Indian Journal of Socio Legal Studies .
(Vol.- XI.
ISSN 2320–8562.
Issue- I.
Impact Factor(IIJF):2.139
2022 )
A Study on Homosexuality in the Light of Law And Morality
Sanskriti Shahi 
INTRODUCTION
Ancient India did not differentiate between law and morals. Even the Hindu Jurists never differentiated between law and
morals, however with the passing of time, few distinctions came into existence. The individuals called attention to the
differentiation and also dropped those standards which solely depended on ethics. The 'factum valet' doctrine was
acknowledged. It meant that an act which in contradiction with some ethical acts must be viewed in a substantial manner.
Privy Council differentiated between law and moral views in its decisions. The Supreme Court of India now follows the
same path.
When we say sexuality, it is something nature has put in us because there’s something called as perpetuation of the race or
species otherwise it won’t happen. There is no denying or putting it under the carpet about this debatable topic. Some people
have some kind of sexual preference, which has nothing to do either with morality or religion as such. It is their personal
preference and we as humans need to protect and accept their preference rationally. This is because every individual has the
right to do whatever they want to do with their body because it’s completely theirs. Unless they are doing anything harmful
to themselves or to some other people around them we must not prevent them from doing so. Right now the Supreme
Court’s decision is all about what individuals do in private on their own free will should not be interfered by anybody. What
a person does in their private space is nobody else’s business. Government need not interfere in anybody’s private affair,
that is the law.
Now, if we talk about religious instance, there is nothing religious about this as we do not have to discriminate against them
or prosecute them in any manner. Also it’s not necessary to put them behind the bars. But, at the same time it does not need
promotion either. Here, by promotion we mean if you want to do it, simply do it. If you don’t want it, don’t do it. It’s
completely your wish. There’s no need to fight, cry, debate or get offended about it. Simply accept and let it go. Let things
happen the way they want to. It’s ok to be wanting who you are and fighting for it. Many countries that got examined in the
year 2002 and then again in the year 2009 witnessed just the double rise in the increase in the acceptance of what we term it
as homosexuality. If we talk about bringing a reform in our society then we must realize that a large section of the people’s
opinion are influenced by religion alone. As, for instance, in countries where people are more religious give less acceptance
to homosexuality as compared to countries having more unreligious people or people not practising religion. This section
which opposes the community covers the majority people
The tussles of LGBT people are so dramatically diversified all over the globe. While people living in the west have struggled
to death in achieving equality for their people, there are still many countries where gay marriage is still not recognised, and
in some countries homosexual relationships are still punishable by death.
Historical Background
Homosexuality has always been debatable. Even the Hindu writings work with respect to the homosexuals and subjects.
Verifiable artistic proof shows how homosexuality has been pervasive over the Indian subcontinent since forever, and that
gay people were not really viewed as substandard at all until about eighteenth century during British colonial rule. It was the
British colonial rule which left the anti LGBTQ legacy in India. It is also regarded that the Britishers carried the legacy of
inculcating and promoting the laws against homosexuality in more than 40 countries which are practised even today. The
concept of third gender has always been a part of customary culture in the Asian countries. On 6 September 2018, Supreme
Court nullified Section 377 of the IPC, subsequently making homosexuality lawful in India.

Research Scholar (Rama University,Kanpur)
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Although there have been change in mentalities towards homosexuality There are Ancient Indian compositions which are
appropriate to current LGBT causes. Religion has expected an occupation in moulding Indian conventions and customs.
Hinduism does accept LGBTQ. In fact, in Vedic times, every sexual in India lived without discrimination. Every possible
form of life is accepted in Hinduism. We don’t believe in materialistic things but souls, what’s inside you and since your
eternal soul is genderless, it means individuals can be with anyone they want irrespective of their gender, as long as they are
happy and consenting to it.
Even in the Kama sutra, which is an ancient Hindu text, there lies a complete chapter on homosexuality. There also have
been various instances which have shown that homosexuals were in no way considered inferior than the rest. According to
the records, there are about 2.5 million people belonging to LGBTQ community
Homosexuality
Homosexuality, as a sexual direction, is characterized as "a enduring example of or attitude to encounter sexual affection, or
sentimental attractions fundamentally to" individuals of a similar sex, it likewise refers to a person's feeling of individual and
social personality dependent, conduct communicating them, and wish to be in a community of other people who share them."
Homosexuality was a rare phenomenon during the medieval period unlike the Mughal period where there were many
instances which could now be used as a defence when the Mughal rulers were seen establishing relationship with the other
men although this act was completely prohibited under the Muslim law under the Sharia 1
As indicated by section 377 of the Indian Penal Code drafted in 1860, whoever wilfully has carnal intercourse against the
order of the nature, with any man, woman or animal will be punishable with imprisonment for life or with imprisonment of
either for a term which may extend to ten years and will likewise be subject to fine. Proposals that Section 377 would be
explored concurred with many individuals from the LGBT (lesbian, gay, swinger, transgendered) community moving and
walking through the roads of five Indian urban communities to stamp the 40th anniversary of the Stonewall uprisings in New
York, presently a widespread image of gay protection from traditionalist mistreatment. Tracing down public opinion
favouring abolishment of section 377 IPC as well as public pressure put on the government for the cause, in February 2006,
the Supreme Court ordered the High Court to reconsider the constitutional validity of Section 377. The 172nd report of the
Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan
demanded decriminalisation of homosexuality. Over the most recent twenty years, LGBT activism assumed significant role
in making awareness on the issue. In 2006 author Vikram Seth delivered an open letter requesting that the brutal law must be
struck down. The letter was upheld by countless signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee,
Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, and Mrinalini Sarabhai and requested the abolishment of the
merciless law which condemns sentimental love and privacy, consensual sexual acts between grown-ups of a similar sex
while being utilized to efficiently mistreat, extortion, capture and threaten sexual minorities. 2
.Judicial Trends Regarding Rights of Homosexuals
On 24 August 2017, Indian Supreme Court gave the country's LGBT community the freedom to safely express their sexual
orientation. Hence, a person's sexual direction is ensured under the Nation's Right to Privacy law. 3 Notwithstanding, the
Supreme Court did not legitimately overturn any laws condemning same-sex connections. After the landmark judgement on
right to privacy in the year 2017, the verdict on Section 377 of IPC was greatly influenced as it played a major role in
decriminalising gay sex between consenting adults.
1
Eraly, Abraham (Apr 1, 2015). The Age of Wrath: A History of the Delhi Sultanate. Penguin UK. ISBN 9789351186588.
Retrieved Aug 15, 2019 – via Google Books.
2
http://Relation between Law and Morality or Ethics.html
3
Dhrubo Jyoti (24 August 2017). "SC verdict says sexual orientation part of privacy, LGBT community
celebrates". Hindustan Times.
106
On 6 September 2018, consensual gay sex was authorized by Indian Supreme Court. Section 377 of the Indian Penal Code
(IPC), going back to 1861, makes sexual exercises "against the order of nature" punished by law and even have life sentence.
The law replaced the different type of punishment for Zina (unlawful intercourse) commanded in the Mughal domain's
Fatawa-e-Alamgiri, these went from 50 lashes for a slave, 100 for a free heathen, to death by stoning for a Muslim.
Additionally the Goa Inquisition once indicted the capital crime of homosexuality in Portuguese India, yet not lesbian acts. 4
THE CURRENT SITUATION
Shakuntala Devi, also known as Maths Genius of India was married to a gay man which changed her life completely.
Married in 1960, she published something on homosexuality which was her the first 5 study ever on such a topic. The
publishing took place in the year 1977 which was very early with regards to the current scenario in regards to homosexuality
in India.6. Until 2009 there were literally no convictions at all under this section. Making it as an offence was justified by the
Human Rights Watch who said that they utilised this law in order to harass HIV/AIDS prevention activists, as sex workers,
or those. Such an act was considered as an offence for which convicts were tried criminally even before the introduction of
Section 377 of the Indian Penal Code in 1860 until the Delhi High Court's 2009 decision in Naz Foundation v. Govt. of NCT
of Delhi. After the Delhi court's decision was overturned in 2013, gay intercourse was re-condemned until the Supreme
Court of India's 2018 decision in Navtej Singh Johar v. Union of India7.
2009-2013
This law was struck around the 2009 Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi, which discovered
Section 377 and other legitimate prohibitions against same-sex lead to be in direct infringement of key rights gave by the
Indian Constitution. Decisions of a High Court on the constitutionality of law apply all through India and not simply to the
region of the state over which the High Court in question has jurisdiction. However it may even after the declaration of
decision, there have been rare occurrences of provocation of gay groups.8
On 16 February 2012, the Supreme Court, during a hearing about a bunch of appeals filed against decriminalization of gay
sex, seen that homosexuality ought to be found with regards to changing society the same number of things which were prior
inadmissible have gotten worthy with the passage of time.
2013-present
There were protests going on all across India which brought various political groups together in order to claim and raise their
voice against decriminalising section 377 of IPC. There were three political parties consisting - the Aam Aadmi Party, the
Congress and the Communist Party of India which came out and used this debatable area in order to boost their election
manifestos .
On 6 September 2018 the Supreme Court of India decriminalised
Section 377 of the Indian Penal Code making
9
homosexuality lawful in India. In striking down the colonial period law that made gay sex punishable for 10 years in jail,
one judge said the milestone decision would "pave the way for a better future."
4
Soyer, Francois (2012). Ambiguous Gender in Early Modern Spain and Portugal: Inquisitors, Doctors and the
Transgression of Gender Norms. p. 45. ISBN 9789004225299. Retrieved 18 September 2017.
5
Subir K Kole (2007-07-11). "Globalizing queer? AIDS, homophobia and the politics of sexual identity in
India". Globalization and Health. 3: 8. doi:10.1186/1744-8603-3-8. PMC 2018684. PMID 17623106.: "The first academic
book on Indian homosexuals appeared in 1977 (The World of Homosexuals) written by Shakuntala Devi, the mathematics
wizkid who was internationally known as the human computer. This book treated homosexuality in a positive light and
reviewed socio-cultural and legal situation of homosexuality in India and contrasted that with the then gay liberation
movement in USA."
6
Jeffrey S. Siker (2006). Homosexuality and Religion. In hers book, mathematician Shakuntala Devi interviewed..."
7
W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
8
Pervez Iqbal Siddiqui (28 December 2010). "Crackdown on gay party in Saharanpur, 13 held". The Times of India.
9
Rautray, Samanwaya (6 September 2018). "Section 377: SC rewrites history, homosexual behaviour no longer a
crime". The Economic Times.
107
ON THE DECRIMINALISATION OF HOMOSEXUALITY IN INDIA
The Supreme Court’s decision on decriminalising homosexuality in the leading case of Navtej Singh Johar v Union of
India10 on September 6, 2018 not only decriminalized same sex acts between consenting adults but also permitted the LGBT
community acts who welcomed the decision with pride and happiness. Earlier, no distinction was seen among such acts and
homosexuality was criminalised completely. There was never considered any separation or differentiation among consensual
and non-consensual adults, and therefore, homosexuality was criminalized completely.
Talking about another landmark judgement which took four years and a SC ruling to finally make right to privacy come
within the ambit of Article 21. The case was none other than KS Puttaswamy and others v. Union of India, where the
judgement was made unanimously by a nine judge’s bench where it was considered that "privacy is a intrinsic part of life
and personal liberty" and deserves "to get protection as a core of constitutional principle".". This judgement not just being
landmark in itself also made to question the legality of Koushal decision of 201311.
By the now gave Navtej Johar ruling, the Supreme Court eventually pronounced Section 377 of the Indian Penal Code to be
unlawful "to the extent that it condemns consensual sexual acts between adults of a similar sex". The decision recognized
that individuals from the LGBT people group are qualified for rights under Article 14 (equity and equal protection of laws),
Article 15(1) (non-discrimination), Article 19 (1) (a) (freedom of expression) and Article 21 (life and personal liberty) of the
Indian constitution. Further, the bench conveyed four separate however concurring decisions moving toward the issue from
alternate points of view. However every one of them convey the overreaching normal topics of legal morality, extraordinary
constitutionalism, and the conviction that majoritarian ideas can nott be a ground to deny minorities their fundamental rights.
Emphasizing its previous case-law, the Court held that the transformative idea of the Constitution originates from a dynamic
and purposive interpretative methodology which permits the constitution to adjust to ever-changing conditions.
Constitutional courts have a unique task to carry out in this process by "striving to revive the Constitution and not render the
document a collection of mere dead words". Thus, the Court quashed the formerly caused contention in Koushal that
legislative parliamentary acts to appreciate the assumption of legality.
The idea of constitutional morality has been utilized unmistakably in the Naz Foundation instance of 2009, which prompted
the decriminalization of homosexuality until the inglorious Koushal judgment recriminalized homosexuality in 2013.
Differentiating famous and constitutional morality, the Delhi High Court in 2009 found in Naz Foundation.
“Famous morality or public dissatisfaction with regards to specific acts is definitely not a substantial justification for
limitation of the fundamental rights under Article 21. Popular morality as different from constitutional morality, depends on
moving and subjecting ideas of good and bad. If there is any sort of "morality" that can pass test through the compelling state
interest, it must be "legal morality and not public morality. In our plan of things, legal morality must exceed the contention
of public morality, regardless of whether it be the majoritarian view."
Constitutional morality which although does not find its place in the constitution makes a landmark case of Navtej Singh
Johar depend on it to a great extent.
Aside from being an exercise in constitutionality and morality, the impacts of Puttaswamy and the recently vindicated right
to privacy emanate through the judgment. In like manner, the Court holds that "while testing the constitutional validity of
Section 377 IPC, due respect must be given to the raised right to privacy as has been recently declared in Puttaswamy," and
that "the test to the sorted vires of Section 377 IPC has been more grounded than ever."
The contentions which were exclusively followed in the Kaushal’s case were extremely criticized in the right to privacy case
which indicated towards decriminalising section 377 of IPC.
10
W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
108
Decriminalising same sex acts i.e. section 377 of IPC and at the same time making right to privacy an integral part by a
landmark judgement raises an issue on how the legitimate acknowledgment of same-sex couples could be encouraged?
A captivating answer can be found in the article "The Right to Relate: A Lecture on the Importance of "Orientation" in
Comparative Sexual Orientation Law" by Prof. Kees Waaldijk from Leiden University. Holding the college's seat in
Comparative Sexual Orientation Law, Waaldijk tries to discover an "idea with which to comprehend sexual direction law
and its development" and proposes "the option to relate".
Returning to the ongoing decriminalization of homosexuality in India, we witness that the connection between the right to
privacy and the option to establish and to create connections did as of now discover its way into of the Naz Foundation
instance of 2009 in which the Delhi High Court struck down Section 377. The circle of protection permits people to create
human relations without interference from external community or from State. The activity of self-rule empowers a person to
achieve satisfaction, develop confidence, make connections of their choice and satisfy all legitimate objectives that the
individual may set. Notwithstanding, further advancing the lawful acknowledgment of same-sex connections through "the
option to relate ", remains a chance yet to be seized by the Indian Supreme Court.
Only with a good mind-set and a sensible act can this discrimination be ended. There are various unions which are setting
out different programmes in order to curb the issues concerning the LGBTQ Community. After the verdict the issues have
become less rigid socially. Although a large section of the society is still not ready to accept this community.. This is the
reason why they still have to fight for their rights each single day.
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