"It is absolutely imperative that every human being’s freedom and human rights are respected, all over the world."– Jóhanna Sigurðardóttir

The above mentioned quote was spoken by Jóhanna Sigurðardóttir, former Prime Minister of Iceland during a pride festival in the year 2014, who herself is openly a gay. This move was considered as one of the few attempts around the world from the Head of State of a nation to address the tabooed subject of LGBTQ+ rights.

The readers must’ve found themselves asking the question about the title of the article and the quote attached above. The sole motive to attach the quote was to express and imply the call for protection, constitutionality and embracement of LGBTQ+ rights around the world. There are a lot of movements, battles and victories around the world when we talk of the LGBTQ+ rights, however I’ll confine myself to India and her treatment to the LGBTQ+ community.

In India, the entire subject of the LGBTQ+ community and rights was highly disgusted, despised and frowned upon till the year 2018. Though the change is on the way, one cannot say that the Indians are completely ready to embrace the LGBTQ+ culture. The judiciary, society and the ideologies of people went to such extents which termed the members from the LGBTQ+ community as unnatural, minority and against the traditions and cultures.

However, all of the name- calling by the people was shut down when the Supreme Court on 6^th September 2018 partially decriminalized section 377 of the Indian Penal Code, 1860, making homosexual relationships legal. However, the readers mustn’t conceive the idea that it was an easy victory for the LGBTQ+ community in India. There has been an array of cases refereed and fought, many lives sacrificed, many lives tortured and many scars appeared in the movement and finally it saw the light of the day. In order to provide a legal perspective for those who crave for the legal side of the story, as the title suggests.

Section 377 of the Indian Penal Code, 1860 says:
Unnatural offences:
whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine."

Furthermore, an explanation is also provided under the same section which says:

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The credit for the law is to be given to Lord Macaulay, who was the father of the IPC. This draconian law, which reeks of not just colonialism but also despotic rule was taken up by the government of India even after the Independence as this wasn’t a matter of concern at that particular time. It was in the year 2001 when Netherlands passed an Act, legalizing same- sex marriage. However, the winds of change soon traveled through India much before (1992) when the first protest for gay rights was staged in front of the police headquarters in the ITO area of Delhi. This protest laid the foundation stone for the LGBTQ+ movement around the nation.

Following this, a PIL was filed in the Delhi High Court by AIDS Bhedbhav Virodhi Andolan (ABVA) challenging the constitutionality of Section 377 of the IPC, 1860. This PIL set a stage for the LGBTQ+ movement in India with the primary aim of legalizing homosexual relationships across the nation. After this there were array of movements, police raids across the country and legal battles in the courts. It would take me more than the word limit prescribed to express the outcomes and arguments made in the court of law regarding the subject. However, I’ll cover the major 05 judgments in brief. They are:

1. Naz Foundation v. Gov. of NCT Delhi: A park in Lucknow was raided and men were arrested on the suspicion of them being homosexuals. The people arrested were even denied bail and they were accused of running a sex racket. Taking cognizance of this, Naz foundation, and NGO filed a petition in the Delhi HC, challenging the validity of Section 377 of IPC, 1860.
    
2. Suresh Kumar Koushal v. Naz Foundation: One of the most vituperative judgments ever. Said that the members of LGBTQ+ are miniscule minority and they don’t deserve protection. This judgement also criminalized homosexuality, again.
    
3. National Legal Services Authority v. Union of India: One of the landmark judgments of the country. This judgement recognized the ‘third gender’ as ‘transgender’. Hence, giving them the recognition and a certain status in the society.
    
4. K.S. Puttuswamy v. Union of India: This judgement is known as the judgement which made the ‘right to privacy’ as a Fundamental Right from a legal right. Here, Justice DY Chandrachud played a key role in highlighting the fact that the sexual orientation of a person comes under the garb of Article 21 of the Indian Constitution.
    
5. Navtej Singh Johar v. Union of India: The judgement which paved way for the decriminalization of Section 377 (partially) and legalized homosexuality and homosexual relationships.

The above mentioned cases are not just any other legal hearing or case. It is an instrument to bring in the changes in the society, to normalize homosexual relationships and to change the mindset of the people. Still, there is a long way to go. The legislature has to still address the issue of same- sex marriages and the other benefits that come with it. However, this task is not going to be a cake walk. Introducing such bill continues to be a dream for many. This is a mammoth task because India is a country where both the personal laws (for marriages) and secular laws (Special Marriage Act) prevail. And when we talk about the personal laws, there are certain religions which choose to either be silent on it or straightaway call it a sin. The murmurs of Uniform Civil Code might provide some relief to the same- sex marriages if dealt with it in a sensible fashion. However, looking at the current government at the Centre, it still looks impossible. I say that because the Centre has always opposed the idea of same- sex marriages. The Attorney General of India, Mr. K.K Venugopal has vehemently opposed the PILs filed in the Delhi High Court. However, the silver lining here continues to be the fact that we live in a democracy, which is a dynamic form of government.

In conclusion, it won’t be wrong to admit that the battle for equal rights is far from being over. It is because a change could be brought in the law/society/mindset/ideology only when there is a structure in place to replace the old structure/mechanism/order. One cannot cry for change without conceiving the new structure to be installed for the betterment of the society as a whole. Drawing from all the information and views mentioned above, as the title suggests, there has to either be an amalgamation or an equilibrium of the triptych in order to sustain and bring LGBTQ+ rights in India: Ideology, law and society. With this, I leave my readers with an Old English saying which urges them to strive for change by keeping patience and a pattern of continued, just and reasonable fight. The saying goes like, "Rome wasn’t built in a day!"

References:

1. https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/#Naz_Foundation_Govt_v_NCT_of_Delhi
2. https://www.washingtonpost.com/news/worldviews/wp/2015/06/26/what-was-the-first-country-to-legalize-gay-marriage/
3. https://www.thehindu.com/society/its-been-a-long-long-time-for-the-lgbtq-rights-movement-in-india/article24408262.ece
4. https://indiankanoon.org/doc/1836974/