ARGUMENTS FOR LEGALISATION OF HOMOSEXUALITY

1. PRIVACY

Privacy is central to one’s identity, dignity, sense of self and autonomy. Privacy is a pre-requisite
for self-development. It violates Article 21 which ensures right to life and liberty to all citizens
of country. The fundamental right to liberty definitely includes right to private space.

J. Chandrachud, clarified that the “right to privacy and the protection of sexual orientation lie at
the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

2. FREEDOM TO EXPRESS ONE'S OWN IDENTITY IMPAIRED

An important feature of such individual autonomy is the ability to make one’s own choices,
develop and determine one’s personality and identity, and have intimacy and meaningful inter-
personal relations. It is the freedom to express one’s identity without fear.

3. LOSS OF DIGNITY AND EXPLOITATION BY SOCIETY

It encourages anti-gay violence and facilitates harassment, blackmail and exploitation by the
police and larger society. As noted by the Supreme Court, sexual orientation is an essential
component of identity, whose fulfilment is hindered when there is a loss of privacy and dignity.

4. DENIAL OF OPPORTUNITIES TO MINORITIES

The loss of privacy can lead to discrimination and denial of opportunities, leaving many amongst
the LGBTQI community on the margins of society.

5. AGE OLD LAW TO BE DISCARDED

IPC was drafted by the British, based on prevailing Victorian notions of morality which were
imported to India, and continue to remain here long after they have been discarded by the British.

6. CONSTITUTIONAL MORALITY ABOVE MAJORITARIAN VIEW

While law may be the product of representative majoritarian moral beliefs, constitutional
guarantees (and constitutional morality) will lose significance if they are given majoritarian
interpretations.
7. HOMOSEXUALITY IS INNATE AND SHOULD NOT BE PUNISHED-SCIENTIFIC
STUDY

Neurobiologist Simon Levay's 1991 Study on the Brains of 41 Cavaders found out that a cluster
if neurons in the brain were smaller in homosexuals which is the cause behind their
homosexuality. It is not a choice, it is innate. It is something they are born with, no one should be
punished for that.

8. HOMOSEXUALITY IS NOT DEVIANT BUT NORMAL STATUS

The shift in the understanding of homosexuality from sin, crime and pathology to a normal
variant of human sexuality occurred in the late 20th century. The American Psychiatric
Association, in 1973, and the World Health Organisation in 1992, officially accepted its normal
variant status. Research also demonstrated that people with homosexual orientation did not have
any objective psychological dysfunction or impairments in judgment, stability and vocational
capabilities. Psychiatric, psychoanalytic, medical and mental health professionals now consider
homosexuals as a normal variation of human sexuality.

9. HOMOSEXUALITY NOT UNNATURAL

According to the University of Oslo, homosexuality exists in over 1500 animal species, so why
is it so "unnatural" for humans.

10. HOMOEXUALITY NOT AGAINST RELIGIOUS SCRIPTURES

Homosexuality is seen as against religious scriptures, however it has to be understood that it is

not as sin since it takes place between two adults with their consent. Hinduism shows in
sculptures and scriptures people of same sex engaging in sexual activities. It has been so depicted
which means that it was practiced before and was acceptable. Homosexuality has an ancient
history in India. Ancient scriptures like Rig-Veda which dates back around 1500 BC and
sculptures and vestiges depict sexual acts between women as revelations of a feminine 14 world
where sexuality was based on pleasure and fertility. The description of homosexual acts in the
Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male
homosexuality in the medieval Muslim history, evidences of sodomy in the Tantric rituals are
some historical evidences of same sex relationship.
11. NO SIMPLE CATEGORIZATION INTO HOMOSEXUALS

There is an entire sexual spectrum out there including bisexuals, transsexuals and transgendered
people. In fact, sexuality is turning out to be a complex mix of biology, behaviour and identity.

12. LIBERALIST VIEW SHOULD BE ADOPTED IN DECIDING CRIMINALITY

We should adopt the liberalist view and in a progressive society such activities should not be
prohibited which does not harm others in the society.

13. VIOLATES ARTICLE 14 AND 15

It violates Art. 14 and 15 which guarantees equality before law to all individuals since people are
discriminated on the basis of their sexual preference. the classification under Section 377 is not
reasonable because it has classified the people on the basis of their sexuality which is prohibited
under Article 15 that is, one cannot be discriminated on the basis of sex. By prohibiting
discrimination on the basis of sex, article 15 means that there are no standard behavioral patterns
related to the gender.

14. UNHAPPY MARRIAGES DUE TO SOCIAL STIGMA ATTACHED TO

HOMOSEXUALTIY

Due to the stigma that surrounds homosexuality many gays and lesbians marry members of the
opposite sex to appease their family members. This often leads to unhappy marriages where the
unsuspecting spouse is the one who is affected the most.

15. DENIAL OF SELF OWNERSHIP

Idea of self ownership was given by Robert Nozick. As the nomenclature itself suggests, it
means I am the owner of my own self. When I own myself, it is only I who will decide whom I
should marry. State has no right to intervene in between because is State does this; it would mean
that my ‘person’ belongs to State, not to my own self.

16. COMMONWEALTH COUNTRIES HAVE ALREADY DECRIMINALIZED IT

Important members of Commonwealth have decriminalized it years ago. Ireland, United States
of America (USA), Nepal, South Africa, Belgium, Denmark, Brazil, Portugal, Finland, Scotland,
France can legalise it, why can’t India do the same?

17. QUESTIONS POSED BY S. 377

Why should someone’s dignity and privacy be undermined by their sexual preference?

Why should someone’s fundamental life choices be conditioned by other people’s prejudice,
ignorance and stigmatisation?

Why should public health be compromised by an archaic and pedantic notion of public morality?

And finally, why should a sizeable population of Indians (or even a “miniscule minority”) be
deemed criminals in the eyes of the law, simply for being themselves?

CONCLUSION

The Parliament must also act and pass a comprehensive anti-discrimination law, to protect such
minority and disadvantaged groups. Only then will we move a step closer to achieving the
constitutional goal of equality.