CONSENSUAL GAY SEX: THE JOURNEY AND NEW DAWN

Sexual orientation is something which is the intinisic essence of what one’s body feel or desire. Attraction towards opposite sex may be the natural instinct but it is equally true that the liking for same sex is not offence either. And the penile vaginal penetration if has been accorded the status of natural sex then we are sitting on the verge of Landmark Judgement when Supreme Court could make consensual gay sex very much legitimate. The archaic law embedded in the Indian Penal Code by the Britishers is set to see a new dawn. LGBTQ community do possess the rights which are inherent in every human being- the human rights. But for claiming it they have lost the pride and were suppressed to the clandestine living.

2 July 2009 brought the new lease of life into the community when Delhi High Court while deciding Naz Foundation V NCT of Delhi made it lucid that the consensual homosexual acts involving adults should be decriminalized. Sexual orientation and Sexually Transmitted diseases were discussed at length. Police vices and tortures were also taken in consideration. Then Chief Justice of Delhi High Court Ajit Prakash Shah and Justice S.Muralidar delivered the oxygen to the asphyxiated hopes and succumbed aspirations.

11 December 2013 was the black day in the history of LGBTQ fight when the life which was supplied by Naz Foundation Case, came to halt when Supreme Court through Justice GS Singhvi and Justice Mukhopadhayaya in Suresh Kumar Kaushal V. NAZ Foundation held Section 377 of IPC very much Constitutional. No where they found Section 377 obliterating the Article 14,15,21 of the Constitution.

Various review petitions by the Central Government and Naz Foundation was rejected by the Supreme Court.

But when the society progress the law shall also take a leap. And it happened by an obiter dicta by constitutional bench of Supreme Court in deciding Justice K.S.Puttaswamy (retd.) and anr. V. Union of India and ors. better known as right to privacy case. With advent of Right to privacy as fundamental right, court also discussed in length about sexual orientation and held that it is an essential attribute of privacy. Also it was held that Article 21 includes Right to Health. The screening of community gets obstructed because of criminalization of same gender sex.

This development was humongous and the hazy eyes are in anticipation of permanent resolution of their misery. They are what they are, we are not what we are. Are we sensitive enough to respond to their sexual orientation and say yes you are what we are – – the humans?

Let us see what happens tomorrow on 6 September 2018.

Dr. Ashish Tanwar,

Faculty of Law (Campus Law Centre), Delhi University.

 

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