Homosexuality in India: Reviving the Debate of Section 377


The article is an analysis of Section 377 of the Indian Penal Code that deals with "unnatural offences" through the judgments of the Delhi High Court and subsequently the Supreme Court. It also takes a look at the subject of homosexuality and how it is and has been perceived in India and the international community.

Introduction

Homosexuality might still be a subject of taboo in India. However, it cannot be denied that it has increasingly come into focus post the sensational judgment of the Supreme Court of India on 11 December, 2013 that criminalized unnatural offences under Section 377 of The Indian Penal Code (IPC).

Homosexuality is a multi-dimensional phenomenon and has its fair share of supporters and opponents. However, what constitutes homosexuality is a matter of confusion with no set definition for the same. There is no agreement among the scientific community, religious groups or homosexual people themselves as to the definition of homosexuality.

In simple terms, homo means "same", thus homosexuality; in common parlance comes to mean attraction (sexual or romantic) towards members of the same sex.

In 19th century Europe when the term "homosexuality" was first used, it was used to describe "morbid sexual passion between members of the same sex." It was declared 'unnatural' by colonial laws because it was not aimed at conception.

Homosexuality in India

Contrary to popular belief that India is a conservative country, it might be astonishing for some to know that in the walls and gateways of pagodas (a Hindu or Buddhist temple, typically in the form of a many-tiered tower) of Eastern and Southern India such as Puri and Tanjore, erotic depictions can be found that portrays sexual intercourse between men-men, women-women and even man with beasts. Historians differ on what these art forms mean. But it can affirmatively be stated that these acts were not unheard of.

Thus, an overview of the images in certain temples of ancient India, sacred narratives and religious scriptures does suggest that homosexual activities, in some form, did exist in ancient India.

With the arrival of the British, the scenario underwent a complete shift. Based on Christian religious beliefs, Section 377 was incorporated in the IPC which provides that-
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 fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Section 377 of the IPC is based on traditional Judeo Christian moral and ethical standards, where sex is believed to serve only one purpose, i.e., procreation. Thus, any sexual activity that does not lead to procreation is considered to be 'against the order of nature'.

Judicial Trend in India with respect to Section 377


In India it was the AIDS Bhedbhav Virodhi Andolan in 1991 who first raised their voice against Section 377 as unconstitutional.

In 2001, Naz Foundation, (India) Trust, an activist group, filed a public interest litigation (PIL) in the Delhi High Court, seeking legalization of homosexual intercourse between consenting adults. The Petitioner argued that Section 377 infringed upon Articles 14, 15, 19 and 21 respectively of the Constitution of India.
The High Court stated that Naz Foundation had no locus standi, but later the Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and asked the Delhi High Court to reconsider the case.

Voices against 377, a Delhi-based coalition of LGBT, women's and human rights activists joined in this movement and extended their support whereupon the matter was considered by the Delhi High Court that ruled that Section 377 of the IPC, 1860 violated a number of fundamental rights, including the right to privacy and right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article 14), and prohibition of discrimination on grounds of sex (Article 15).

The High Court asserted on the term "inclusiveness" and held it to be "deeply ingrained in the Indian society and that there is a role of everyone in the Indian society." The Court further held that "discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual."

However, the Court ruled that the Section was valid as regards cases wherein there is no consent for the act concerned or it is a non-vaginal intercourse or the act involves a minor.

Although the judgment was pronounced by the Delhi High Court, it was considered valid throughout India because as per a ruling of the Supreme Court, if any High Court renders a decision on the constitutional validity of any law, the judgment is valid in the territory of India.

However, on 11 December 2013, in the case of Suresh Kumar Koushal v. Naz Foundation, the Supreme Court of India set aside the 2009 judgment given by the Delhi High Court and went on to recriminalize "sexual intercourse against the order of nature."

In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."

The Central Government has filed a review petition on 21 December 2013 as against this decision of the Supreme Court. In its review petition the Center said: "The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution."

On 2 February 2016, however, the Supreme Court agreed to reconsider its judgment, stating it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue. Currently, the matter is sub judice.

Reaction to the Supreme Court judgment

Many human rights groups have opined that, "The Supreme Court's ruling is a disappointing setback to human dignity and the basic rights to privacy and non-discrimination."

Even Amartya Sen and writer Vikram Seth have mentioned of this Section of being against humanity.
The Law Commission of India in its 172nd report, delivered in 2000 also recommended for the repeal of Section 377.

Many gay pride rallies are conducted by different cities in India to generate awareness and display support to the LGBT community.

The United Nations Human Rights Chief Navi Pillay voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it "a significant step backwards" for the country.

However, despite such encouraging gestures, on the other hand, homophobia is very much prevalent in the Indian society. This is mainly because of the fact that Indian society rarely discusses matters pertaining to sexuality openly, leave alone something on the likes of homosexuality.

Several organizations, including the Naz Foundation (India) Trust, the National AIDS Control Organisation Law Commission of India, Union Health Ministry, National Human Rights Commission of India, and the Planning Commission of India have made tremendous efforts in this regard.

Certain religious groups like Hindu Council UK and spiritual leaders like Shri Shri Ravi Shankar have also decried the Supreme Court's judgment and supported LGBT rights.

Internationally, the scenario is much advanced with many Western countries legalizing homosexuality.
The United Nations Human Rights Council had passed a resolution wherein the post of an independent expert on sexual orientation and gender identity have been created whose function is to study and report annually on the nature, the cause, and the extent of discrimination faced by lesbian, gay, bisexual and transgender (LGBT) persons around the world.

This reflects the tolerance of the international community towards the LGBTs which is still at a nascent stage in India.

Conclusion

We live in a free, democratic society as enshrined in our Preamble. Every individual has the right over his bodily autonomy to undertake actions as long as they are conducted in private and possesses no threat to the security of the nation. It is difficult to comprehend as to how consensual acts in a private atmosphere can threat the morals of the society.

In a dynamic society, law must be interpreted in a progressive manner to ensure fundamental rights are enjoyed by one and all. Article 15 prohibits discrimination on the basis of "sex." The word "sex" must be liberally interpreted to include within its ambit "sexual orientation" as well.

From the judgment of the Supreme Court, it seems that interpretation of "unnatural offences" have been done solely from the objective of procreation. Thus, anything that does not result in procreation is unnatural. Then the question arises- with respect to heterosexual acts of penile-vaginal intercourse, why is the use of contraceptives like condoms not banned? They obstruct the purpose of procreation. The heterosexual section of the society is not being questioned for non-procreative sexual activities whereas the homosexuals are.

Adult activities that are private and consensual do not require the intervention of the State. However, State must show interest in such acts committed with minors.

The debate of law and morality is never-ending and beyond the scope of this article. However, the pertinent question is- "Who decides what is moral or immoral?"

Should a section of the society's notions of morality, impinge on the fundamental rights of a class of minorities; more so when their actions are harmless and pose no threat to anyone whatsoever?
Democracy demands something more than the enforcement of the popular will. It requires a commitment, among other things, to our bill of rights, specifically to Part III of the Constitution.


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