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An estimated 3-minute read

April 19 - Supreme Court's take on Homosexuality

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It has been declared by Supreme Court that it would start testing the constitutional validity of section 377 of Indian Penal Code from April 19, 2011. The petition is filed against the decision of Delhi high court legalizing section 377 declaring it as a violative of article 14, 15 and 21 of the Indian Constitution. Section 377 provides provision for the penal against those persons who indulge in the activities of unnatural offences. Going back to the period when Indian Penal Code was drafted by Lord Macaulay in the year 1860, the persons having sex with other persons of same sex were to be punished on the charge of unnatural offence which includes other offences for eg. sodomy. After Independence, the main reason gay sex ( herein, it homosexual relation would be referred as gay sex ) was criticized because they were considered to be a high risk section who can be affected by HIV. But over a period of time, it has been analyzed that gay sex is not the only group which is categorized under high risk group affected by HIV, there are other groups also which are categorized under this category. 
The petitioner in the Delhi High Court, Naz Foundation has been working for the rights of LGBT ( Lesbian, Gay, Bisexual, Trans-gender) . It contended in front of the court that under the cover of section 377, HIV prevention efforts were found to be severely discriminatory by the state. Moreover, this section section is used as a weapon for police abuse, hence violating the fundamental rights which have been granted to them. They. Moreover, they argued that by criminalizing gay, the right to privacy of these citizens have been violated. In fact, they are right in contending that and favouring homsexuals because the section under IPC which was enacted by Lord Macaulay is a clear discrimination against the homosexual groups. Under Indian law, two adults who are indulging in sexual intercourse with consent is legal. Then the section which is present in the IPC is a clear violative of this law and this law should be applied uniformly irrespective of the sexual behaviour. 
Terming it as 'unnatural' seems very absurd because this practice of having sex with the person of same gender has been in the society for centuries. Even in Manusmriti, homosexual behaviour has been provided but it was considered as a minor offence unlike today until the decision was given by the court. Sex is a desire which is aroused inside human towards another person and it is not necessary that the person towards whom the desire has been aroused must be of same sex. By saying them criminals, we are taking away their fundamental rights from them, and it is unjust. These groups are considered as a part of the queer community who are against the very practical notion of the patriarchal society which gives acceptance only to the heterosexual behaviour. They hide their identity from the society because they are not willing to accept it for long period of time and from the fear of getting charged with section 377. But the decision of Delhi High Court has provided this groups a sense of freedom i.e. now they can also mover freely without any fear. In other words, it is a step towards a society which would accept the homosexual behaviour without any discrimination and it is indeed a very good step. 
Soon after the decision of the Delhi High Court, cities like Delhi, Mumbai, Calcutta , Bangalore has become the center for the Gay night life and certain days were specifically nights in the clubs are for LGBT groups. This can be seen as a change in the society from the period when it was not at all accepted, Homosexuals are getting extensive support from many sections of the society. 'Bombay Dost', the first Indian Gay magazine was relaunched by Celina Jaitley. The recent developments are a good sign for the homosexuals and after the decision, they have started revealing their identities a couples which is indeed a very good step. Contention of Naz foundation that this group will remain vulnerable to HIV until and unless this section is removed from the Indian Penal Code holds true, because when Homosexuality is legalized it would be easier for them to access the medical faculties without any fear of showing their identity.
It would be very crucial moment when Supreme Court would decide whether the decision taken by the Delhi High Court is valid or not. We have to wait till then too see the take of Supreme Court on section 377 of Indian Penal Code.

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