LGBT RIGHTS AND DECRIMINALIZATION OF SECTION 377

LEXKHOJ INTERNATIONAL JOURNAL OF CRIMINAL LAW ISSN 2456-2297 (VOL I ISSUE II) Website: www.lexkhoj.com Email ID: lexkhoj@gmail.com ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |2 EDITORIAL NOTE TEAM LEXKHOJ is delighted to announce its Second edition of the criminal law journal. Lexkhoj International Journal of Criminal Law is a Peer-Reviewed Monthly Research Journal. Our purpose is to provide a journal that offers a multi-disciplinary analysis of issues concerning Criminal Law. The journal will strive to combine academic excellence with professional relevance and a practical focus by publishing wide varieties of research papers, insightful reviews, essays and articles by students, established scholars and professionals as well as by both domestic and international authors. “An act is not guilty unless the mental state with which it is done is also guilty”. The crime is the combination of both Actus reus and Mens rea, and is a single unity. We live in a modern society which is subject to major changes that stem from, for instance, internationalization and technological development. In many aspects these changes also represent societal challenges that demand a rethinking of legal solutions. Our increased connectivity through internet has created new opportunities for criminals. Now the crime is not limited to the traditional ways. This monthly issue of the journal would like to encourage and welcome more and more writers to get their work published. The papers will be selected by our editors who would rely upon the vibrant skills and knowledge immersed in the paper. Needless to say, any papers that you wish to submit, either individually or collaboratively, are much appreciated and will make a substantial contribution to the early development and success of the journal. Best wishes and thank you in advance for your contribution to the Lexkhoj international journal of criminal law. ISSN 2456-2297 VOLUME I ISSUE II EDITORIAL BOARD Founder Editors Vishnu Tandi Sukriti Ghai Yogita Lohia Editor-in-Chief Parikshet Sirohi Executive Editors Abhinanda Monika Singh Shilpy Chaudhary LIJCRL |3 ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |4 LGBT RIGHTS AND DECRIMINALIZATION OF SECTION 377 * Katiyani Juneja, GNDU, Amritsar, Punjab & Advocate Kunal Vinayak, Punjab and Haryana High Court, Chandigarh ABSTRACT Our Society is formed with vibrant traditions and customs which are foundational pillars. India, a country of cultural values cannot afford to fall into western ways. But since growing economy and people getting more and more aware, our country finally has to step out and walk with the rest of the world by confirming LGBT rights. Modernization has made life practical and has led to casting off our old morals and values. The occasion has come for all of us to realize and accept that we have to shed our fence sitting attitude and come up with provisions, which are just fair and reasonable to tackle these fresh avenues efficiently. Marriage is considered as a sacrament in our country and our constitution provides for right to live life happily, therefore if two people of same sex want to be together and that is what makes them happy then nobody should get authority to rebuke or punish them just on the basis of their sexual orientation. In India public discussion of homosexuality is been inhibited in any form and it is a taboo too. The British enacted section 377 of the Indian Penal code in 1860, which was meant to criminalize “sexual offences against the order of nature” but the order of nature has not been defined anywhere. Though over the years the judicial pronouncements has extended the application of this section to all kinds of sexual expressions which are generally possible between two male persons. Homosexuality in India stands criminalized because of a mid 19th century colonial law. Laws cannot be stagnant, as with passing time there is a need to sync with these new issues cropping up. The taboos of inhibiting these issues and not discussing them are no solution. It’s time to come out of our closets and accept that they are not a “hoax” rather take a step forward towards protecting our basic human rights. Moreover the criminalization of homosexual conduct is unreasonable and arbitrary, there should be just and reasonable nexus between the classification and the object to be achieved by legislation. ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |5 Introduction In all regions, people experience violence and discrimination because of their sexual orientation or gender identity. In many cases, even the perception of homosexuality or transgender identity puts people at risk. These violations include, (but are not limited to) killings, rape and physical attacks, torture, arbitrary detention, the denial of rights to assembly, expression and information, and discrimination in employment, health and education. United Nations mechanisms, including human rights treaty bodies and the special procedures of the Human Rights Council, have documented such violations for close to two decades. Although the Universal Declaration of Human Rights does not explicitly mention sexual orientation or gender identity, evolving conceptions of international human rights law include a broad interpretation to include the rights and the protection of the Rights of LGBT people around the world. Human Rights do not discriminate. LGBT rights are human rights. Safety, legal recognition, family, education, and love are all human rights, regardless of sexual orientation or gender identity. All people, regardless of their sexual orientation or gender identity are entitled to enjoy the full range of human rights, without any exception.1 The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, developed in 2006 by a group of LGBT experts in Yogyakarta, Indonesia in response to well-known examples of abuse, provides a universal guide to applying international human rights law to violations experienced by lesbians, gay men, bisexual and transgender people to ensure the universal reach of human rights protections. However, across the globe, there remain many instances where an individuals' sexual orientation or gender identity can lead them to face execution, imprisonment, torture, violence or discrimination. The range of abuse is limitless and it contravenes the fundamental tenets of international human rights law.2 Report of the United Nations High Commissioner for Human Rights, “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity,” 17 November 2011.Retrieved from : http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf ; Last visited on 23rd January 28, 2016 1 2 Retrieved from : http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights ; Last visited on 23rd January 28, 2016 ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |6 However, every day, across the globe, people face abuse in the form of discrimination, violence, imprisonment, torture or even execution because of their sexual orientation or gender identity. Persecution on the basis of sexual orientation and gender identity, real or perceived, violates the basic tenets of international human rights law. People around the world face violence and inequality and sometimes torture, even execution because of who they love, how they look, or who they are. People detained or imprisoned solely because of their homosexuality including those individuals prosecuted for having sex in circumstances which would not be criminal for heterosexuals, or for their gender identity are considered to be prisoners of conscience and Amnesty International calls for their immediate and unconditional release. There is a need for the decriminalization of homosexuality where such legislation remains, including a review of all legislation which could result in the discrimination, prosecution and punishment of people solely for their sexual orientation or gender identity. All such laws should be repealed or amended. Meaning and History of LGBT rights The LGBT community or GLBT community, commonly referred to as the gay community, is a loosely defined grouping of lesbian, gay, bisexual, and transgender (LGBT) and LGBTsupportive people, organizations, and subcultures, united by a common culture and social movements. Gay is a term that primarily refers to a homosexual person or the trait of being homosexual. The term was originally used to refer to feelings of being "carefree", "happy", or "bright and showy". The term's use as a reference to homosexuality may date as early as the late 19th century, but its use gradually increased in the 20th century. In modern English, gay has come to be used as an adjective, and as a noun, referring to the people, especially to gay males, and the practices and cultures associated with homosexuality. By the end of the 20th century, the word gay was recommended by major LGBT groups and style guides to describe people attracted to members of the same sex. The term homosexuality and the laws prohibiting 'unnatural' sex were imposed across the world through imperial might. Though they exerted a ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |7 powerful influence on subsequent attitudes, they were neither universal nor timeless. They were products of minds that were deeply influenced by the 'sex is sin' stance of the Christian Bible.3With typical colonial condescension, European definitions, laws, theories and attitudes totally disregarded how similar sexual activity was perceived in other cultures. Love of a man for a boy was institutionalized in ancient Greece, amongst Samurais in Japan, in certain African as well as Polynesian tribes. To find out if homosexuality or same-sex intercourse existed in India, we have to turn to three sources - images on temple walls, sacred narratives and ancient law books. ―Rig-Veda‖, one of the four canonical sacred texts of Hinduism says ―Vikriti Evam Prakriti‖ (meaning what seems un-natural is also natural), which some scholars believe recognizes homosexual/transsexual dimensions of human life, like all forms of universal diversities. Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were not necessarily considered inferior in any way until about 18th century. The range of erotic and graphic sculptures is wide and all rules are broken. Once in a while, hidden in niches as in Khajuraho, one does find images which suggest existence of homosexuality. Gender based violence is also related to the social construct of what it means to be either male or female. When a person deviates from what is considered ‘normal’ behaviour they are targeted for violence. This is particularly acute when combined with discrimination on the basis of sexual orientation or gender identity. While most instances of gender based violence are committed against women and girls, they are not the only ones who can be targeted because of their gender. Men and boys may be targeted for not fitting into a dominant form of masculinity and people of all genders may be targeted if those around them do not respect their gender expression. Young people who identify as or are perceived to be lesbian, gay, bisexual, and transgender or intersex is more at risk for harassment and violence due to their sexual orientation or gender identity. Violence like this can be because of an assumption about someone’s sexual orientation based on their gender expression. Girls who are too ‘masculine’, or boys who are too ‘feminine’, are frequently assumed to be lesbian or gay, and harassed or discriminated against because of Shristi Sinha and Sanmati Raonka, Legal status of gay marriages in India, “International Journal of Legal Research,” 2014. 3 ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |8 their perceived sexual orientation. Violence motivated by the real or perceived sexual orientation or gender identity of the victim is widespread. LGBT people can face violence anywhere: on the street, in bars and clubs or other public places, even at home – sometimes from family members. Pervasive discrimination and violence against individuals on the basis of their sexual orientation, gender identity or expression takes place at all levels of society, and can be condoned or even perpetrated by local or national laws and policies. According to findings in 2014, same-sex sexual conduct is a criminal act in 78 countries worldwide, in breach of these states’ international obligations to protect all individuals without any discrimination. Legally, even death penalty is possible for consensual same-sex sexual conduct between adults in many countries like Afghanistan, Iran, Brunei Darussalam, Pakistan, Saudi Arabia etc. Even in countries where anti-homosexuality laws are not routinely implemented, the fact alone that the laws exist provides opportunities for abuse, including blackmail and extortion, by police and others. Furthermore, the existence of these laws sends a message to the broader population that discrimination on the basis of sexual orientation and gender identity is acceptable, and that human rights do not apply to LGBT people. This creates an environment in which harassment, intimidation and violence against LGBT people can flourish, and people can perpetrate such acts with impunity. In many places where same-sex relationships are better accepted, people also face discrimination and violence due to their gender identity or expression. Hate crimes, assault and attacks on people who identify as transgender are common. Hate-motivated violence has a particular negative, long term impact on victims. It also creates a broader climate of fear among LGBT individuals, groups and communities and especially when states fail to bring the perpetrators to justice. Position in India Indian culture tolerated same-sex eroticism for centuries. But the erstwhile British rulers found this to be repugnant, and declared it a crime in the Indian Penal Code (IPC), which was enacted in 1861. Section 377, originally drafted by Lord Macauly in the early 1830s, reads: ISSN 2456-2297 VOLUME I ISSUE II LIJCRL |9 "OF UNNATURAL OFFENCES: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall liable to fine. Explanation: Penetration is sufficient to constitute carnal intercourse necessary to the offence described in this section." Lesbianism has been rarely brought before a court of law in India and this is not covered by section 377. Sexual intercourse by a human being with lower animal termed bestiality; and anal intercourse between man and man or between man and woman, sodomy, is covered under this section. The offences under this section are cognizable, non-bail able ones and are tried by a Magistrate of the first class. The age of consent for a woman, defined in the section on rape, is 18 years. Marriage is taken as an implied consent by the wife for "normal" intercourse and not for anal intercourse. If the wife consented, both are guilty under section 377; if she did not, the husband alone is. Under section 13 of the Hindu Marriage Act, 1955, a wife can apply for annulment of marriage if the husband has been guilty of sodomy/bestiality. Analyzing the outdated section 377, Shrikant Bhat, criminal lawyer from Bombay, writes: "What is meant by Macaulay when he postulates the order of nature? What is Order? What is nature? Would the male genital to female mouth (fellatio) and female genital to male mouth (cunnilingus) position be against the order of nature? Nature conceived by whom? Order perceived by whom?4 India is one of the few countries that continue to keep an anachronistic sodomy law on its books. The British passed such laws in all their colonies. In July 1990, Hong Kong decriminalized adult consensual homosexual acts. India, Pakistan, Malaysia, and Singapore are the only Asian colonies that still have sodomy laws.7 Isn't such a law violative of Article 21 of the Constitution, which guarantees that no one can be deprived of his/her life or personal liberty except according to law that can be regarded as a reasonable restriction on a person's liberty? Does "life" as defined by the Supreme Court mean mere survival? Does it not mean life in all its manifestations 4 Indian Law and the Homosexual, Bombay Dost, No.2, 1990. ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 10 including the environment for a person in whom s/he seeks out his/her destiny as s/he feels that destiny? The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution. The criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, and humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgender is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied moral full citizenship. Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalizes consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in The Indian Constitution–Cornerstone of a Nation, ―they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India‖. In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen. A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 11 should fail the reasonableness test. Position around the globe Everyone has a sexual orientation and a gender identity, and this shared fact means that discrimination against members of the Lesbian, Gay, Bisexual and Transgender community, based on sexual orientation and/ or gender identity, is an issue that transcends that community and affects all of us. Sexual orientation covers sexual desires, feelings, practices and identification. Sexual orientation can be towards people of the same or different sexes (same-sex, heterosexual or bisexual orientation). Gender identity refers to the complex relationship between sex and gender, referring to a person's experience of self expression in relation to social categories of masculinity or femininity (gender). A person's subjectively felt gender identity may be at variance with their sex or physiological characteristics. Human rights abuses based on sexual orientation or gender can include violation of the rights of the child; the infliction of torture and cruel, inhuman and degrading treatment 5; arbitrary detention on grounds of identity or beliefs6; the restriction of freedom of association and the denial of the basic rights of due process7. Examples include: Execution by the state, Denial of employment, housing or health services, Loss of custody of children, Rape and otherwise torture in detention, Threats for campaigning for LGBT human rights, Regular subjection to verbal abuse In many countries, the refusal of governments to address violence committed against LGBT people creates a culture of impunity where such abuses can continue and escalate unmitigated. Often, such abuses are committed by the state authorities themselves, with or without legal sanction. In June of 1969, a riot ensued in response to police brutality aimed at the LGBT (lesbian, gay, bisexual, and transgender) community gathering at the Stonewall Inn (a gay bar) in New York 5 Article 5 of The Universal Declaration of Human Rights (UDHR) Article 9 of The Universal Declaration of Human Rights (UDHR) 7 Article 20 of The Universal Declaration of Human Rights (UDHR) 6 ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 12 City. These protests against police raids, harassment, and ill-treatment helped galvanize the LGBT community and allies across the U.S., giving birth to the modern LGBT rights moment. A lot of progress has been made since then, including the recent Supreme Court decision that legalized marriage equality throughout the U.S. Even with the positives, LGBT people in the United States continue to face discrimination and violence, especially based on gender identity. Across the globe, 75 countries still criminalize same-sex consensual relations between adults. Additional countries criminalize same-sex activity through anti-LGBT “propaganda” laws and the tight control of a person’s right to change their gender identity on legal documents.8 In addition to domestic issues facing the LGBT community nationally, Amnesty International is dedicated to advocating for the rights of the LGBT community internationally, from laws criminalizing same sex relationships to the persecution of LGBT individuals. No matter what one’s actual or perceived sexual orientation or gender identity, all people have the right to be treated by their community and their government equally. • Colombia: In July, one transgender woman was found dead; two others were attacked with knives in a separate incident.9 • Poland: AIUSA recently found that Poland’s legal system has failed to protect the LGBTI community as well as other minority groups from hate crimes. • Tunisia: A Tunisian student was sentenced to one year in prison for engaging in same sex relations. • Russia: Since 2013, the Russian authorities have targeted journalist Elena Klimova and her online LGBT youth group, Children 404, with a draconian anti-LGBT propaganda law. • Kazakhstan: In February 2015, Kazakhstan’s Senate passed a law similar to Russia’s antiLGBT law. Although it was later struck down by the Constitutional Court, Amnesty International remains concerned that new discriminatory laws could be introduced. 10 In August 8 Retrieved from: http://www.hrc.org/resources/why-the-equality-act ; Last Visited on 21st January, 2016. Retrieved from: http://www.amnestyusa.org/get-involved/take-action-now/colombia-protect-transgender-womenua15515; Last Visited on 21st January, 2016. 10 Retrieved from: blog.amnestyusa.org/asia/ kazakhstan-reject-anti-lgbt-propaganda-law/; Last visited on 21st January, 2016. 9 ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 13 2014, Costas and his partner were beaten up in a homophobic, racist attack. More than a year later, the attack has still not been investigated, and Costas’ was attacked again in March 2015. Discrimination of Section 377 While the Supreme Court’s ruling that same-sex couples have the same right to marriage as heterosexual couples in Obergefell v. Hodges11 June 2015 represented a long-awaited victory for LGBT rights, there are still more obstacles for the LGBT community when it comes to full equality under the law. Currently, there are no federal protections against employment discrimination for LGBT workers, neither are there comprehensive federal laws protecting the LGBT community from other forms of discrimination: so, an LGBT person can get married to the partner of their choosing in all fifty states, but can still be fired from their job, kicked out of their home, or denied access to health care, depending on the state where they live. In the present context, there is a big hue and cry on homosexual conduct. Gay and lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalizing the homosexual conduct. (1) It violates right to liberty guaranteed under Article-21 of the Indian Constitution, which covers private consensual sexual relations The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality v. Ministry of Justice12, the South African court held that, ―Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside communit. In India for the first time there has been a demand (through the written submission by petitioners in a suit pending before the Delhi High Court challenging Section-377 of IPC) that there should be a recognition of the fact that central to the concept of ―personhood‖ 11 12 576 U.S. ___ (2015) 1999 (1) SA 6 ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 14 is the universal need for an intimate personal sphere where the pursuit of happiness may be fulfilled. It follows logically that to be meaningful the pursuit of happiness must ensure that the individuals are given the right to choose how to achieve personal happiness and more so what constitutes personal happiness for them in the first place; that it should upheld individual autonomy. This in turn goes on to ensure a private sphere within which the right to life and liberty may be enjoyed. The privacy-dignity claim concerning private consensual sexual relations is entitled to protection as a fundamental right as it falls within both aspects of right to privacyordered liberty and individual autonomy. Even at the international level, the right to privacy has been recognized in the favour of lesbians and gay man. In the 1980‘s, the European Court of Human Rights was the first international body to hold that the laws criminalizing consensual, private sexual activity between adults violated the right to privacy as protected by the Article 8 of ECHR. Most recently the European Court of Human Rights decided in ADT v. U.K.13, that the criminalization of sexual activities between men when more than two men are present also violated the right to privacy. Thus consensual private sexual relations come within the purview of the right to privacy guaranteed under Article-21 of the Constitution. (2) Criminalization of homosexual conduct is unreasonable and arbitrary Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that, natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the section is vague, unreasonable and arbitrary and is completely based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices? 13 Unreported, ECHR, 31st July 2000 Appeal No. 35765/97 International ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 15 Moreover homosexual activity can never be termed as unnatural. Modern understanding of psychiatry and psychology, no longer views homosexuality as a disease or a disorder. Thus the very objective of the section is facile, unscientific and based upon prejudice alone. Therefore the section, which is talking about criminalizing the homosexual conduct, is violation of Article 14 of the Constitution. (3) Section 377 discriminates on the basis of sexual orientation: forbidden under Article 15 of the Constitution Article 15 prohibits discrimination on several grounds, which includes sex. By prohibiting discrimination on the basis of sex, Article 15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by Section 377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore constitutes discrimination on the basis of sexual orientation. (4) Section 377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects Section 292 of IPC punishes “Obscenity”; the current definition of which can lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved. The Workman‘s Compensation Act, 1923 provides that in case of death caused by injury at the work place, the dependents of the employee are entitled to receive the compensation from the employer, the dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother and an infirm son or daughter. Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example and there are other such Acts that are discriminatory towards homosexuals. The Provident Fund Scheme, 1952 and the Payment of Gratuity Act, 1972 define family in such a way that a lesbian or gay couple cannot nominate each other for receiving the PF or gratuity. ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 16 (5) No constitutional morality being harmed The question whether morality can be a ground for imposing restriction on fundamental rights was discussed by the High Court in the case Naz Foundation v. Govt. of NCT of Delhi14 by referring to the judgments in Gobind v. State of Madhya Pradesh15, Lawrence v. Texas16, Dudgeon v. UK17, Norris v. Republic of Ireland18, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice19, the words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise, The Indian Constitution –Cornerstone of A Nation, The Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court and observed that popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality is based on shifting and subjecting notions of right and wrong as distinct from a constitutional morality which is derived from constitutional values. And thus it is constitutional morality that should pass the test of state interest and not the public morality, even if it be majority view. Moral indignation, howsoever strong, is not a valid basis for overriding individuals ‘Fundamental rights of dignity and privacy. In Indian context, the latest report (172nd) of Law Commission on the subject instead shows heightened realization about urgent need to follow global trends on the issue of sexual offences. In fact, the admitted case of Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same- sex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de-criminalization of such activity, so that they can be identified and better focused upon. 14 160 Delhi Law Times 277 (1975) 2 SCC 148 16 539 U.S. 558 (2003) 17 European Court of Human Rights Application No.7525/1976, 18 European Court of Human Rights Application No. 10581/1983 19 1999 (1) SA 6 15 ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 17 Conclusion Sexual orientation and gender identity are integral aspects of our selves and should never lead to discrimination or abuse. All people, regardless of their sexual orientation or gender identity, should be able to enjoy the full range of human rights, without exception. Homosexuals may not be completely normal but they are more common than we contemplate; their condition doesn't enfeeble their caliber or weaken their spirits; it's only that they fear ridicule and ostracism by the people who seem to take their perfect sexual alignment for granted. The gay community is striving for recognition and assertion of its due rights, and the world is gradually discarding it's obsession with homophobia. Homosexuals are having faces and voices, space and choices. The UNHRC with its positive judgment has reaffirmed this growing revelation of truth. Nations are embarking on legalizing same-sex marriages. Convincing exceptions like the Muslim countries which interpret the stringent Sharia Law may be a matter of more time for they have preferred to carry on with their conservative old ways since ages. But how can one justify S.377 in the Legal framework of a vision-bound state like India? The said section fails to distinguish between consensual and non-consensual sexual intercourse between two adults of the same sex and hence, is implemented arbitrarily. When the Law itself is catering such anachronistic provisions, the supporting wings of the sexual minorities have no options left out to secure them their rightful and deserving place. It's natural that until such miscarriage and perversion of Law and state agencies is at large, until they stop deriving lucrative benefits out of these people, it will be hard for the homosexual community to maintain self-esteem and come out of their shell. There is also no recourse available to them to book the perpetrators of crime against homosexuals. The sociomoral bias and taboo will not allow them any defense and they will continue to suppress their true identities or live double clandestine to evade humiliation and ostracism. The bad journalism is a huge setback for them in their rehabilitating efforts. Marginalizing the gay community will lead to promiscuity and multiple-partners which will make them more vulnerable to HIV and AIDS. It is a moralistic bias and sheer hypocrisy where the stake of dignity is huge, which is the basal stone of human rights! Curiously, while the British law from which S.377 had originated was repealed way back in the Great Britain in 1969, the same still exists in India. Petitions are stacking before the court for striking down of the law; ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 18 most recently the appeal by Naz Foundation has been rejected by the apex court. Activists are pointing fingers at the judiciary for an arbitrary decision. The current state-of-affairs calls for not only a repeal or redefinition of the old law but also a new reassuring law to put a tab on all those crimes or discrimination perpetuated against the consenting homosexuals or the sexual minority community. In a nut shell, they need an identity as well security in order to live a life that any ordinary civilian deserves. Amnesty International is committed to highlighting instances of abuse to protect the basic dignity of LGBT people. Amnesty International is also committed to educating and preparing activists to speak out about these cases.  The Ally Toolkit provides important information about LGBT rights, identities, and ally ship so that members can have a more meaningful impact and interaction with the LGBT rights movement. The Ally Toolkit begins with background information and important advice, from how to be a good ally to understanding terms and inclusivity. The Toolkit then moves to global instances of human rights abuse experienced by LGBT people. With a stronger background and vocabulary, Amnesty activists will be able to support LGBT human rights in their communities and across the world. The right of adults to enter into consensual marriage is enshrined in international human rights standards. “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”20 Civil marriage between individuals of the same-sex is therefore an issue in which fundamental human rights are at stake. The denial of equal civil recognition of same-sex relationships prevents many people from accessing a range of other rights, such as rights to housing and social security, and stigmatizes those relationships in ways that can fuel discrimination and other human rights abuses against people based on their sexual orientation or gender identity.  There is a need to oppose discrimination in civil marriage laws on the basis of sexual orientation or gender identity and to call on states to recognize families of choice, across 20 Article 16, Universal Declaration of Human Rights (UDHR) ISSN 2456-2297 VOLUME I ISSUE II L I J C R L | 19 borders where necessary. States should not discriminate against minority groups based on identity.  There is a need to ensure that all allegations and reports of human rights violations based on sexual orientation or gender identity are promptly and impartially investigated and perpetrators held accountable and brought to justice.  Take all necessary legislative, administrative and other measures to prohibit and eliminate prejudicial treatment on the basis of sexual orientation or gender identity at every stage of the administration of justice  Ensure adequate protection of human rights defenders at risk because of their work on human rights and sexual orientation and gender identity. LGBT rights are human rights. Safety, legal recognition, family, education, and love are all human rights, regardless of sexual orientation or gender identity. Together we can make our schools, communities, and the world better for everyone.