MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI.

Legal Methods Project

A Socio-Legal Analysis of Homosexuality.

Submitted to: Mr. Sajid Sheikh

Submitted on: 12/11/2023
Name: Vedika Kunal Kulkarni
Enrolment no: 2023114
Section: B
Course: B.A., LL.B. (Hons.)

Page 1 of 11
Table of content

1. Introduction…………………………………………..4
2. Main theme…………………………………………...5
3. Conclusion…………………………………………….10
4. Annexures……………………………………………..11

Page 2 of 11
Introduction:
As the title suggests, A socio legal analysis of homosexuality, the research indeed aims to do
the same. The research will talk about the homosexuality as a concept, as a term, its scope and
changing attitudes of people towards homosexual beings while also elaborating upon the legal
side of the homosexuality with reference to famous case laws.
The term homosexuality is wide in nature but understanding it in a simple way is really
important in order to comprehensively analyse the legal scenario of the same. The research
aims to explain the issue in a simplest possible way in order to help anyone understand the
concept.

Page 3 of 11
Main theme:
What does Homosexuality mean?
‘Homosexuality’, A term considered mutually exclusive to the Indian society and a taboo by
many, is often a concept of debate and discussions.
The Letters LGB in the term LGBTQIA++, stands for Lesbian, Gay and Bisexual which is
regarded as homosexuality. A person of same biologically assigned sex, getting attracted
towards a person with the same biologically assigned sex. For example, A biological Male
getting attracted or having sex with another biological male or a biological female doing the
same with another biological female. Biological male or female, here means, A person who has
been assigned with the male or female genitals by birth and belong to that particular sex.
1
LGB in the LGBTQIA++ Community are Gender orientations and not genders. Gender
orientation means a way I identify myself as. It can be different from the biologically assigned
sex and the expected sexual attraction. If I am born as a biological female, then female is my
sex and if I identify myself as a lesbian or a bisexual then it is my gender orientation. As
opposed to Transgender which is a Gender in itself like a female or a male.
So, being a homosexual means, a person of one biological sex getting sexually attracted
towards a person with the same biological sex.

Perception towards homosexuality and LGBTQIA+ Community:

There are many debates and discussions around this topic. As we move towards a more gender
inclusive society it is becoming more important to openly talk about this topic. Having open
conversations and debates makes sure that every aspect of this topic is comprehensively
covered and opinions from diverse perspectives are taken into account. While there are various
cases and judgements in India which have decriminalised homosexuality, there is still a taboo
going around the topic. The people of India, do not, to a larger extent, seem to have accepted
the homosexuality and homosexual people. Through generations of discrimination against the
homosexual people, it is inherently embedded within the heart of the society that

1
TRS Clips Hindi, LGBT Full form explained easily – Sushant divgikar, YOUTUBE (June 28, 2023),
https://youtu.be/gNc8Rk9w6ns?si=isjWEsNrPNUo_zd_ / (last visited on Nov. 12, 2023, 05:00 PM).

Page 4 of 11
homosexuality is something ‘different’ or ‘unnatural’. Some people even find it difficult to talk
about these things in front of children as the children might get influenced by these things and
start practising the same. Some people do consider that these things are of foreign origin and
practising or accepting such things can pollute our culture.
While listening to a podcast of a trans person, I got to know that they are often reduced to their
gender identity and this causes immense stress to them. Whatever they do, whatever they work
for, whatever art they perform – is considered as an act done by a trans. It is looked from a
particular lens. Which is absolutely wrong. Reducing a person to just one aspect of their identity
can lead to serious harm to their overall personality as is evident from various cases. Need is
to accept them for who they are and consider them to be ‘one of us’ and not something
inherently different.
But as we are moving ahead in time, some sections of the society or a large number of people
do seem to have accepted and have become more inclusive in terms of gender orientations. The
famous feminist movement in its third wave, too, did include the problems faced by
LGBTQIA+ community within its scope and talked openly about LGBTQIA+ rights. NGOs
are being made to support and advocate for the said communities’ rights. Due to all this, it has
become a slight easier for people to come out and talk freely about their gender orientations.
People have started feeling a sense of comfort and safety in the society. Various laws, policies
which are being made in the favour of this socially oppressed community is actually ensuring,
not fully though, their safety and their rights being enforced. We off course need more
comprehensive policies and inclusive judgements but we cannot deny the fact that
developments in the field have taken place.
For the purpose of this research, I did interview a few people from different age groups asking
them about their opinion regarding homosexuality and same-sex marriage. Responses varied
across different age groups. Young people aged between 16-23 were comparatively positive
about the concept. They believed that choosing a partner and having sexual relationship with
someone should be a matter of choice and state should not intervene in that. Choosing a partner
comes under Right to life and privacy. It is our fundamental right to choose it and nobody
should question that. While the people from previous generations especially people above 35-
40 age group seemed to have a negative approach towards the same. There were obviously
some exceptions and in No sense, I am generalising this opinion. But they believed that it was
somehow ‘different’ and ‘unacceptable’ as it does not fit into the stereotypes made in the
society. When asked about their opinion about same-sex marriage there were mixed responses
from the respondents, some of them were of the opinion that right to marriage must come under
right to privacy while others believed that such unnatural activities should be prevented in order
to preserve our culture. When asked to some parents what would be their reaction if their own
child comes out as a homosexual, some parents were ready to accept the child for its identity
while some of them said they would send the child to a therapist or a psychologist.
Some people still think that homosexuality is a mental disorder which is declared totally wrong
clinically. Homosexuality is not a mental disorder. It is as natural and normal as heterosexuality
is. There is nothing wrong or different or unnatural in being a homosexual.

Page 5 of 11
Attitudes of people regarding homosexuality is indeed changing, but there is still a long way
to go. Such things are inherently rooted in our collected mindset as a society and it will
obviously require some time to get out of our minds. Efforts are being made in this regard and
it does, to a large extent, seem to have casted an impact.
A way forward can be open education starting from a very little age regarding the genders and
gender orientation is needed in order not to root the stigma in the minds of upcoming
generations.

Section 377 and Legal analysis of Homosexual Rights with related judgements:

Page 6 of 11
Section 377 of the Indian Penal Code 1860, reads as “Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal shall be punished”. This
does include the consensual sex between same-sex adults.
There are various judgements related to section 377 of IPC.
2
We shall look at the same individually now,
1. Naz Foundation vs. Govt. of NCT of Delhi (2009)
In this specific judgement the arguments made were that one cannot enjoy article 21
i.e., Right to life without dignity and privacy. Article 15 of Indian constitution which
prohibits discrimination on the grounds of sex does not only include biological sex but
also the sexual orientation of a person. It was also said that the psychological test should
be given more emphasis than the biological test. Leaving the amendment part to the
parliament the Delhi HC said that the part in section 377 which criminalises
homosexual acts should be declared unconstitutional.
Rightly so. this indicates the inclusive, gender neutral and unbiased approach of the
respective bench towards homosexuality. It allows individuals the freedom and privacy
which they are indeed entitled to. This landmark judgement given by Delhi HC stated
that section 377 violates article 14, 15 and 21. It also said that there is a difference
between public and private acts as well as consensual and non-consensual acts.
2. Suresh Kumar Kaushal v. Naz foundation case (2013)
In this specific judgement, Supreme court overturned the previous judgement by Delhi
High Court (2009) which has decriminalised homosexual consensual acts between
adults and Criminalised Homosexuality Once again. Supreme court stated that in the
span of 150 years, less than 200 persons had been prosecuted under the said section 377

2
Priya Jain, Section 377-Homosexuality in India-in Hindi, YOUTUBE (Sept. 12, 2018),
https://youtu.be/1GGsUFrcuQY?si=zrId8CNLSsKF9h4a /(last visited on Nov. 12, 2023, 04:21 PM).

Page 7 of 11
 of the Indian Penal Code and thus the ‘plight of sexual minorities’ cannot be used as an
argument. And the parliament is the correct authority to look into this matter. It was
also argued that one cannot extend the right to privacy to such an extent where one can
commit offences and right to privacy does not include homosexual acts.
3. NLSA V. Union of India 2014
The court declared transgenders as the official ‘Third Gender’ and affirmed the
fundamental rights guaranteed to them. Supreme court recognized multi-facet rights of
transgenders.
In the said judgement, loophole was detected in existing laws that the laws only mention
binary genders i.e., male and female thus discriminating against transgenders. The court
stated that Article 14 includes transgenders too along with the men and women.
Reiterating what Delhi HC said in Naz foundation Case in 2009, supreme court said
that Article 15 which prohibits discrimination on the grounds of sex includes sexual
orientation of a person along with the biological sex. The Honourable court said that
Article 19 (1) (a) protects Privacy, Gender identity and integrity and one can include
Section 377 indirectly into this argument. Referring to Article 21, the court, said that
Right to dignity includes right to choose gender identity and we should focus on giving
more emphasis on the present day needs rather than sticking to the retrospective norms.
It was due to this case, gender identity and self-identity got legal recognition.
4. Justice K.S. Puttaswamy v. Union of India (2017)
In this, Supreme court, by 9 judge bench, held that the Fundamental right to privacy is
intrinsic to life and liberty stated in Article 21. The right to privacy, according to this,
comes under Article 21 of the Constitution of India. This judgement overruled the M P
Sharma case and Kharak Singh case. This case was authored by Justice D.Y.
Chandrachud and he said that the mistake made in Suresh Kumar Kaushal should be
rectified. He said sexual orientation is an essential attribute of privacy and articles like
14, 15, 21 in the part three of Indian constitution protect this attribute. The idea of
miniscule minority was rejected by him.
5. Navtej Singh Johar V. Union of India (2018)
Homosexuality was decriminalised in this judgement. The position taken by supreme
court in Suresh Kumar Kaushal case 2013 that the LGBTQ community constitute a
minuscule minority, was dismissed. This judgement declared section 377 partially
unconstitutional. 5 judge bench was comprising of the then CJI Deepak Mishra, Justice
Indu Malhotra, Justice Rohinton Nariman, Justice A M Khanvilkar, Justice D Y
Chandrachud was constituted for this case. The bench said, referring to Article 14, that
it is not valid intelligible differentia and also is not a rational nexus to criminalise
consensual sex between two adults just because it is homosexual. The bench also stated
that the traditional acts which are based on an ambiguous subject like morality should
be given away. Further, referring to Article 15, the court said that, the approach taken
by Delhi HC in the case of Naz Foundation that Article 15 also includes sexual
orientation along with the biological sex is the most correct approach. And this reflects
our improved understanding. According to Article 19, the court said, we cannot define
human sexuality in narrow sense. This article includes open expression from a person
about his sexual identity. The court further noted that Right to life and liberty includes

Page 8 of 11
 privacy, dignity and autonomy. Though these can be curtailed by applying reasonable
restrictions, you cannot prevent someone from enjoying these right ny applying section
377.

As evident from this, the judgements got better and better with regards to the
homosexual rights.
The recent verdict regarding the same-sex marriage where supreme court said that it
has no say in the matter and the matter is to be referred to parliament regarding the same
is also to be noted.
Yogyakarta Principles:
Mentioning this becomes important as these principles recognise the freedom of sexual
orientation and gender identity as a part of Human Rights. They were created in 2006
at Yogyakarta, Indonesia by a specialised group of International Human Right experts.
Impact of decriminalization of Homosexuality:
It made it possible for the LGBTQIA+ People to be able to openly talk about their sexual
preferences. Police harassment and discrimination has been eliminated in their access to health
care. It has been associated with self-acceptance and psychological and emotional security.
This ensured that in future, more progressive laws will be there for LGBTQIA+ Community.

Conclusion:

Page 9 of 11
As evident from various judgements, the society is indeed getting more inclusive and
developed. The traditional norms are being given away by laws. People seem, to a large extent,
accept these laws.
Sociological perspective is also seem, to be changing and it is good for the growth of the
society.
Including every segment of the society in the main stream is the need of the hour for any
developing society in order to achieve the maximum growth. And the various laws and
judgements contribute to the same.
There is still a long way to go.

Annexures:

Page 10 of 11
Priya Jain, Section 377-Homosexuality in India-in Hindi, YOUTUBE (Sept. 12, 2018),
https://youtu.be/1GGsUFrcuQY?si=zrId8CNLSsKF9h4a /(last visited on Nov. 12, 2023, 04:21 PM).
TRS Clips Hindi, LGBT Full form explained easily – Sushant divgikar, YOUTUBE (June 28, 2023),
https://youtu.be/gNc8Rk9w6ns?si=isjWEsNrPNUo_zd_ / (last visited on Nov. 12, 2023, 05:00 PM).
Judgments:
1. Naz Foundation vs. Govt. of NCT of Delhi (2009)
2. Suresh Kumar Kaushal v. Naz foundation case (2013)
3. NLSA V. Union of India 2014
4. Justice K.S. Puttaswamy v. Union of India (2017)
5. Navtej Singh Johar V. Union of India (2018)

Reference books:

1. Sexuality studies – Srivastava

2. Issue of identity – oomen
3. Sexual orientation and gender identity – a new province of law for India – Tagore law.

Page 11 of 11