Legalizing Gay Sex: Natural way to deal with Unnatural Offences

Aman Choudhary

Abstract

The preamble of the Constitution lays down that, all the people of India have resolved to constitute India as Sovereign, Socialist, Secular, Democratic and Republic Country. Also, we must secure to all citizens Justice, Liberty, Equality and promote Fraternity, Unity and Integrity of the Nation. In doing all this we must assure the dignity of the individual. Therefore it can be rightly perceived that the people belonging to the LGBT community also exercise such rights and are not to be discriminated. It is condignly appropriated by the Hon’ble Supreme Court of India in the landmark case of Navtej Singh Johar vs. Union of India[1] where it was held that Gay sex is no longer crime under Section 377 of Indian Penal Code (IPC). In view of the Court’s decision and the on-going aftermath, it is thus very important to trace the history of Section 377 in India and equally essential to understand and examine the issues relating to it. The paper attempts to analyse the law enumerated under Sec-377 in detail with focusing on the landmark case in the background. The author has also focused on the propitious and dissentious effects and public opinion. The paper also seeks to trace the international perspective of the similar law in various countries. The paper is based on authors’ research on statutes of various countries in contrast to section-377 of IPC, interaction and interviews with members of LGBT Community, international online sessions on topics, case study and analysis, reference material and other secondary sources. 

Introduction

The answer in many respects depends on what we mean by homosexuality. Do we limit ourselves only to sexual acts between members of the same sex and leave out romantic affection? Do we distinguish between those men who occasionally have sex with other men but otherwise live heterosexual lives and those for whom their sexual preference forms the core of their identity? Do we consider same-sex intercourse that occurs in the course of a subterfuge, or as a result of frustration or desperation?

Until the early 20th century, ‘heterosexuality’ was used to refer to ‘morbid sexual practices’ between men and women such as oral and anal intercourse, as opposed to ‘normal’ procreative sex. The term homosexuality – that is so casually used today and is almost an everyday vocabulary – came into being only in the late 19th century in Europe when discussions on the varied expressions of sex and sexuality became acceptable in academic circles. The term was used to describe “morbid sexual passion between members of the same sex.” It was declared ‘unnatural’ by colonial laws, as” unnatural” or as casual sex between men and women that were not aimed at conception.

The term homosexuality and the laws prohibiting ‘unnatural’ sex were imposed across the world through imperial might. Though they exerted a powerful influence on subsequent attitudes, they were neither universal nor timeless. They were – it must be kept in mind – products of minds that were deeply influenced by the ’sex is sin’ stance of the Christian Bible. With typical colonial condescension, European definitions, laws, theories and attitudes totally disregarded how similar sexual activity was perceived in other cultures.

Even though homosexuality was partially legalised in England more than fifty years ago, it stayed on as an illegal act in India. The Guardian reported last year that 72 countries and territories worldwide continue to criminalise same-sex relationships, including 45 in which sexual relationships between women are outlawed.

Legislative History of Section 377

Before understanding the law as under section 377 we must understand the legislative history behind it, the law under section 377 is based on the Victorian law of the Victorian era. This Section[2] was drafted by Thomas Macaulay around 1838 but was only brought into effect in 1860 in light of the Sepoy Mutiny (First War of Independence) 1857.

Offences against the Person Act 1861: In the year 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals. This act is what is considered to be the inspiration for Section 377 of the Indian Penal Code.

Sexual Offences Act, 1967: Homosexuality was decriminalized in the UK by the Sexual Offences Act 1967. It is interesting to note that while the British government has now made same-sex marriage legal, the Indian government still follows this archaic law written in the 1830s and enacted in 1860.

Indian Penal Code[3]; Section 377 was allowed to operate in Independent India as under Article 372 (1) “all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed”. The revised edition of the Penal Code was then forwarded to the Judges of the Supreme Court at Calcutta in 1851, and also to the Judges of the Sudder Court at Calcutta.

A Council was formed with Bethune (the Legislative member of the Legislative Council of India), Chief Justice of the Supreme Court at Calcutta, Justice Buller, Justice Colvile, Sir Barnes Peacock as members to review the Penal Code. It was the Committee of Peacock which finally sent the draft equivalent of Section 377 for enactment.

After twenty-five years of revision, the Indian Penal Code or IPC entered into force on January 1, 1862. The IPC was the first codified criminal code in the British Empire.

The Delhi High Court Verdict of 2009[4]

In 2001, Naz Foundation (India) Trust, a non-governmental organization challenged Section 377 in the Delhi High Court by filing a lawsuit to allow homosexual relations between consenting adults. However, in 2003, the High Court dismissed the case, stating that the Naz Foundation had no standing in the matter (locus standi). The Naz Foundation appealed this dismissal by the High Court to the Supreme Court, which concurred with them and instructed the High Court to reconsider the case. This led to the historic judgement in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which decriminalized consensual sexual acts between adults. Furthermore, this judgement was to be in force until the Parliament decided to amend Section 377.

Appeals in the Supreme Court on December 11th, 2012 a panel of two Supreme Court judges overturned the decision that the High Court had made in 2009[5]. The judgment stated that the power to amend the law was with the Parliament and not the High Court, thus their (High Court’s) judgment was constitutionally unstable.

Shashi Tharoor, the Member of Parliament from Thiruvananthapuram and the former Under Secretary-General of the United Nations used the social media to raise awareness, sign petitions regarding the matter, and finally introduced a private bill. This bill aimed at allowing adults to have consensual non-vaginal sexual intercourse, thus effectively decriminalizing homosexuality. However, it was disappointing to see that this bill was almost immediately rejected without it even being introduced.

Navtej Singh Johar vs. Union of India[6]

Analysing the judgement of the Supreme Court in depth, one can clearly predict that the Judges of India are now developing towards constitution morality rather than social morality. It is quite evident from the judgement itself that, the Supreme Court Bench based the landmark judgement on the morality as based in the constitution and not on the societal morality.

It is very clear that the natural identity of an individual should be treated to be absolutely essential to his being. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions.

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Section 377 IPC uses the phraseology carnal intercourse against the order of natural. The determination of the order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly, change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because the fear of law builds a civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.

It was thus held by the Supreme Court that constitution morality must out power social morality. Also, section 377 was held to be in violation of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. Therefore it can be said that there is no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual. It is manifestly arbitrary and over-broad, as it was correctly mentioned in  Shayara Bano v. Union of India and others[7] , for making the consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness at the fulcrum.

Section 377 also violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person‘s sexual partner as under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents.

Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech,  or any other means. In S. Khushboo v. Kanniammal[8], it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression. Additionally, the view in NALSA case has also been strongly pressed into service to emphasize that the said decision clearly spells out that the right under Article 19(1)(a) includes one‘s right to expression of his/her self- identified gender which can be expressed through words, action, behaviour or any other form.

Section 377 violates the rights of LGBT persons under Article 19(1)(c) and denies them the right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction under Section 377 IPC renders such persons ineligible for appointment as a director of a company. It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution as observed by this Court in Kishore Samrite v. State of U.P[9]. and Umesh Kumar v. State of Andhra Pradesh[10]  to the effect that reputation is an element of personal security and protected by the Constitution with the right to enjoyment of life and liberty. This right is being denied to the LGBT persons because of Section 377 IPC as it makes them apprehensive to speak openly about their sexual orientation and makes them vulnerable to extortion, blackmail and denial of State machinery for either protection or for enjoyment of other rights and amenities and on certain occasions, the other concomitant rights are affected.

Constitutional Perspective

The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.

In Video Electronics Pvt. Ltd. and another v. State of Punjab[11] –

“Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a particular situation arises. It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour in evolving dynamic situations.”

In one of the Constituent Assembly Debates, Dr.Ambedkar, explaining the concept of constitutional morality by quoting the Greek historian, George Grote, said:-

“By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution wall not be less sacred in the eyes of his opponents than his own.”

When a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be.

It is to be telescopically analyzed, social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.

 In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizen’s rights to a cipher.

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Our founding fathers adopted an inclusive Constitution with provisions that not only allowed the State, but also, at times, directed the State, to undertake affirmative action to eradicate the systematic discrimination against the backward sections of the society and the expulsion and censure of the vulnerable communities by the so-called upper caste/sections of the society that existed on a massive scale prior to coming into existence of the Constituent Assembly. These were nothing but facets of the majoritarian social morality which were sought to be rectified by bringing into force the Constitution of India. Thus, the adoption of the Constitution was, in a way, an instrument or agency for achieving constitutional morality and means to discourage the prevalent social morality at that time. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness.

While testing the constitutional validity of an impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.

International Perspective

The Supreme Court of Canada, while giving an expansive interpretation to marriage by including same-sex unions, in Re: Same Sex Marriage, has observed:-“The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”

 Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating:-

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

 Similarly, Article 17 of the International Covenant of Civil and Political Rights, to which India is a party, talks about privacy thus:-“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.”

The South African Constitutional Court in National Coalition for Gay and Lesbian Equality and another v. Minister of Justice and others[12] has arrived at a theory of privacy in sexuality that includes both decisional and relational elements. It lays down that privacy recognises that we all have a right to a sphere of private Communication, intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.

United States

The Supreme Court of the United States in Obergefell, et al. v. Hodges, Director, Ohio Department of Health[13],  highlighting the plight of homosexuals, observed that until the mid-20th century, same-sex intimacy had long been condemned as immoral by the State itself in most Western nations and a belief was often embodied in the criminal law and for this reason, homosexuals, among others, were not deemed to have dignity in their own distinct identity.  The Court further observed that what the statutes in question seek to control is a personal relationship, whether or not entitled to formal recognition in the law that is within the liberty of persons to choose without being punished as criminals.

In the case of Price Waterhouse v. Hopkins[14], the Supreme Court of the United States, while evaluating the legal relevance of sex stereotyping, observed thus:-

“…we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

United Kingdom

In Euan Sutherland v. United Kingdom, the issue before the European Commission of Human Rights was whether the difference in age limit for consent for sexual activities for homosexuals and heterosexuals, the age limit being 16 years in the case of heterosexuals and 18 years in the case of homosexuals, is justified. While considering the same, the Commission observed that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent in case of male homosexuals as compared to heterosexuals and that the application discloses discriminatory treatment in the exercise of the applicant’s right to respect for private life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Commission further observed that sexual orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent would unlikely affect the majority of men engaging in homosexual activity, either in general or within specific age groups. Equal age of consent was also supported by the Royal College of Psychiatrists, the Health Education Authority and the National Association of Probation Officers as well as by other bodies and organizations concerned with health and social welfare. It is further noted that equality of treatment in respect of the age of consent is now recognized by the great majority of the Member States of the Council of Europe.

Socio- Legal Analysis

When we hear the term gay or gay sex, we immediately go into our senses and consider it wrong and against the order of nature. When we say it is against the order of nature, what do we mean?

We consider that that the natural way to have a sexual intercourse id when the couple is indulging in it to produce a child. This is what the society has taught us and this is what we have built in our self by the name of “Social Morality”. Morality or sense of understanding something is developed only when we get to know the whole story or the truth behind the issue. We as a society do not understand the concept of LGBTQ community and Section 377 and goon and give our opinion based on conventional social morality.

It is this Social Morality which made the judges of the Supreme Court reverse the judgement of Naz Foundation given by the Delhi High Court and criminalised gay sex once again. It is very disheartening to note that the judges chose to adhere to social morality over constitutional morality.

Listening to the speech of Mr. Harish Iyer[15], who is the petitioner in the case of Navtej Singh Johar, it was found that the struggles of the LGBTQ community are even worse than we could have imagined. As per certain reports, it was revealed that the suicide rates of LGBTQ community are at an increasing rate and also the people are silent about them. The people find that homosexuality is a disease which is to be cured by yoga or medications.

It was also stated in the Suresh Koushal Judgement, that Homosexuals are “Meniscal Minority” and the rights that they are demanding are “So Called Rights” which is a public stunt. It was also said that such people would go on abuse children and make them like them.

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Impact and Application

In order to understand the Impact and Application, we must understand the situation before the judgement and after the judgement.

When section 377 was in place, the life quality of the LGBTQ community was very bad as the people who loved their partners or dates lived in immense fear of prosecution and public shaming. Even when they used to roam around with their respective partners they would be shamed or even beaten sometimes. But the situation has changed if not better after the verdict of 2018.

Although, the society is way behind accepting LGBTQ people but at least they can now be proud of whom they are as they have the constitutional recognition and mandate with them. The LGBTQ people can now roam and even enjoy the company of their partners without any fear of prosecution.

In an interview with a Gay Boy of aged 19, named Amit*[16], it was found that when he was of 17 years he found out about his sexual orientation and has been dating a guy named, Sunil*[17] from past one year. They both are madly in love with each other. But what was shocking to know was that they have been arrested multiple times by the police for walking in the parks together or holding a hand or kissing each other. After, the verdict, I contacted Amit and asked about his feelings and came to know that he is very happy as now no one can stop him and his boyfriend at all.

Possible Outcomes

It is due to the landmark judgement of the Supreme Court that now more and more people would fearlessly come out about their sexual orientation and would live their lives happily and without fear.

It is not always glee and happy when a verdict is out and it is the same with this case also. Although the verdict is very good for the LGBTQ community but is does have some negative effects or outcomes also.

The commercial sex and prostitution will possibly be increased when there is no fear of prosecution under section 377. Also, the unnatural act done without consent will be left high and dry. There is also a rise in cases of bullying, abusing and shaming of people who have come out.

In an exclusive interview with Karan[18]aged 23, it was revealed that he found a Gay date on one of the gay messaging apps and he invited him over to his house. Once the date arrived, the duo had dinner and was moving to the bed, when the doorbell rang. On opening the door, Karan found that the date’s parents were there and next thing he remembered was that they were beating him hardly. After, some time they demanded 50 thousand rupees from Karan or otherwise they would tell his parents. Unfortunately, the date was incorrect and it was their plan to extort money from Karan.

It is very evident from this instance that there may be many more such cases wherein people are now faking their sexual identity in order to extort money and commit crimes like theft.

Solutions

When we compare the laws of Gay relationships in India with the other countries, we found that India lags way behind them. In other countries, not only Gay sex is legal but they also have proper laws which provide for same sex marriage and same sex adoption.

In India, only the judgement legalised gay sex but what about their civil rights. It is held in the judgement that it is a matter of different dispute altogether. Thus, it is concluded that people from the same sex can indulge in sexual intercourse with each other but nothing more than that, they cannot marry, cannot have a child or even adopt.

With strict laws of adoption and banning of commercial surrogacy, these couples have no right to bear a child.

Therefore, the author is in the view that the Indian legislation and Judiciary should as soon as possible provide for the Civil Rights of LGBTQ Community. There has been a step taken by the Government towards civil rights of LGBTQ people by providing, “The Transgender Persons (Protection Of Rights) Bill, 2016”. However, we must not stop here and provide the other people of the community with more such bills and laws.

The Indian Government must also take steps to ensure that there is no misuse of this verdict and all citizens are being protected irrespective of their sexual orientation. Also, the Government must spread awareness through advertisements and campaigns.

Conclusion

Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.

Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.

At the dawn of Independence, Jawaharlal Nehru recalled how, during the freedom struggle, our nation had passed through the “valley of the shadow” — and, if necessary, we would pass through it again. In 2013, the Supreme Court plunged the LGBT+ community into another valley of the shadow, when it overturned Naz Foundation and observed that “the so-called rights of the minuscule minority” could not become grounds for challenging a law.

Nonetheless, the court’s decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people. It is difficult to overstate how these legal expressions of love inspire human rights to change more widely across India (and abroad). An Indian sociologist has explained the politics of love built on vulnerability, reflection, and solidarity can enrich communities everywhere. The LGBT persons deserve to live a life unshackled from the shadow of being ‘felons who are apprehended’.


[1] Navtej Singh Johar vs. Union of India (2018) 1 SCC 791.

[2] The Indian Penal Code, 1860, Section 377

[3] The Indian Penal Code, 1860.

[4] Naz Foundation v. Govt. of NCT of Delhi, 2010 CriLJ 84.

[5] Suresh Kumar Koushal & Anr. v. NAZ Foundation and others, Civil Appeal 10972 of 2013.

[6] Navtej Singh Johar v. Union of India (2018) 1 SCC 791.

[7] Shayara Bano v. Union of India and others (2017) 9 SCC 1.
[8] S. Khushboo v. Kanniammal (2010) 5 SCC 600.
[9] Kishore Samrite v. State of U.P (2013) 2 SCC 398.
[10] Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591.

[11] Video Electronics Pvt. Ltd. and another v. State of Punjab 1990 AIR 820.

[12] National Coalition for Gay and Lesbian Equality and another v. Minister of Justice and others [1998] ZACC 15.

[13] Obergefell, et al. v. Hodges, Director, Ohio Department of Health. 576 US (2015)

[14] Price Waterhouse v. Hopkins 490 U.S. 228 (1989)

[15] Harish Iyer, also known as “Aham”, hiyer and “Harrish Iyer” (born 16 April 1979) is an activist for a number of causes, including promoting the rights of the lesbian, gay, bisexual, and transgender (LGBT) community, children, women, animals, and survivors of child sexual abuse.

[16] Name changed for privacy reason

[17] Name changed for privacy reason

[18] Name changed for privacy reason