This article was written by Santosh Sharma, a student of Banasthali Vidyapith, Rajasthan.
“I am what I am, so take me as I am,” CJI Deepak Mishra
India is multicultural and pluralistic society where all kinds of faith, beliefs, orientations, way of living and philosophies are present. Indian society was much diversified in ancient time also as it accepted all kinds of art, literature, sculptors and cultures. One side, we have purely religious paintings in Jagannath Puri temple and on the other side, we have monuments such as khajuraho which depicts homosexual activities. These shows that even in ancient time, people are broad minded and more tolerant about the homosexual activities because same sex love is freely displayed in paintings and sculptors. But in Modern times views regarding homosexuality is changes, they considered it shameful and as a social taboo.
It is a tendency by nature that people of one gender emotionally and physically attracted toward opposite sex i.e. attraction of females is towards male and vice versa but due to certain sexual orientations some time the physical and emotional attraction is not for opposite sex but it is towards same sex, this is known as homosexuality. Homosexuality is connected with LGBTQ Community which stands for Lesbians, Gay, bisexual, Transgender, queer. In modern times, homosexuality in India is considered as social stigma.
Before the Supreme Court landmark judgment on homosexuality on 6th sep. 2018, it was punishable under Section 377 of I.P.C., 1860 which states that if any one voluntarily indulged in carnal intercourse with woman, man or animal against the order of nature, it shall be punishable with imprisonment for life or punishable with imprisonment extend up to ten years and with fine.
In this section it is not specially mention that what is against the order of nature it means it is governed by social morality which undermines the constitutional morality. But in India “constitution is considered as supreme law of land” therefore, the constitutional morality is above the social morality because we cannot fixed the social morality what is seem unjust to one person can be seem as just to other person.
The recent judgment of supreme court have far reaching impact .At one side it has positive impacts on LGBTQ community rights because now they can enjoy same rights as enjoyable by the other citizens .They can express their feelings of love towards others because It bring constitutional rights into motion as “constitution is a living document”. This judgement fosters the constitutional rights and provides a conducive environment for their human rights. it will put on end the discrimination based on gender identity as well sexual orientation faced by thousand peoples in India. It also have impact on gender justice, gender equality .After this judgement one gay, lesbian or transgender will freely disclose his/her gender identity “The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death,” their sexual attraction or orientation is natural they have no control on it. Now the LGBTQ community feels “azaad in this azaad hind”. They can avail the medical services without any shame. They can enjoy their rights and express their feelings of love without any fear of punishment.
But if we see the other side of this judgment the judiciary played its active in promoting their rights and give them recognition now it’s completely depend upon legislators to formulate provisions for them. Since recognition to homosexuality is granted but the same sex marriages are not allowed and if the homosexuals want to have their own children then there is no provision of surrogacy and adoption for homosexuals. The gay can indulged into sexual activities but cannot procreate child so it will put stagnation on human growth. They will not have their own children. So implementation of this judgment also requires change in those provisions also. From the medical point of view also the homosexuals are more near (prone) to sexual transmitted diseases than other person. The main important thing to bring this judgment into motion to change to mindset of society because until society will not accept the homosexuals, nothing will be change in their condition. They will face the criticism and ugly comments from society. For this purpose media and awareness program play a vital role .Most of the people in our country influence from media. They perceive in the same way which is shown in television, news and other medium.
There have been many positive changes regarding the LGBTQ community .In May 2015, Ireland became the first country which allowed same-sex marriage and considered it legal. In 1993, Ireland decriminalized homosexuality.
The Supreme Court of USA also allowed same sex marriages in June ,2015. In 2007 Nepal has been allowed homosexuality and the Constitution of the Nepal also gives various rights to the LGBT community people.
UK, Canada, France, Australia, Brazil, United States, and have also decriminalized homosexuality. Other nations such as Belgium, Norway, Luxemburg, South Africa, Sweden, Portugal, Spain and Uruguay allow the marriage between same sex.
The 2017 report which lists 72 countries where same-sex relationships are still criminalized, although that includes India before its latest ruling. But now India become the 126th country in the world who decriminalized homosexuality.
The recognition of LGBTQ community rights considered as great victory in India .The judgment of supreme court consider as positive change in homosexuals conditions but it will not positively implemented until the people of society will not accept this .Some people of Indian Society criticized the apex court recent judgement by stating that it is against morality especially the Muslim community people. Therefore, first of all for implementation of this judgement the social acceptance by Indian society is essential .Last but not least it can be concluded by quote of Nathaniel Branden
“The first step towards change is awareness and second step is acceptance”.
 Indian Penal Code, 1860.
 Navtej Singh Johar Vs. Union Of India [decided on 6th sep., 2017]
 https://iasscore.in/national-issues/-should-homosexuality-section-377-of-ipc-be-decriminalized- accessed on 21 sep. 2018.
 https://www.bbc.com/news/world-asia-india-45429664 accessed on 21 Sep 2018.