before. The Supreme Court has also made it crystal clear that sexual orientation discrimination is illegal.
   
• Right of Transgender Persons (Protection of Rights) Bill 2019:
  In response to the Yogyakarta Principles’ suggestions and resolutions, the Indian government has drafted the Right of Transgender Persons Bill 2019. On July 19, 2019, Mr. Thaawarchand Gehlot, India’s Minister for Social Justice and Empowerment, presented it in Lok Sabha. The term includes in its ambit "trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. Similarly, intersex variations are defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.

Conclusion
An examination of Section 377 of the Indian Penal Code through the lens of Article 19(1)(a) reveals that the provision constitutes an unreasonable restriction on the fundamental rights to freedom of expression and choice for the LGBTQIA+ community. The justification of public decency and morality, used to uphold Section 377, extends beyond rational or logical limits and fails to align with the principles enshrined in the Constitution. The notion that consensual carnal intercourse among adults-whether homosexual or heterosexual-within the privacy of one’s own space could undermine public morality is fundamentally flawed.

Such activities do not encroach upon public decency or societal values; rather, they pertain to the personal realm of individual freedom and dignity. As such, Section 377, in its current form, infringes upon Article 19(1)(a) by unduly limiting the freedom of expression and choice.

Moving forward, it is essential to embrace a more inclusive and respectful approach toward LGBTQIA+ individuals. By rejecting outdated prejudices and fostering an environment of acceptance, society can set a positive example that upholds the values of equality and human dignity. Encouraging such inclusivity not only aligns with constitutional principles but also enhances the social fabric by recognizing and valuing the diversity of all individuals.

End Notes:

• Indian Penal Code, 1860
• Shakuntala Devi, The World of Homosexuals, Delhi, Vikas, 1977.
• https://www.thehindu.com/news/national/what-is-section-377-and-why-does-it-matter/article6151175
• https://www.scobserver.in/
• https://www.pewresearch.org/
• https://www.ncbi.nlm.nih.gov/pmc/article/PMC414427/
• Writ Petition (civil) No. 604 of 2013
• (2014) 1 SCC 1
• AIR 2017 SC 4161.
• 2018 ALLMR(CRI) 4065
• AIR 2018 SC 4321
• Habeas Corpus Petition No. 8 of 2020
• The Indian Constitution, 1950
• https://www.hrw.org/news/2019/23/india-transgender-bill-raises-rights-concern

Written By: Patil Vaishnavi Dnyaneshwar, LLM-2 (Sem-I) - Progressive Education Societies, Modern Law Collge, Pune.
Under The Guidence Of Ass.Prof.Neelam Dighe