(Article written by Jagriti Thakur
Lloyd law college)
Introduction – India is democratic country, but country like India the opinion of public regarding homo sexuality is highly debatable issue. As we have conservative society so traditionally, We ease from homosexuality which even decline hetro sexuality outside of marriage. The Indian penal code, 1860 which was formulated by Lord Macaulay – The act rater attitude of homo sexuality is to be tire in of unnatural offences. Section 3771 of the Indian penal code given by the constitution of India t- whoever voluntarily has carnal intercourse against the order of the nature with any man, women, animal, shall be punished with imprisonment od either description for term which may extent ten years and also liable to fine.
The report published by government of the India in its bulletin 2 that one could not find reference regarding the offence of homo sexuality in spite of the homo sexuality is very little prosecuted in our country. If we go back in the history of INDIA there should be the reference of homo sexuality in the records. In the Indian society the attitude rather of well arranged group of eunuch (hijra) is always a traceable in our history and even in present day it is continued .
Western behaviour and attitude regarding homo sexuality
On the other hand in western Countries Homo sexuality is not a very big issue , they treat them like normal human beings but in india this is against of the Indian culture. This is to be noted that most of the developed countries in Europe the act and behavior of homo sexuality is legalized. South Africa is the first country in the world where homo sexuality is legalized in the year of the 1994. There after the countrie like hollland, New Zealand , Spain , canda and France etc. have legalized it. In USA the supreme court dered that the state is not empowerwed to legislate on the grounds of the homo sexuality behavior. There should be the protection of the lesbian and gay’s right. So the attitude towards the homo sexuality is very different from the western attitude.
The view to control HIV/AIDS a number of monogovermental aoganizations working in the field demarked determinitaionaliztion of homosexuality on te ground of tolerance and equity . The gay’s activitist contented that two consenting adults in private engaged in th homo sexual law can not be allowed to interfere in the acts played in the bedrooms , although it is said to be diminishing the concept of morality
Some sections of the people are in the strong belief that it will disrupt the married life and it is a direct threat to institution of marriage . It will also give a wrong signal to the society at large .
The hot issue of discriminialzation of homo sexuality is under the consideration before the supreme court against the judgment of the division of the bench of Delhi high court’s observation that section 377of Indian Penal Code , 1860 handal with an offence of homosexuality should be replead from the penal code.
Before this divison of the bench of Delhi high court about homo sexuality iN the NAZ foundation Vs government of NCT Delhi3 the various points relating to the offence of homo sexuality to raised are –
Public morality on the basis of the restriction of fundamental rights.
Homosexuality would be courrpt public morals and whether the concept of decrminialization of consensual enhance delinquent behavior.
This section viotaltes the constitutional gurantee of equality , privacy and dignty.
In the field of sex education public health prevention of HIV/AIDS , the aforesaid case the petitioner is delhi based no governmental prganixation working. Article 14, 15, 19 and 21 which are fundamental rights of the Indian constitution envisaged that the constitutional validity of section 377 of the Indian penal code, 1860 was challenged on the ground that having homo sexual acts betwwn consenting adults in private can not be said that it is a offence invites penal action.
BREIF OF THE FACTS
In the year 2001, the nax foundation4 writ a petition in the Delhi high court, challending the section377 of Indian penal code, 1860 of the Indian constitution on the basis of the covering the sexual acts consenting adults in privete, claiming that imposed law. Was in violation of article 14, 15, 19 and 21 (fundamental rights) of th eindian constitution. The apex court set aside the impugned order delhi court.
GROUNDS FOR CHALLENGE
Section 377 of Indian penal code of Indian constitution traditional anglo – christen ethical standards. In this ethical standards which cocieve of sex purely functional terms i.e. for the purpose of procreation only. Any non procreative sexual activity is thus viewed as being.the legislation of criminalization submission consensual oral and anal sex is out dated and has no place in modern society . In fact in this studies of this section of Indian penal code jurisprudence reveal lately it has been generally employed in the cases of child sexual assault and abuse by private criminilazation.
When right to privacy, human dignity of an individual and the human need from imminent personal sphere require that privacy and dignity claim concerning private, consensual, sexual relations are also afforded protection within ambit of said fundamental right to life and liberty given under article 21 of the constitution of India, 1950. It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations or sexual preferences , figure prominently with an individual personality and is easily with the crore of the private space; they are an alienable component of the right of life. Based on this line of reasoning case has been made to the effect that the probation of certain acts provided by section 377 of I.P.C. unreasonably abridges the right privacy and dignity with in the ambit of right to life and liberty under article 21 of the constitution of India , 1950 it was argued that the fundamental right which is right to privacy under article 21 of the Indian constitution can be abriged only for a compelling state interest which in its submission is amiss here. Further, section 371 of Indian penal code of the Indian constitution has a domino effect upon lives of homo sexual in as much as it not only perpetuates social stigma and police or public abuse but also drives homosexual activity underground here by jeopardizing HIV/AIDS prevention efforts and thus, rendering gay men and MSM increasingly vulnerable to contracting. It has been submitted that there is a consensual sexual intercourse of the kind mentioned above i.e. homosexual between two willing adults in privacy to be saved and accepted from the penal provision contained in section 3777 to ipc
AFFIDAVID OF NACO/MINISTRYHEALTH AND FAMILY WELFARE
The national aids control organization has submitted its response in the shape of affidavit affirmed by the secretary of ministery of health and family and family welfare , which thus also represents the view of the said ministry of the government of India. The submisiion of NACO only confirms the case set out by the petitioner that homosexual community is particularly susceptible to attracting HIV/AIDS in which a view of number of initiatives have been taken by national aids control organization to ensure that HIV prevention and intervention made efforts are available to said section of the society by amongst other , protecting and promoting their rights . In reply affidavits, NACO states that groups identified to be at great risk of acquiring and transmitting HIV infection due to high level of risky behavior and insufficient capacity or power of decision making to protect themselves from injection and generally described as high risks groups broadly include none who have sex with men and female sex workers and injecting drug users.
CONCLUSION– At last we conclude that it is to be noted that the SLP against the said landmark judgment of the Delhi high court is under consideration before the supreme court and notices have been directed to be issued to necessary parties and opinion of the union of India in this regard.