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Published: Fri, 02 Feb 2018
Homosexual Historical and religious background
Homosexual is a person erratically attracted to members of his or her own sex and with whom he usually (but not always) has perverted sexual contact. Homosexuality is sometimes known by other names including, sodomy, pederasty and crimes against nature.. the offence is termed lesbian love or lesbianism. It is generally practiced by women who suffer from mental degeneration and have antipathy towards the opposite sex….. It is because of the propagation of such views that the society has taken a stringent and rigid attitude against homosexuality. Since such views are prevalent against homosexuality itself, acceptance of the union of same sex couples will necessarily take a longer time. The first step towards understanding is to see homosexuality in an unbiased light and then to perceive interlinked arenas such as recognition of gay marriages or their rights to adopt and other connected rights.
Historical and religious background
Homosexual behaviour occurs in every culture, even in those where it is most heavily denied. In ancient Indian literature, homosexuality has been documented in various treatises by different authors. Hindu legends abound with references to homosexuality; and archaeologists have found prehistoric cave drawings depicting homosexual acts. According to the Hindu sage Vatsayana, author of the renowned treatise on love, the Kamasutra, homosexual practice is allowed by the holy writ (Dharmasutras) with just a few exceptions. Indeed, the Kamasutra devotes an entire chapter to Auparistaka — homosexual intercourse. The reference in the Ramayana to Sri Rama as purusamohana Rupaya — so handsome as to be pleasing even to men — indirectly suggests that homosexuality would have been considered, at least in certain quarters, a legitimate behaviour. In the popular tradition of Hinduism, sexual prowess is considered helpful in unleashing spiritual energy to attain liberation. Both Siva and Krishna are said to have engaged in homosexual activities.
Although these practices are referred to in the traditional Hindu literature and religious mythology, the general attitude towards homosexuality has tended to be disapproval. As editor of the journal Young India, Mahatma Gandhi wrote in 1929 about the “unnatural vice” in boys’ school.
Male homosexuality in Muslim culture existed during the Mughal period in India. Under the Muslim rulers homosexuality entered court life. In Islamic Sufi literature homosexual eroticism was used as a metaphorical expression of the spiritual relationship between God and man, and much Persian poetry and fiction used homosexual relationships as examples of moral love. Although the Quran and early religious writings display mildly negative attitudes towards homosexuality, Muslim cultures seemed to treat homosexuality with indifference, if not admiration.
As for the vast majority of the Christians in India, the very word “homosexuality” seems to arouse more revulsion than almost any other word. Largely based on the commonly accepted interpretation of biblical passages such as Genesis 19:1-14 and Romans 1:27, these reactions are often accompanied by ignorance. Nevertheless, it should be noted that the attitude of some Christians towards this area of sexuality is changing from blanket condemnation of all such actions to genuinely sympathetic concern for persons who find themselves in very difficult circumstances. For example. J. Russell Chandran concludes his brief discussion of homosexuality in a recent book with these words: “Instead of adopting a judgmentary attitude towards homosexuals, we need sympathetic understanding of the persons who are known to be homosexuals
Decriminalisation of homosexuality
Section 377 of the Indian Penal Code reads: Of 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 imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation: penetration is sufficient to constitute carnal intercourse necessary of the offence prescribed in the section.
The British left us redundant and ridiculous piece of legislation 145 years ago. Then it was perceived that a homosexual person had only ‘anal’ intercourse and this propagated the narrow-minded view that sodomy and homosexuality was one and the same. In recent times however, Britain has done away with this legislation, though we in our Country continue to hold fast onto such obsolete and dangerous perceptions. The consequence being that homosexuality is criminalized solely due to the manner of the intercourse. This indicates that no thought has been given to the emotional attachment, affection and bond between two people though they might be of the same sex.
The Section poses before us certain interesting questions like what is ‘natural’ and what the ‘order of nature’ is all about? Section 377 does not define either of the above terms and has left it to the discretion of the courts, leading to a lot of controversy. Further, this section does not differentiate between consensual and coercive sex.
Naz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001
This case concerned a writ petition (a public interest action taken before the court) brought by
an Indian NGO working with HIV/AIDS sufferers which argued that Section 377 of the Indian Penal Code was unconstitutional. Section 377 entitled “Of Unnatural Offences” has effectively been interpreted as criminalising consensual sexual acts between persons of the same sex. Section 377 states:
“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 term which may extend to ten years, and shall also be liable to fine.”
The Naz Foundation and others submitted that this interpretation of Section 377 violated the
fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. The Foundation brought the action in the public interest on the grounds that it’s work on combating the spread of HIV/AIDS was being hampered by discrimination against the gay community. This discrimination, the petitioners submitted, resulted in the denial of fundamental human rights, abuse, harassment and assault by public authorities, thus driving the gay community underground and subjecting them to greater vulnerability in violation of their fundamental rights.
Legal Arguments put forth by the Petitioner
The petitioner, the Naz Foundation, submitted that the harassment and discrimination of the
gay and transgender community in India resulting from the continued existence of Section 377 of the Indian Penal Code [IPC] affected the rights of that community guaranteed under the Constitution, including the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health.
They argued that the Constitution protects the right to privacy (which is not expressly
mentioned) under the right to life and liberty enshrined in Article 21. Furthermore, they
submitted that the right to non-discrimination on the grounds of sex in Article 15 should not be read restrictively but should include ‘sexual orientation’. They also contended that the
criminalisation of homosexual activity by Section 377 discriminated on the grounds of sexual
orientation and is therefore contrary to the Constitutional guarantee to non-discrimination
under Article 15.
Finally, the petitioner put forward that courts in other jurisdictions have struck down
comparable provisions relating to sexual orientation on the grounds that they violate the rights to privacy, dignity and equality.
Legal Arguments put forth by the Respondents
Two Government departments responded to the petition, however, as stated by the High Court, they presented ‘completely contradictory affidavits’ (submissions).
Ministry of Home Affairs (MHA)
The MHA argued in favour of the retention of Section 377 on several grounds. First, that it
provided for the prosecution of individuals for the sexual abuse of children. Second, that it filled a gap in the rape laws. Third, that if removed it would provide for ‘flood gates of delinquent behaviour’ which would not be in the public interest. Finally MHA submitted, that Indian society does not morally condone such behaviour and law should reflect societal values such as these.
On behalf of MHA, the Additional Solicitor General submitted, in response to claims of a
right to privacy, that such a right is not absolute and can be restricted where there is a
compelling state interest in doing so, such as public decency and morality. Furthermore, he
argued that Section 377 does not discriminate on the grounds of sex because it is gender
National Aids Control Organisation (NACO) and the Ministry of Health and Family Welfare
NACO responded on behalf of the Ministry of Health and presented evidence in support of the petitioner’s submission that the continued existence of Section 377 is counter-productive to the efforts of HIV/AIDS prevention and treatment. NACO argued for the removal of the section stating that it makes a large number of people in high risk categories in relation to HIV/AIDS reluctant to come forward due to a fear of law enforcement agencies, and that in driving homosexuality underground it increases risky behaviour such as unprotected sex.
‘Voices against Section 377 IPC’
A coalition of 12 NGOs submitted evidence also in support of the petitioner’s arguments which demonstrate the high number of violations of human rights suffered by the LGBT community inIndia as a consequence of Section 377.
The High Court (Court) firstly reiterated the test for any law which interferes in personal
liberty, as set out in Maneka Gandhi v. Union of India  : that (i) there must be a
procedure; (ii) that procedure must be tested against one or more of the fundamental rights
conferred under Article 19 which are applicable; and (iii) it is also susceptible to be tested
against Article 14, and must be right, just, fair and not arbitrary.
Right to Privacy
The Court noted that the Indian Constitution does not contain an explicit provision in relation to the right to privacy, however the Supreme Court has interpreted such a right on the basis of
Article 19 protecting freedom of expression and movement, and Article 21 protecting the right to life and liberty.
The Court made extensive reference to United States jurisprudence on the right to privacy as
read into the Constitution, including Roe v. Wade  and Planned Parenthood of
South-eastern Pa v. Casey  .It then went on to consider the development of
this right in India including the case of Kharak Singh v. The State of U.P.  , which traced the right to privacy in India to the right to ‘life’ in Article 21 of the Constitution.
In addition, the Court referred to specific rights of persons of different sexual orientation in this respect by reference to the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, which the Court noted asserts the rights to equal enjoyment of rights of all persons regardless of their sexual orientation.
Taking stock of these provisions, the Court concluded that Section 377 denies the dignity of such individuals, criminalises their identity and violates their right to privacy which is protected within the ambit of Article 21 of the Constitution.
In making this finding the Court dismissed the arguments of the MHA that the decriminalisation of sodomy will lead to the increase of HIV/AIDS on the basis that there was no medical evidence to support this contention. The Court also noted that this claim contradicted the arguments made by NACO and the Ministry of Health and Family Welfare.
With respect to the public morality arguments put forward by the respondents the Court, citing the European Court of Human Rights jurisprudence of Dudgeon v. The United Kingdom  , and Norris v. Republic of Ireland  , stated that mere public disapproval or popular morality is not a sufficient basis for placing such restrictions on the enjoyment of fundamental rights. The Court asserted that the only morality which matters is Constitutional morality.
The Court determined that the Constitution of India protects and promotes diversity and
ensures an egalitarian society where freedom is no longer a privilege. The Court determined
that criminalisation of homosexuality runs counter to that Constitutional morality.
Article 14 and Equality
The Court reiterated the test set by Article 14 that any distinction or classification be based on
an intelligible differentia which has a rational relation to the objective sought and is not unfair or unjust. Section 377, the Court said, does not distinguish between public and private acts, or between consensual and non-consensual acts thus does not take into account relevant factors such as age, consent and the nature of the act or absence of harm. The Court stated that such criminalisation in the absence of evidence of harm seemed arbitrary and unreasonable.
In considering the legal principles imposed by Article 14 of the Constitution the Court took into account the Declaration of Principles of Equality “as current international understanding of Principles on Equality”. Drawing on Principles 1 (right to equality), 2 (equal treatment) and (definition of discrimination) the Court emphasised the need to include sexual orientation
among protected grounds of discrimination and build indirect discrimination and harassment
into any consideration of the right to equality.
Thus, dealing with the argument that Section 377 was neutral, as submitted by the MHA, the
Court stated that although the provision on its face is neutral and targets acts rather than
persons, in its operation it unfairly targets a particular community, having the result that all gay men are considered criminal. This led the Court to conclude that Section 377 discriminated against a particular community in violation of Article 14 of the Constitution.
Article 15 – Sex or Gender?
Article 15 was described by the Court as a particular application of the general right to equality under Article 14. The Court considered the petitioner’s argument that the reference to ‘sex’ in Article 15 should be interpreted as including sexual orientation on the basis that discrimination on the grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred to the Human Rights Committee’s decision in Toonen v. Australia  in which the Tasmanian Criminal Code which criminalised sexual acts between men, was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation.
On that basis the Court stated:
“We hold that sexual orientation is a ground analogous to sex and that discrimination on the
basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”
The Court consequently found that Section 377 was unconstitutional on the basis of
Article 15 of the Constitution. In its conclusion, the Court referred to the belief in inclusiveness which is ingrained in the Indian Constitution and explained that discrimination was:
“[T]he antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual”.
In the light of its findings on the infringement of Articles 21, 14 and 15, the Court found it
unnecessary to deal with the issue of violation of Article 19 of the Constitution.
In sum, the Court declared that Section 377 of the Indian Penal Code, insofar as it
criminalises consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of
The results of this increased activity in decriminalising homosexuality are evident in India today. Popular Bollywood films have, for the first time, begun to include gay storylines. Queer film festivals have thrived. Media coverage of LGBT issues has become increasingly favourable and led to growing public debate and discussion. And every year, thousands march in gay pride parades in cities such as New Delhi and Kolkata. These efforts made it more likely that a strategy against Section 377 that included LGBT groups and drew attention to discrimination against them would succeed. Because the Naz Foundation and Voices against 377’s case focused on the adult and consensual aspects of the law, as well as the health arguments, they were able to include other movements not strictly related to LGBT fights in their cause, bringing together marginalised groups to take down a discriminatory law without leaving sections of the population, such as children, unprotected. Importantly, the petition did not focus on issues of “morality” or what constitutes “natural sex”–instead, by bringing consent to the fore, the petitioners highlighted the discrepancies between Section 377 and the guarantees in the Indian Constitution to respect privacy, liberty and non- discrimination. The High Court’s verdict recognised this contradiction, declaring that “the inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone…Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.
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