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Published: Fri, 02 Feb 2018

Decriminalising Homosexuality In India

From the ancient times “sex” has been the central issue in the human relations. Interestingly sexuality holds a central place in Indian culture, with early Hindu texts and art heavily charged with sex. The best examples of this could be the carvings of Khajuraho temples and “Kamasutra”. The latter clearly refers to homosexuality in form of active/passive binary evidences. In the Greek city, States of Sparta and Thebes, homosexuality was closely limited to the military and in Athens, another city state, homosexuality and sport were intimately related. The same was in practise in Britain also. But in the 13th century the term “sodomites” became a common term to broadly refer to same-sex acts, prominently between men. But by the influence of Judeo-Christian values and belief it was made criminal. It is mentioned clearly in the Halsbury Laws of England as follows:

1281 Sodomy: The offence of sodomy can only be committed per annum. It may be committed by a man upon a woman even upon by his own wife.

The offence consists in penetration per annum and it can be committed by a man with a man, or with a woman, or with an animal. It is a misdemeanour for any male whether in public or private to take part in or attempts to procure the commission by any male of any act of gross indecency with another man. In criminal law it is known as “buggery”.

Many other nations followed the track. Since India was under the control of the English, it also couldn’t escape unaffected, British anti-sodomy laws were in effect in India and the influence of Judeo-Christian considerations took hold in India. The law relating to homosexuality in India was prevailing under the Indian Penal Code (IPC) framed by Lord Macualay as under:

Section 377-Unnatural Offences- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years; and shall also be liable to pay fine.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The typical phraseology which is used in the section is “carnal intercourse”, which according to the Oxford Dictionary means “any intercourse satisfying the sexual desire”. This must be against the order of the nature. Now the question arises: “What is the order of nature? What does it signify?” Sex according to the order of the nature is essentially procreative or per vaginum. Hence the acts punishable by this law could be like anal intercourse, oral sex, etc.

Further this section states “with any man, woman or animal”, it means this section punishes homosexuality and bestiality as a whole because according to this section these are unnatural forms of intercourse which is not procreative. At the same time this section punishes intercourse apart from per vaginum, among heterosexuals, even with your wife.

Now the most controversial term used in this section is “voluntarily”. This particular terms used in this section gives a sweeping scope over all type of non-procreative intercourse whether voluntarily or forcefully because consent for this section is immaterial. It means if you have done or performed any type of non-procreative intercourse with any body on this earth, you are liable under this section regardless your mental state.

The explanation appended to this section makes “penetration” essential to commit offence under this section. There can be no penetration between two girls, thus this section doesn’t punish “lesbian” relationship. By the explanation one thing is very clear that the involvement of men’s sex organ is necessary.

However, this offence in India is wider in its scope compared to Common Law, because in R v Jacobs, it was held that the act in child’s mouth does not constitute the offence but the same act in India was held to be punishable under Section 377 in Khanu v Emperor.

After this general reading we can conclude that this section punishes all types of “penetrative and non-penetrative sexual acts” regardless of the mental state of the parties. Hence this act clearly takes homosexuality under its dragnet. But these laws of sodomy or unnatural sex have constantly undergone the scanner of rights, constitutional validity, etc. These laws put forward certain fundamental questions relating to its utility and reasoning, like what is the purpose of law? Does the law relating to sodomy follow these footsteps? Is this section a violation of right to personal liberty and right to equality? Is this law against right to privacy?

The basic purpose of law is to regulate the society and lay down standard code of conduct and that to the very basic reason for having criminal law is preventive and deterrent in respect of acts which are very serious and alarming for the society at large. Criminal law being society’s strongest form of official censure and punishment, should be concerned only with major wrongs affecting central values and causing significant harms. It was clearly stated by the Wolfunden Committee Report of 1957 on homosexuals and prostitution – “the purpose of law is to preserve public order and decency, to protect the citizens from what is offensive and injurious and to provide sufficient safeguards against exploitation………..” But in my opinion the homosexual acts are neither offensive because this private act is not at all harmful for others, nor injurious as it has been proved that this phenomena is due to some biological factors like genetics and prenatal developments. It also depends upon the surrounding environment in which an individual has grown. The same was recommended by Wolfunden Committee report in 1957 that homosexuality can’t be regarded as a disease, because in many cases it is only the symptom and is compatible with full mental health in other respects. Hence one who is homosexual by nature, one who enjoys company of opposite sex, to prohibit is freedom will amount to an unnecessary attack on his personal liberty, which is given to everybody under right to life and personal liberty in Article 21 of our Constitution. These rights are of paramount importance and in no circumstances can be taken away. It is a kind of inalienable and inherent right of an individual. To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human acts and limits fundamental freedoms. The basis of all law is that it punishes acts that harm other people. But there is no evidence that homosexual acts between consenting adults harm anybody. Its one’s fundamental right to chose one’s own partner on bed and falls within the liberty without being punished as criminals.

In Lawrence v Texas, 2003, the US Supreme Court finally struck down the law relating to punishing two consenting adults for homosexuality in private. The liberty protected by the Constitution allows homosexuals the right to make choice of his or her partner. The Court further held that it is sufficient for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. This case overruled the case of Bowers Attorney General of Georgia v Hardwick, 1986, which upheld the validity of anti-sodomy laws in the US.

Article 21 of our Constitution includes right to privacy also in its sweep which was upheld by our Hon’ble SC in Kharak Singh v State of UP for the first time. SC held that right to privacy is an essential ingredient of right to personal liberty. In 2001 Naz Foundation has filed a petition in Delhi High Court that this law is against the right to privacy. The petition questioned the legislative intent as being arbitrary and out dated to challenge the effect of law as being discriminatory on the basis of sexual orientation. Hence it is also violation of Article 14 of our Constitution. The petition stated that “section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation. It can be criticised on the basis of moral ground but it is illegal to make homosexual acts between consenting adults an offence.” In Lawrence v Texas, the US Supreme Court clearly admitted this fact and held that when homosexual conduct made criminal by the law then this amounts to discrimination both in public and private spheres. The stigma this criminal statute imposes moreover is not trivial. Discrimination made by this criminal statute is not only between the homosexuals and the society at large but also between the group of homosexuals, i.e., law discriminates gay couples against lesbian couples. The “lesbians” are not punished within section 377 of the Indian Penal Code (IPC).

In India, it has a very serious public health dimension relating to HIV/AIDS prevention. Sujatha Rao, the Director General of the National AIDS Control Organisation (NACO), a Central Government agency, at a recently held international conference is reported to have said that “section 377 places a huge constraint on Government’s HIV/AIDS programme. If you criminalise any behaviour you increase the chances of it going underground.”

The essay from the “Five Stakes Study” by Verma and Associates reports that approximately 10% of unmarried rural youths had some MSM (men sex with men) contacts in the year 2002. Gay activist often cite the internationally figure of 5% MSM (men sex with men) in any given sexually active adult male population. This puts figures for the whole country at around 13 million, though the actual figure may be even higher. These evidences show that male same sex relations need immediate attention for stopping the rate of HIV epidemic.

At the same time I fail to understand the dichotomy of the State that on one hand the Government through National AIDS Control Organisation (NACO) and other state organisations, is encouraging a diverse sexual practices within a safe sex, HIV prevention framework and on the other hand it still contains the prohibition of homosexuality. In my opinion the State cannot demean the existence of homosexuals by making their private sexual conduct a crime. It is a promise of our Constitution that there is a realm f personal liberty which the Government may not interfere with, at the same time this act is very natural for homosexuals “by nature”. So how can law criminalise the act which is very natural? The function of law is to regulate but it cannot decide the lifestyle and the destiny of an individual.

Basically homosexuality is a private act and it is executed in a very confidential manner between two consenting adults. The reason behind this is very obvious, section 377 of the Indian Penal Code and social unacceptability. Because this law results into social stigma upon the homosexuals, in order to skip this act is being done in hiding, is clearly the abuse of law. It results in undermining the respect of law because there is a pattern of non-enforcement with respect to consenting adults acting in private. The State of Texas admitted in Lawrence v Texas that in 1994 as of the date it has not prosecuted anyone under homosexuality laws. Take for example the case of India, where percentage of homosexuals is around 5%. How many cases out of this figure are being disclosed in front of police or for that matter reaches the Court? Not even 0.1%! Hence this law is not serving the purpose for which it was made. And in case even if the sexual act is disclosed then too this law is being arbitrarily enforced and thus inviting the eminent threat of blackmailing.

We can, however, definitely introduce some changes either by adding or by omitting so as to make the law able to serve some practical utility and bring itself at par with rights of an individual. The law should be in the form so as to be able to fight with sexual exploitation and forceful intercourse with great vigour. But at the same time it should not punish two consenting adults acting in private. By omitting the word “voluntarily” from section 377 we can achieve our goal. The consent of parties should also be given a higher footage.

Various human rights organisations are against this law, for example, European Court of Human Rights did not follow the Bowers case. In 1998, the Constitutional Court of South Africa, one of the most respected international judicial institutions, unanimously invalidated provisions of several criminal laws, which made punishable homosexual conduct between consenting adult males in private as violative of the Equality Clause. The Hong Kong of Appeal, in September 2006, unanimously invalidated similar provisions in Hong Kong laws, which criminalise homosexual practices in private between consenting adults. It is worth recalling that Justice Michael Kilby one of the most distinguished serving judges of the High Court of Australia and Justice Edwin Cameron, a great anti-apartheid activist and now a serving Judge of the Supreme Court of Appeal in South Africa, have publicly acknowledged their “gay” status for many years. India must march in step with other democracies in removing legal restrictions on sexual orientation. With section 377 of the Indian Penal Code, which criminalise homosexuality, posing a threat to public health by impeding programmes for the prevention and control of HIV/AIDS, the issue has become urgent.

I, thereby conclude by mentioning that it is high time for us that we go on to decriminalise homosexuality between two consenting adults in private in our country because when we talk of criminal liability and its related conduct, the answer changes from era to era. The reason for this being that law has taken birth from the womb of the society and since society is always in a state of flux, then how can law and the legal system remain unaffected?

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