Section377

• The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) held that criminalising sexual activities with consent in private not only impairs the dignity of those persons, but it is also discriminatory and impacts the health of those people.
• The Delhi High Court decriminalised homosexuality on the grounds that Section 377 is a violation of Article 14, 15 and 21.
• Supreme Court, in Suresh Kumar Koushal v. Naz Foundation (2013) case, set aside the Delhi High Court judgment and said that homosexuality under Section 377 of IPC is illegal and will continue to be an offense.
• The court said that Section 377 did not suffer from any “constitutional infirmity”.
• It said there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority.
• The court also added the responsibility of amending or removing Section 377 lay with the Parliament.
• In the Puttuswamy vs. Union of India case the Supreme Court held right to privacy as a fundamental right.
• The court stated that privacy included the preservation of personal intimacies and that sexual orientation was an essential attribute of privacy.
• The Court argued that right to privacy and the protection of sexual orientation lay at the core of fundamental rights guaranteed under Article 14, 15 and 21

• The Supreme Court, while decriminalising homosexuality, has acknowledged the basic human needs of the citizens.
• This will help the community claim equal constitutional status as other citizens.
• It also affirms their right to claim the right to adopt, marry and have a family.
• It may also prevent social exclusion with the court declaring that it was not a mental disorder. But something innate to a human being.
• It will take time for it to be openly accepted by the society.
• It will provide an impetus for other countries, especially those of the Commonwealth of Nations, to revoke similar provisions that criminalise consensual sexual relations.

• Consensual Sexual orientation protected under Articles 14, 19 and 21: Consensual sexual relationships between same sexes are protected under Articles 14, 19 and 21 of the Constitution of India.
• The right to choose one’s partner: Right to choose one’s partner is manifest in Article 21. Various experts argue that section 377 which criminalizes gay sex violates Article 14, 15, 19 and 21 of the Constitution because there is discrimination on the basis of sex.
• The affection of the life of LGBT people: Same-sex is a normal variant and the society has favored decriminalization of section 377 as it is affecting the lives of LGBT people.
• Violation of Right to Association: Section 377 violates the right to form an association between sexual minority and the LGBT community is afraid of forming any kind of association fearing police action.
• An instrument for Exploitation: Many critics feel that section 377 is just an instrument of exploitation and it is almost not possible to decide what type of sex two consenting individuals are having in private.
• Unhappy Marriage: Due to the stigma of Homosexuality, LGBT people bound to marry the opposite sex and that leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most.

In order to create better-living place for LGBT community, the Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law.  There are no laws protecting gays and lesbians from discrimination at the workplace or laws that allow them to marry their partner of choice. If Sec 377 is abolished, it opens a window of acceptance and achievement for the LGBT community.