This article was written by Mudit Nagpal, a student of Rajiv Gandhi National University of Law.
The first thing that comes to my mind when this topic is discussed is the tussle between constitutional moralities and public moralities. Public moralities deals with perception of people in society whereas constitutional moralities deals with the obligations and duties which need to be given due consideration keeping in mind the provisions of the Constitution of India. It is indeed pertinent to clarify here only that it criminalises consenting intercourse between couples of same sex, sexual intercourse with minors, sexual intercourse with animals and non vaginal penile intercourse. This all debate begins when Law commission of India submitted its 174th report in the year 2000. The report talked about de-criminalising this section involving consensual intercourse between adults. However, sexual intercourse with minors and other forms of unnatural sex like intercourse with animals needed to be remained criminalized. The report submitted by Law Commission pressed on the contention that same sex couples face discrimination on the fact of being homosexuals. Moreover, there have been various reported incidents in which police and local authorities have inflicted torture upon these people. This fuelled a debate across the whole country. The journey towards this step was taken by NAZ foundation which collaborated with the team of lawyers collective and filled a writ petition in Delhi High court in the year. At the first instance, Delhi High court denied listening on this matter stating that it does not have locus standing to hear this petition. But they were determined to their cause and then NAZ foundation approached the Supreme Court challenging the decision of Delhi High court. They pleaded before the Hon’ble court that this matter need be heard. Supreme Court decided that this matter must be heard and Delhi High Court has Locus standi to hear on this matter. Supreme Court sent back the case to be heard by Delhi high court.
NAZ FOUNDATION V. GOVT. OF NCT OF DELHI (DELHI HIGH COURT JUGEMENT)
In the year 2009, a landmark judgement was passed by Delhi High court in case famously known as NAZ foundation v Govt. of NCT of Delhi . It was landmark in the preview that it decriminalized sexual intercourse between adults of same sex. This was done on the grounds that it violates Article 14 which states Right to equality in eyes of law and opportunity, Article 15 which states Right to equality in Livelihood and employment opportunities and Article 21 which states Right to life and liberty. This judgement was given by a division bench of two judges. It is indeed very pertinent to mention and note here that it was only an amendment to the act and there was no complete or partial repealing. It only decriminalized intercourse between consenting adults of same sex. It didn’t decriminalized intercourse with animals, intercourse with minors, non consensual penile intercourse. This judgement was welcomed by a series of human right activist all over India. But there was a hue and cry by various religious leaders on this matter. From Baba Ramdev to Muslim Board leader to Catholic Church all echoed the same concern.
THE 2013 SUPREME COURT JUDGEMENT
After this landmark judgement, several petitions were filled in Supreme Court to quash it. Followed by this was the judgement given by Supreme Court in the year 2013. It literally traded all the efforts by various Human rights association, NAZ foundation, Lawyers collective and other association. The Supreme Court of India ruled that judiciary should not interfere in this matter. The Supreme Court stated that judicial intervention is not required and this matter must be looked by Parliament of India and legislation must be introduced. It again recriminalized consensual intercourse between consenting adults. Supreme Court shifted the ball to parliament’s court. In its decision Supreme Court ruled that parliament represents people of our whole country so according to Supreme Court, parliament must take a concrete stance on it. Religious leaders supported this decision of Supreme Court. Its bit ironic on the part of Supreme Court as earlier it was the one to transfer the hearings to Delhi High Court. Now Supreme Court took a totally different stance pertaining to this matter.
STAND OF DIFFERENT POLITICAL PARTIES
Political parties were divided on this matter and aired different views. While the Congress leaders Rahul Gandhi, Indira Gandhi supported decriminalizing of intercourse of homosexuals and on the other hand Bhartiya Janta Party had dissenting opinion on this matter. Congress leader Shashi Tharoor introduces private member bill in Loksabha in winter session of parliament in the year 2015. But unfortunately it got struck down by a vote of 71:23 in first reading. Despite of this failure, Tharoor again brought the bill in parliament in the year 2016 and again it got struck in its first reading.
FILLING OF EIGHT CURATIVE PETITIONS
After this various curative petitions were filled in Supreme Court. Now you’ll be thinking what this term Curative petition is. Basically it’s the primary power of the Supreme Court to listen on the matter of its own decision. According to this provision an aggrieved party can again approach the Supreme Court to avail justice. For an example, if on a particular matter Supreme Court has given its verdict then a petition can be filed for reviewing this decision. Honourable justice T.S Thakur heading three member benches heard this matter. T.S Thakur added that all the eight curative petitions must be heard by a five member constitutional bench.
Now let’s see what will happen. In my opinion there has been lack of interest by the legislature on such matters. Hence Supreme Court must come strong and clear on this issue. Moreover I’m of the opinion that seeing the trend in other countries like USA and UK, India must also decriminalize this and amend the age long section of Indian Penal code. In the modern era issues such as LGBT rights must be addressed. Moreover everyone should respect one’s freedom and liberty. Private intercourse between consenting homosexual adults does not cause any harm to the society. Further substantiating my claim I’ve read few cases in which homosexuals have been maltreated by police authorities. This legislation has been misused by many. The main problem which persists is that religious leaders and some political parties interpret it in wrong way. Non consensual intercourse and intercourse with animals, minors still remains criminalized. Here one more point lies that under which our country adopted this legislation has itself amended it.