In the present case, the Bombay High Court has correctly settled the proposition that an extramarital consensual gay relationship is not a criminal offence; just like how it is no more a criminal offence in case of a heterosexual spouses. However, such a relationship comes under the purview of “adultery” as a ground for divorce (civil wrong). The Bombay HC judgment signifies the social acceptance of homosexuality as human nature, and it is a step closer to recognising gender equality and different sexual orientations.
The Writ Petition challenged Section 354A of IPC — Sexual Harassment and Punishment for Sexual Harassment — to the extent that it had been interpreted to deny protection to a complainant who does not conform to the stereotypical and binary notion of “woman”, based on sex assigned at birth, resulting in violation of fundamental rights under Articles 14, 15 and 21 of the Constitution of India, and being contrary to the decision in National Legal Services Authority v. Union of India.
The fundamental right to self-identified gender under Articles 14, 15, 19 and 21 of the Constitution stands violated blatantly. With only four MPs addressing the debate, the Bill passed by the Lok Sabha is a washout. The Rajya Sabha must now resist, especially since it has already passed ‘The Rights of Transgender Persons Bill, 2014’ in April 2015.
Now that the Section 377, IPC has been read down, the conservative communal elements are targeting sexual minorities by resorting to cunning ways to reinforce regressive social morality over constitutional morality. The Navtej judgment might be a positive and much required step forward, however there are laws like the Beggary Acts of different States, Section 36A of Karnataka Police Act, 1963, which still has the potential to victimise trans-women, and Karnataka Dramatic Performances Act, 1964, which gives immense power to State machineries.