This article is written by Shashank Sahay
Introduction
the paper is to evaluate the constitutional right of equality before the law . Further this paper takes a critical look at Article 15 of the constitution, which prohibits discrimination on the grounds of religion, race, caste, sex or place of birth because major point to be considered is that Homosexuals are generally born genetically and not made or created in society, therefore they are supposed to rightfully be safeguarded under article 15 of the Indian constitution. At this disjunctive threshold, the paper would aim to analyze the right to protection of life and liberty through the eyes of Indian law which states EQUALITY for all with no discrimination under any circumstance. (Image taken from here)
History of Homosexuality
Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility[1].The description of homosexual acts in the Kama sutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships.[2]
Legal status
Homosexual relations are legally still a crime in India under an old British era statute dating from 1860 called Section 377 of the Indian Penal Code which criminalizes 'carnal intercourse against the order of nature.' The vague nature of the legislation has resulted in it being used against a wide range sexual behavior like oral sex (heterosexual and homosexual), sodomy, bestiality, etc. The punishment ranges from ten years to lifelong imprisonment.
The relevant section states:
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| Brinda Karat Communist Party (Marxist) member |
None of the major Indian political parties have endorsed gay rights concerns into their official party manifesto or platform. However, one of the Politburo members of the Communist Party of India (Marxist), Brinda Karat, did write an open letter in 2003 to the then Minister of Law and Justice, Arun Jaitley, demanding a repeal of section 377, IPC[4].
Enforcement of the law and Rights violations
Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights Watch argue that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men, and other groups at risk of the disease.The group documents arrests in Lucknow of 4 men in 2006 and another 4 in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities in India.[5]
Demands for law reform
In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, a sexual health NGO called the Naz Foundation had no locus standi (In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case) in the matter[6]. Since nobody has been prosecuted in the recent past under this section it would perhaps seem unlikely that the section will be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. However, this does not rule out the possibility of some other High Court ruling on this section or even the Supreme Court in a "Public Interest Litigation" (PIL). Naz Foundation won its appeal in the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider on its merits. The Delhi High Court has been reconsidering the petition since October 2006. There has been a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices against 377'. Voices have supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.
In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality.
The law continues to be on the books. It is used by some to threaten and blackmail homosexuals. It has been used in the past to harass people involved in condom distribution amongst homosexuals. It is also used by the police when registering complaints lodged by the parents of the parties involved. [7]For instance, a lesbian couple that ran away together in Uttar Pradesh, India were arrested and handed back to their parents, in spite of both parties being of legal age by applying this section as the legal basis for their arrest.
On July 29th, 2008, Delhi held its first ever gay pride march, along with similar gatherings in Bangalore and Calcutta. But recently on 3rd July 2009, Gay sex won legal sanction in India after the Delhi High Court on Thursday passed a landmark ruling that was hailed by gay rights activists but denounced by religious leaders as an assault on God.[8]
In a judgment that followed eight years of judicial battle, the Delhi High Court read down Section 377 of the Indian Penal Code (IPC), quoting Jawaharlal Nehru to emphasise that the Constitution guaranteed gay rights equal to what other citizens enjoy.
In a courtroom packed with around 100 people, Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, Section 377 would violate Article 21 of the Constitution, which states that every citizen has equal opportunity of life and is equal before law.[9]
"Equality and inclusiveness are the tenets of the Constitution," they quoted India's first Prime Minister as saying. Calling any discrimination anti-thesis of the right to equality, the judges added, "Equality should not be read literally, but in true spirit."
In a judgment of over 100 pages, the judges said that Section 377 should be amended and any sex between consenting adults should be legalized. They underlined, however, that this would not apply to those under 18 years.
Recognition of same-sex couples
In "Same-Sex Love in India: author Ruth Vinita analyzes dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious, and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid.[11] No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.
Decriminalizing homosexuality in India
GENERAL ISSUES
A number of propositions have been advanced in an attempt to legitimize the retention of these laws but these arguments are unpersuasive and many are without rational foundation. On the other hand, there are compelling reasons to repeal the laws, many of which centre on the adequate provision of health services to the group most affected by AIDS and other sexually transmissible diseases.
The arguments opposing and supporting decriminalization centre around three main areas:
- Its effect on the family and society
- Concern that there will be a possible increase in the supposedly 'negative' aspects of homosexuality such as STDs and molestation of children
- Infrequent enforcement of these laws
Some of these points were also raised by the Tasmanian Government in its defense of its laws, specifically, the public health and infrequent enforcement issues:-
1. The Effect of Decriminalization on Family and the Society Opponents of reform argue that decriminalization will result in an increase in the frequency of homosexuality and a corresponding decrease in the number of marriages entered into and that this, in turn, will undermine the whole institution of the family. This is clearly absurd. Research conducted in jurisdictions which have decriminalized consensual homosexual conduct does not support conclusions that decriminalization will lead to an increase in homosexuality. There is substantial agreement among scientific researchers that sexual orientation is due to genetic factors, and is determined by age five or six. Therefore, it is unlikely that an increase in the incidence of homosexuality will occur as a consequence of decriminalization.
Nor will reform result in a significant drop in marriage rates and levels of procreation. Homosexuals can and do form families that, apart from the gender of the partners, do not differ substantially from heterosexual families. Many homosexuals wish to have children and some in fact do so, through mechanisms such as adoption and artificial insemination, although they may find these more difficult to obtain than heterosexuals, as they necessarily involve application as a single person.
Rather, decriminalization may promote the institution of family. The knowledge that society and the law condemn their personal relationships can be very difficult for young gay men who are coming to terms with their sexuality. One consequence of the anti-sodomy laws is that many feel compelled to conceal this aspect of their lives from their family and friends, sometimes marrying for appearance's sake. However, such marriages are frequently unstable and often fail, resulting in detriment for the parties involved, including any children of the marriage.
Decriminalization may be a step towards removing some of the stigma associated with homosexuality and may have positive repercussions on relationships between homosexuals and their families. It may substantially promote acceptance of homosexuals by their families, which will do much to strengthen family ties.
Empirical research also indicates that decriminalization results in more self-acceptance and psychological and emotional security among homosexual men. A common observation in many instances is that homosexuals living in jurisdictions which criminalized homosexuality tended to have lower self-esteem and higher levels of psychological maladjustment, depression and suicide than those living in jurisdictions in which homosexual acts were not regarded as criminal offences. Criminalization reinforces negative societal attitudes regarding homosexuality. This, in turn, results in greater discrimination and thus impacts adversely on the self-esteem of many homosexuals, which often leads to deception and friction within families.
2. Increases in the Incidence of Homosexuality and its Perceived Negative Aspects
Those opposing decriminalization assert that it will lead to an increase in homosexual activity, both public and private, as well as more child molestation, public solicitation and sexually transmissible diseases. Decriminalization has not resulted in an increase in child molestation in those jurisdictions which have implemented reform.
In addition, research from Australia and the United States indicates that 90% of child molesters are in fact heterosexual. There is nothing to suggest that homosexual men are more likely to engage in sexual relations with minors than are heterosexuals. The claim that decriminalization will result in an increase in homosexuality is unsubstantiated. It is widely accepted by international researchers that homosexuality is genetically determined. If this is in fact correct, decriminalization will do nothing to alter the incidence of homosexuality.
Concerns regarding possible increases in public solicitation and sexually transmissible diseases (STDs) are similarly unfounded. In fact, the South Australian study found that decriminalization in fact decreased the incidence of public solicitation and STDs. Admittedly, this research was conducted prior to the advent of AIDS and therefore does not take account of HIV infection. However, there is a widespread view that the criminal status of homosexual acts hinders, rather than assists, the fight against AIDS. This proposition is based on a number of reasons:
Firstly, in its report, the National HIV/AIDS Strategy suggested that -
"Laws regulating and/or penalizing homosexual activity impede public health programs promoting safer sex to prevent HIV transmission by driving underground many people at risk of infection."
The thrust of this argument is that the criminal status of homosexual acts deters gay men from going to doctors, hospitals and other health services for testing, advice and treatment, as they believe they may be exposing themselves to the risk of prosecution if they do so. As the majority of people who are HIV positive or have AIDS are homosexual or bisexual men, this reluctance to come forward as a result of the criminal sanctions constitute a substantial impediment to health education and health service providers in their work to prevent the spread of HIV/AIDS.
Research conducted by the Queensland AIDS Council before decriminalization in the State indicates that a large number of gay men do not present themselves for testing and/or treatment until the onset of visible manifestations of HIV infection. Of course, by the time that these AIDS-Related Complexes appear, the virus is too far advanced to treat with any effectiveness. At this stage it is also probable that these men may have transmitted the virus to their sexual partners, especially if they are unaware of how the virus is transmitted and associated preventive measures.
Similar observations have been noted in Western Australia (prior to decriminalization) and Tasmania. In Western Australia men who presented themselves for testing often furnished false names or only a first name. There was considerable concern regarding the confidentiality of patient records and the possibility that police would make use of them to initiate or bolster prosecutions under the anti-sodomy laws.
The key to the prevention of HIV/AIDS is not legislation criminalizing homosexuality, but education of the groups which are likely to be the most affected. Effective strategies for AIDS prevention and minimal transmission can only occur if there is a free flow of information between health providers and their target groups. As long as the anti-sodomy laws remain on the books, this will not be possible. They do not serve any useful purpose in the prevention of STDs , most gay men will continue to have sexual relations. Rather, legislation only hampers access to health education and services the success of educational and prevention programmes in jurisdictions which have decriminalized homosexual sex are testimony to this.
3. Infrequent Enforcement of the Laws
Another argument against the repeal of these laws is that there is no need to, since they are so rarely enforced. However, it is submitted that this is not a valid justification for their retention. Admittedly, prosecutions are infrequent but they do occur, and as long as the laws remain in existence, there will always be a possibility of prosecution. At times, this possibility becomes reality in India homosexual men were charged for having sex as recently as 1988, a scant two years before decriminalization. Prosecutions are also arbitrary, with no discernible rationale or pattern behind them.
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| Still from DOSTANA |
Private Acts although it is true that most police attention is drawn towards public displays of homosexuality, and prosecutions for private homosexual acts are fairly rare, they nevertheless do occur.
These laws are also harmful in that they are a waste of resources, and often encourage entrapment by police. It is very difficult to regulate sexual acts in private, and while the majority of police officers do not attempt to, there are some who do. Police resources are already limited why waste them on 'victimless' crimes such as consensual homosexual sex when there are so many serious crimes such as murder, rape and robbery which needs attention. (Image taken from here)
In relation to the arrests which do occur, one observation is that defendants, faced with public exposure and more expense have preferred to plead guilty after committal. While it is true that the criminal penalties that are actually imposed in these cases are light, such as good behavior bonds and relatively small fines, they may nevertheless have "devastating personal, social and economic effects for those arrested." It is probably very difficult to conceal a criminal charge from family members and possibly friends, and the offender will no doubt have a criminal record, which may hinder future employment.
Consensual homosexual sex in private should not be the law's business. Retention of legislation criminalizing it is merely an excuse for the persecution of a minority group which is feared and misunderstood by some members of society. Public Acts Ideally, anti-sodomy laws should be completely repealed, and homosexuals and heterosexuals alike should be covered by existing laws on public indecency. However, even if this occurs, there will inevitably be problems of selective enforcement and differential treatment of homosexuals and heterosexuals under the public indecency provisions.
For example, if police encounter a man and a woman engaging in sexual intercourse in a car parked in a secluded area, it is unlikely that they would be charged. They would probably be cautioned but the matter is not likely to be carried further. However, if the police were to come upon two men in the same circumstances, there would no doubt be arrests and the incident would attract considerable attention.
Police are often unsympathetic in their treatment of homosexuals, despite claims to the contrary. Some of this may be unconscious, but at other times police act intentionally, actively seeking to make arrests.
If decriminalization occurs, homosexuals will be governed by the same provisions outlawing public indecency as heterosexuals and therefore should be treated in the same way by the police. However, it is nevertheless possible that entrapment will still occur, as there will inevitably be a small number of homophobic police officers who will persist in these undesirable practices, although the majority will probably welcome the change, as it will enable more time and resources to be spent on other matters. [12]
SECTION 377 IPC, 1860 is in violation of Article 14 of the Indian Constitution
Article 14 of the Indian constitution provides that, “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”
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| Neil Patrick Harris with partner |
Article 14 also focuses on the doctrine of intelligible differentia, according to which there should be clear nexus between the enacted provisions or act and its objective as for what purpose they have been enacted. The same makes it clear that law enacted by legislature must be clear and must be rational. The Supreme Court has held that a statute is void for vagueness if its prohibitions are not clearly defined. The rationale for this is that the provisions enacted should be clear so that persons affected know the true intention. [13] Further, the Supreme Court has held that where a law does not offer a clear construction and the persons applying it are in a boundless sea of uncertainties and the law prima facie takes away a guaranteed freedom, the law must be held to offend the constitution. [14] Moreover, section 377, it punishes “carnal intercourse against the order of nature”. However, the expression is not defined. Nor does section 377 provide any indication as to what acts are comes under the ambit of it. Courts have interpreted section 377 to cover not only to non-penile-vaginal sex but also to include imitative sex and acts that amount to sexual perversity .the inconsistency and irregularities has been followed over a years as to what section 377 contains and it is not par with the present globalised world and in that for developing country like India as every citizen want to maintain its liberty and wants to be an individual first.
Therefore, section 377 is vague and does not clearly define its prohibitions. Such vagueness leads to arbitrary application of section 377 against sexuality minorities. Hence, section 377 should be held void for its vagueness and attendant arbitrariness. Further, section 377 creates an arbitrary and unreasonable classification between penile-vaginal and penile-non-vaginal sexual acts in the name of procreative sex and non-procreative sex and hence violative of article 14’s guarantee of equal protection before and under the law.
By its very nature, sexual acts engage in by gay men, being penile-non-vaginal, are non-procreative. Therefore, section 377 targets predominantly sexual acts engaged in by homosexuals. In so doing, it targets a group of persons, mainly homosexual men, based on their sexual preferences which are necessarily of a non-procreative nature. At this point of time in the fastest world in era of technology it is very important to note that even gay couple have procreation with the IVF technology which is rampant in India also.
The purpose of the article 14’s equal protection clause is to offer redress to vulnerable groups assailed by discriminatory practices. Section 377’s prohibition of non-procreative sexual acts criminalizes predominantly homosexual sexual relations is propelled by a prejudicial and irrational notion of sex. It thus violates article 14 because it disproportionately affects gay men.
SECTION 377 IPC, 1860 is in violation of Article 15 of the Constitution of India
Article 15(1) of the Indian constitution provides that, “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”
the expression “sex” is fluid and is not a static concept. It cannot be restricted to only the biological make and female sex. It is not an essential condition that the law expressly makes the prohibited male and female sex. It is not an essential condition that the law expressly makes the prohibited grounds for the basis of classification. As held by Supreme Court, “The courts are prohibited ground for the basis of classification. As held by Supreme Court, “The court’s are always had to interpret any law by the way of “schematic and teleological” method of always had to interpretation. All it means is that judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design of purpose which lies behind it.”[15]
Hence, in present scenario the term “sex” has wider meaning and it includes sexual orientation as well, which includes homosexual people . the prohibition of discrimination on the ground of sex is intended to prohibit the attachment of standard behavioral pattern to gender. The purpose underlying the fundamental right against sex discrimination is to prevent behavior that treats people differently for reason of not being in conformity with generalizations concerning normal gender roles.
In the present case, in section 377 criminalizes the acts of homosexual people. Though facially neutral, the primary object and the direct and inevitable effect is the prohibition of sexual acts between homosexual based on their sexual orientation. It is an established position of the law that if the effect of a state action is to infringe a fundamental right and that effect is brought about by a distinction based on a prohibited ground (e.g. Sex, race, etc);it would constitute discrimination on the prohibited ground, however laudable the object of the state action may be.[16]
In the present case, the effect of the section 377 is that I disproportionately impacts homosexuals on the basis of their sexual orientation. This was clearly foreseen and intended by the legislature to so impact. Therefore, section 377 constitutes discrimination on the ground of sexual orientation and therefore on the ground of sex under article 15, despite being couched in facially neutral language. Hence, the said section needs to be held ultra vires as it violated article15 of the constitution of India.
SECTION 377 IPC, violates the article 21 of the constitution of India
Article 21, Indian constitution conforms on every person the fundamental right to life and personal liberty which has became an inexhaustible source for any other lives[17]. These rights are as much available to citizen as to a foreigner[18]. And this article has been given paramount position by the honorable Supreme Court.
Conclusion
Decriminalization alone is not a panacea to liberate the community rather the attitude toward them should change through the entire gamut of laws. Further, legal reform should be complimented with societal acceptance but legal reform could not have waited for universal acceptance since this law posed a threat to the very existence of an entire community. By decriminalizing adult consensual sexual relationship in the public sphere it is appealing to the urban middle and upper middle class homosexuals. However the thousands of homosexuals who are harassed for public display of affection because there may not be the socio-economic conditions of private space may be targeted still. This is not to promote public display of gay love, but to acknowledge an economic reality in India. On the other hand, the judgment is gender neutral and gender silent, does not mention lesbian rights at all. One of the reasons obviously is because the provision of Section 377 itself is extremely male-centric, the public health argument taken also targets MSMs. It is unfortunate that the judgment does not make any reference to prostitutes and they being subjected to harassment, criminalization and also being vulnerable to HIV/AIDS.
Quoting from the words of Rukmini Sen “A lot of allied changes need to happen in other laws in the country. This is just a beginning, a step in the right direction, but with some limitations”.[19]
This article is written by Shashank Sahay
Shashank Sahay is pursuing BA.LLB from School of Law, Kiit University, Bhubaneswar and is currently in 2nd Semester. So far he has managed to write research paper and articles on issues ranging from homosexuality, AFSPA (Armed Forces Special Millitary Act), JIHAD to status of marital rape in India. Apart from writing research papers, his interests include MUNning (model united nations) and playing Football.
[1] Article by Rev. Robert J. Buchanan, rockhawk.com/homosexuals_in_history.htm, 18th October 2011, Tuesday 12 10 pm
[2] Article by Rev. Robert J. Buchanan, rockhawk.com/homosexuals_in_history.htm, 18th October 2011, Tuesday 12 10 pm
[3] Indian Penal Code (45 of 1860, Bare Act, Professional Book Publishers
[5] PUCL journal, September Edition, 2010
[6] www.nazindia.org/judgement_377.pdf, , Article- Homosexuality and its Rights ,20th October 2011, 9 30 pm
[7]wikiislam.net/wiki/Islam_and_Homosexuality,Article-Homosexuality,17thOctober 2011,Monday 11 am
[8] Refer to articles.timesofindia.indiatimes.com, 18th October 2011, Tuesday,11 40 am
[9] http://ibnlive.in.com/news/delhi-high-court-legalises-consensual-gay-sex/96148-3.html, 14th October, 2 30 pm
[10] www.sikhnet.com/news/akal-takht-says-no-gay-relationships, 19th October 2011, 9 30 pm
[11] Same – sex love in India, Author Ruth Vanita, summary
[12] VICTIMLESS CRIMES - DECRIMINALISATION OF HOMOSEXUAL SEXUAL ACTIVITY
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Gay and lesbian legal rights (Other articles)
Gays - legal status laws - Tasmania Homosexuality law and legislation - Tasmania |
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[14] K.A. Abbas v. union of India, Air 1971 SC481
[15] Fuzlunbi v. k. Khader Vali, AIR 1980 SC 1730.
[16] State of Bombay v. Bombay Education Society, [1955] SCR 568
[17] Bhagavati, J. in Maneka Ganghi v. Union of Idia, AIR 1978 SC 597. Pp. 620
[18] National Human Right Commission v. State of Arunachal Pradesh, (1996) I SCC 742.
[19] Decriminalizing homosexuality in India - A step forward….but by By Rukmini Sen. Columnist, Sanhati September 21, 2009
nice, simple and lucid.....
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