This agreement is written by Ankita Sen, a 3rd Year student at National Law University, Odisha.

HOMOSEXUALITY- THE THIRD SEX

Popular belief and study of the behavioural trends of the homosexuals tell us, homosexuality is a romantic and physical attraction of a person towards another of the same sexual orientation. Scientists all over the world are not at consensus about the exact causes of homosexual behaviour in humans. Homosexuality, often called the third sex, has an unsettled legal and social status in India. While, we see rallies and public protests against the oppression of homosexuals in the society, we also see the homosexuals being looked down upon by a large number of members of the society. The Indian society appears ambivalent, being tugged between popular views and the call of their own conscience. These societal and legal perspectives in turn, have a plausible psychological impact on the members of the homosexual community, also called the LGBT (lesbians, Gays, Bisexuals, transgenders) community in the local jargon.

RIGHTS OF THE LGBT- LEGALLY SPEAKING

“Coined around 1050 by St. Peter Damian to denote sexual activity between men, “sodomy” is a shortened form of “the sin of Sodom,” referring to the Genesis account of the men of Sodom who tried to have intercourse with two angels and were smitten with blindness.”[1] The very famous scholar, William Blacksmith had always held a very abominable approach towards sodomy. His ideas had a marked influence on the development of anti sodomy laws in many parts of the world, including the Americas and the British colonies. Section 377 in the Indian Penal Code, drafted by Lord Macaulay is also an offshoot of such historical as well as popular conservative religious beliefs.

The Naz Foundation Case – challenging criminalization of homosexuality on constitutional grounds

The Naz Foundation had tucked at Section 377 of the Indian Penal code, the very root of anti-sodomy law in India.

The Naz Foundation India(Trust) Limited., a nongovernmental organization works towards the prevention of AIDS, providing support to the victims of this deadly disease, that includes people from the sexual minorities, like the homosexuals. The crusade against law criminalizing consensual same sex activity between adults started in the year 2001, when the Naz Foundation filed  a lawsuit in the High Court of Delhi against the anti sodomy law, alleging that Section 377 was being used for police atrocities, thus impeding their activities.

The Delhi High Court Judgement that legalized homosexuality in India

“In a landmark judgment, the Delhi High Court on Thursday struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution…”[2]

The petitioner, The Naz Foundation pleaded that Section 377 of the Indian Penal Code be declared unconstitutional on grounds that it clearly violates the sacrosanct Fundamental Rights enshrined in Part III of the Indian Constitution. They contended that the right to equality under Article 14 was being grossly violated by the discrimination against these sexual minorities. It was also contended that, sexual relations was a very private issue of an individual’s life. State interference in such a sensitive issue was a clear violation of the right to privacy, implicit in the right to life guaranteed under Article 21 of the Constitution. Such discrimination against the LGBT community on grounds of an aberrant sexual orientation had another impact too. It showed a clear violation of the fundamental right under Article 15(1), which eliminates ‘sex’ as a ground of state discrimination. The petitioners also contended that there was violation of the fundamental rights under Article 19 because, the victims were not being given the right to freely express their sexual preferences and also move at their own free will in order to get involved in any kind of homosexual behaviour.

“Limiting their plea, the petitioners submit that Section 377 should apply only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”[3]

In the case of Govindarajalu In re[4] in 1886, the Court had held that oral sex would not fall under the umbrella of Section 377. This identical view was reprised in a later case, Khanu v Emperor[5], where, “the court held that the test to determine whether carnal intercourse is against the order of nature is to see whether the sexual act is performed without the possibility of reproduction.”[6] However, a gradual shift in views and ideas was seen in cases later. In the 1968 case of Lohana Vasantlal Devchand v State[7], “the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.”[8] Thus oral sex was an offence under Section 377. Emphasis now shifted to the words “against the order of nature”, instead of the emphasis earlier given to the words, “carnal intercourse”, that was interpreted as only such sexual activity that can result in procreation. The same trend as in the Lohana case was followed in subsequent cases. In the 1969 case of State of Kerala v Kundumkara[9], the Kerala High Court came up with the ruling, “committing intercourse between the thighs of another is carnal intercourse against the order of nature and the act fell within the ambit of Section 377.”[10] In the 1992 case of Calvin Francis v Orissa[11], oral sex was considered to fall under Section 377 and was thus considered an offence. However, a new concept of ‘sexual perversity’ came up in this case and in the case of Fazal Rab Choudhary v State of Bihar[12]. Any activity that would help in deriving sexual satisfaction that was abnormal would come within Section 377 and would be considered an offence. “Therefore, the first test described in Khanu in order to determine whether sexual acts were against the order of nature was based on considerations of possibility of procreation, whereas the later test described in Calvin Francis and Fazal Rab Choudhary was based on considerations of sexual perversity.”

After such extensive study regarding the interpretation of Section 377, came the much lauded Delhi High Court judgement. The Court sensitised on the issue of harassment of the homosexuals in the society and declared Section 377 as violative of Articles 14, 15, 19 and 21 of the Constitution, so far as it tries to criminalize the private sexual activities of consenting adults. The Court also realized that so far Section 377 has only been used to protect the victims from any kind of unnatural forced sexual activity. Thus, using it to criminalize sexual relations and activities between consenting homosexual adults, would be a misutilization of the Section. However, the Court held that “The provisions of Section 377 IPC will continue to apply to non-consensual penile non-vaginal sex and penal non-vaginal sex involving minors.”[13]

The Supreme Court Judgement that struck down a Delhi High Court judgment to make homosexuality illegal in India again

“The Supreme Court on Wednesday reinstated a colonial-era ban on gay sex that enables the jailing of homosexuals in a major setback for rights campaigners in the country.”[14]

After the landmark judgement by the Delhi High Court, Suresh Kumar Koushal, an Indian citizen who felt it important to protect the moral values embedded in the society, sent a petition to the Supreme Court of India, challenging the High Court judgement.

In the views of the petitioners scrapping down Section 377 was irrefutably baseless. It was argued that no constitutional right validates any act which has the tendency to cause harm to oneself and to others, intercourse between homosexuals being one such high risk activity. The petitioners brought in the concept of the code of nature- every organ in the human body have been assigned discrete functions by nature and man should not violate such naturally set norms. Thus, accepting the Delhi High Court Order might inimically perturb marriage as an institution itself and might tempt the youth towards homosexual activities.

The respondents showed through various cases, how Section 377 IPC was being used to harass people from the homosexual community. One such case was that of Jayalakshmi v State of Tamil Nadu[15]. In this case, concerning sexual abuse of eunuchs by the police, Section 377 was used by the Metroplitan Magistrate to penalise two women. This was grossly unreasonable because, the Explanation to Section 377 IPC mentions penetration as a requirement. The respondents argued on the archaic and obsolete nature of Section 377 IPC.

Repelling the moral stand taken by the petitioners, Shri F.S Nariman fighting on behalf of the respondents pointed out, Section 377 IPC falls under Chapter XVI, “Of Offences affecting the Human Body”[16] (and not under Chapter XIV). Thus, Section 377 should not be used to classify against the LGBT community morally.

The respondents also paid attention to the commonly debated question, whether Section 377 should apply to the sphere of homes. They argued that Section 377 IPC should not apply to the private activities of the homosexuals because the difference between amoral and depraved acts in the public and private spheres has been recognized statutorily by Section 294 IPC. It was argued that, the right of the homosexuals to enter into any personal relation of their choice, cannot be denied, by shedding an umbrella of criminality over same sex relationships. The respondents considered important, the view given by Justice Vivian Bose in S.Krishnan and Ors. v. The State of Madras[17], “…when there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.”[18]

The Debate On Constitutionality of criminalization of homosexuality

A major point of debate was regarding the constitutionality of Section 377 IPC. In the words of Shri V Giri, “if the judgement is rested purely on the constitutionality of the provision, then there is a fair chance of the judgement [of the High Court] being reversed. That is what has happened. The Court has not gone into any other issue.” [19]

The petitioners laid stress on the theory of presumption of constitutionality- a statute is presumed to be constitutional unless it directly violates a fundamental right. Thus, an indirect violation of the fundamental rights cannot be considered sufficient ground for quashing Section 377 of the Indian Penal Code. The petitioners also contended that there was no violation of Articles 14 and 15 of the Indian Constitution. This is because, Section 377 IPC applies to both the genders equally, if they engage themselves in “carnal intercourse against the order of nature”[20]. So, the Delhi High Court’s finding that, Section 377 unjustly discriminates against the homosexual community as a ‘class’, has no solid base. Shri Ahmadi, fighting on behalf of the petitioners argued that, the Delhi High Court is itself not clear whether it wants to severe portions of Section 377 or read down the Section. He added that, “the language of the section was plain, there was no possibility of severing or reading it down. He further argued that, irrespective of the Union Government’s stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour.”[21]

The respondents tried to challenge the very constitutionality of Section 377 IPC. Quite a few situations can be derived from the language used in the Section- carnal intercourse or anal sex between a husband and a wife, procreative or non-procreative, with or without consent, etc. According to them, Section 377 in the practical scenario, considers the LGBTs as a separate class and thus stands repugnant to Articles 14 and 15- the constitutional pillars of equality. Also, Section 377 IPC does not lay down any well drafted policy or principle as to which of the various possible cases it should apply. Thus, it cannot be justified under Article 14 even on grounds of intelligible differentia and hence, reasonable classification. According to the respondents, Section 377 IPC also does not follow a  “procedure established by law”[22] as required by Article 21 of the Indian Constitution, by interfering into the lives of the homosexuals without following any proper statutory procedure. Cases like Mithu Singh v State of Punjab[23], Selvi Devi v State of Karnataka[24], were discussed in order to study the “ test of whether a law is just fair and reasonable has been applied in examining the validity of state action which infringes upon the realm of personal liberty.”[25]

The Supreme Court however, based their judgement solely on the constitutionality criteria and held that Section 377 IPC is constitutional and hence, overruled the Delhi High Court judgement.

WHAT DOES THE WORLD SAY ABOUT LEGALIZING HOMOSEXUALITY

In the international scenario, various human rights development programmes, have been undertaken time and again. However, if one focuses on the issue of LGBT rights, the situation is rather menacing. The United Nations Declaration on Human Rights, the protector of all human rights, had no place for LGBT rights, solely because, when it was drafted, homosexuality was considered a mental illness. “In 2003, the State of Brazil presented a resolution to the UN Commission on Human Rights to affirm rights based on sexual orientation.”[26] However, the proposal was deferred to 2004 and faced a dead end when, it expired from the UN agenda in 2005. In 2005, New Zealand’s statement supporting the rights of these sexual minorities was backed by 32 states in the UN, but did not result in a formal vote.

However, individual countries are showing progress in full tilt.

In the United States of America, a variety of organizations advocate the LGBT rights at different political and legal levels. However, homosexuality was banned in the USA till 1991 by the Immigration and Nationality Act, 1952. Homosexual relationships have been legalized throughout the nation after the Supreme Court judgement in Lawrence v Texas[27].It was “reasonably speculated that same-sex individuals desire intimacy or a private sphere of decision-making as much as heterosexual couples in a traditional marriage.”[28] Unlike America, homosexuality has been legal in China since 1997, with the revision of their national penal code. Australia has advanced a lot too in respecting the LGBT rights. Civil rights of these sexual minorities are recognized, though same sex marriage is an exception. Talking about the countries in the European Union, they are governed mainly by the treaties and laws of the EU, differing amongst themselves only in sensitive areas like homosexual marriage, etc. The EU laws ban any kind of discrimination against the LGBTs in areas of employment.

Thus, it is clear that, all over the world, the status of LGBT rights have gained ground, leaving out the Islamic countries, the continent of Africa (where 38 countries consider homosexual relationships illegal), the Vatican and other ultra conservative parts of the world.

POLICY FRAMEWORK AROUND HOMOSEXUALITY AND LAW

While the legal status of same sex relationships and marriages has always been in dispute, policies for these sexual minorities have been unstable too. In the year 1994, voting rights were granted to the LGBTs.

“In 2005, the Central Government introduced category ‘E’ in passport applications meant for transgender persons…Similarly they can get voter id cards with a third gender.”[29]

Very recently, the Supreme Court of India has declared that, “Transgenders should be treated as a third category and as a socially and economically backward class entitled to job reservation.”[30]

Government is still sensitive regarding issues like same sex marriage, adoption by same sex couples, commercial surrogacy for gays, etc. Thus, there is no clear policy for the LGBTs in India.

THINK FOR YOURSELF – WHAT IS THE COST OF MAKING HOMOSEXUALITY ILLEGAL?

After the innumerable attempts to determine the status of homosexuality in India, I would like to look at the problem from a personalized perspective.  First, we need to understand the primary point of conflict regarding the issue of homosexuality. People primarily raise opposition to the proposal of widely accepting the third sex and their right to lead a private life, on moral grounds. However, it is important to note that, sexual orientation being a biological function cannot act as a strong influencer on moral grounds. One who is not biologically homosexual, cannot get involved in homosexual activities simply on the basis of societal influence. Instead, if we as a society maintain a liberal outlook, we will be able to respect the rights of the LGBTs. This should not mean that we transform our way of living, but only nurture and develop ourselves into responsible citizens, who are able to space out their lives, thus allowing every right thinking member of the society to lead an undisturbed life.  It depends on the strength of human personality. We should be  able to place our own morals at the apex, without casting a shadow of contempt on the diverse individuals in the society. We should allow ourselves to respect the human diversity, that might come up in the form of variant cultures, festivals, food cuisines, and more recently in the form of a variant sexual orientation. Whether or not, we imbibe such variant in ourselves depends on our biological matrix, supported by the strength of our character. However, just as we get the right to absorb or abject this variant, the LGBT community should have the same right too. What the society considers normal, might as well be a variant to them. So criminalizing homosexuality is no solution.

The key lies in maintaining a strong, liberal and healthy outlook towards every member of this society.

[1]Dipika Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and Transgender People in Delhi:An Empirical Investigation, 2 Centre for Health Law, Ethics and Technology, Jindal Global Law School

viii, xi (2012) available at http://www.jgls.edu.in/UploadedDocuments/Report_ImpactoftheNazFoundationJudgment.pdf , last seen on 10/5/2014.

[2] Nirnimish Kumar, Delhi High Court strikes down Section 377 of IPC, The Hindu (03/07/2009), available at http://www.hindu.com/2009/07/03/stories/2009070358010100.htm , last seen on 12/5/2014

[3]Suresh Kumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.

[4] Govindarajalu In re, (1886) 1 Weir 382.

[5] Khanu v. Emperor, AIR 1925 (Sind).

[6] Ibid.

[7] Losana Vasantlal Devchand v. State, AIR 1963 Guj 252.

[8] Ibid.

[9] State of Kerala v. Kudumkara, (1969) CriLJ 818.

[10]Ibid.

[11] Calvin Francis v. Orissa, (1992) 2 Crimes 455.

[12] Fazal Rab Choudhary v. State of Bihar, (1982) 3 SCC  9.

[13]Suresh Kumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.

[14]Supreme Court says gay sex illegal , govt hints at legislative route, Hindustan Times (11/12/2013), http://www.hindustantimes.com/india-news/supreme-court-says-gay-sex-illegal-govt-hints-at-legislative-route/article1-1161395.aspx , last seen on 5/7/2014.

[15]Jayalakshmi v. State of Tamil Nadu (2007) 4 MLJ 849.

[16]Ss. 299-377, The Indian Penal Code, 1960.

[17]S Krishnan and Ors. v. The State of Madras, AIR 1951 SC 301.

[18]Ibid.

[19]Murali Krishnan, In Conversation with  V Giri, Bar and Bench (18/12/2013), http://barandbench.com/content/212/%E2%80%9C-legislature-has-seriously-consider-whether-s-377-should-be-kept-statute-book%E2%80%9D-%E2%80%93-senior#.U8Lw4vmSylg , last seen on 07/07/2014.

[20]S. 377, The Indian Penal Code, 1960.

[21]Supra 13.

[22]Art. 21, the Constitution of India.

[23]Mithu Singh v. State of Punjab, AIR 1983 SC 473.

[24]Selvi Devi v. State of Karnataka, (2010) 7 SCC 263.

[25]Supra 13.

[26]The United Nations and the Advancement of LGBT right, ARC International, available at  http://arc-international.net/network-development/conference-presentations/presentation-un-mechanism , last seen on 28/6/2014.

[27]Lawrence v. Texas, 539 U.S. 558 (2003, Supreme Court of the United States).

[28]Same sex marriages- an overview, 97 (CP Nandini, 1^st ed., 2008).

[29]Supreme Court’s Third gender status to Transgenders is a landmark, Biharprabha, available at http://news.biharprabha.com/2014/04/supreme-courts-third-gender-status-to-transgenders-is-a-landmark/ , last seen on 01/07/2014.

[30]SC says transgenders ‘third category’; activists turn verdict revolutionary, MSN News, available at http://news.in.msn.com/national/sc-says-transgenders-third-category-activists-term-verdict-revolutionary , last seen on 02/07/2014.