King's Student Law Review

As India moves towards the most liberal era it has ever seen with economic, educational and societal developments seen taking leaps and bounds, there seem to be contradictions in the Indian social psyche with regard to certain issues that are still in the fetters of age old moral beliefs. The rights of lesbians, gays, bisexuals and transgender people are one of those sensitive areas that have still not surfaced as one of those transformations that one hopes a country  in the 21^st century would witness. Even though, as discussed in this article, the 2009 judgment of Naz Foundation v. Government of NCT of Delhi[1]came as a wave of relief, the Indian society was struggling to accept the “queer” in the true sense of the word.[2]

 

The author will primarily, in this article, look at the historical case law treatment given to the LGBT community reflecting the dire need for a judgment like the Naz Foundation case and then finally analyse the judgement in depth and make a note of its ramifications. This article, in its conclusion, argues that despite the decriminalisation of Section 377[3] of the Indian Penal Code, the LGBT community has a long battle to fight in India as compared to other countries[4].

 

• A Historical Indian Legal Perspective

Homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality”[5]. Section 377 of the Indian Penal Code, a figment of colonial creation, has criminalized “unnatural sexual acts” since its application as law in 1862. Homosexuality falls within such acts and may attract punitive measures.[6] In the previous century, legislatures and judiciaries across the globe have upheld laws criminalising homosexuality and transgender behaviour, justifying them on grounds of public decency and morality. With the advent of the contemporary epoch, the movement against the repressive and oppressive nature of Section 377 grew exponentially and reached its culmination in Naz Foundation v. Government of NCT of Delhi[7], wherein the Delhi High Court recognised the anachronism associated with Section 377 and interpreted it to exclude sexual acts between consenting adults, thus decriminalising homosexuality. Although the ramifications of the decision are limited[8] and may be quashed by an Act of the Indian Parliament, the judgment is a landmark in civil liberties litigation and may be regarded as one of the stepping stones to the emancipation of the sexual minorities in India from tyranny and coercion at the hands of the law.

 

But, prior to this decision Section 377 has been extensively used by the law enforcers to harass and exploit homosexuals and transgender persons. Various such incidents have come to light in the recent past. This can be ascertained also by the attitude of the courts towards the lesbian, gay, bisexual and trans-gendered community. In Calvin Francis v. Orissa[9], it had been held that oral sex fell within the ambit of Section 377 of the IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria. Also, in Khanu v. Emperor[10], it was held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings…. [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible”. Courts had earlier held in R. v. Jacobs[11] and Govindarajula In re[12] that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices.

 

It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity. In Jayalakshmi v. The State of Tamil Nadu[13] a eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he had been picked up on the allegation of involvement in a case of theft. There was evidence indicating that during police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forcing him to have oral sex. The person in question immolated himself inside the police station on 12.6.2006 and later succumbed to burn injuries on 29.6.2006. The compensation of Rs.5,00,000/- was awarded to the family of the victim. Also, in the case of Aids Bhedbhav Virodhi Andolan v. Union of India[14], it was held that homosexuality should not be accepted by Indians because- (1) Homosexuality is not accepted by Indian culture and society, (2) Criminalisation of homosexuality is necessary to provide a healthy environment by criminalising unnatural sexual activities and also that it can open the flood gates of delinquent behavior, (3) Criminal law should represent the wishes of the majority of the population and homosexuality should be a crime as a majority of Indians are intolerant towards it.

 

Even the 42^nd Law Commission Report stated that – “First, it cannot be disputed that homosexual acts and tendencies on the part of one spouse may affect the married life and happiness of the other spouse, and from this point of view, making this act punishable under law has a social justification. Secondly, even assuming that acts done in private with consent do not in themselves constitute a serious evil, there is a risk involved in repealing a legislation that has been in force for a very long time.”[15]

 

• A Change In 2009

As a stark contrast, the Naz Foundation case[16] is, in a way, cause of great jubilation for the hitherto oppressed sexual minorities. It forms a source of deliverance on two different planes: it decriminalises sexual relations between homosexuals and simultaneously serves as a source of protection from maltreatment and vilification at the hands of the upholders of the law. It also ensures protection of the sexual minorities from various medical afflictions by bringing their condition in the conscience of the authorities. Based upon the citizens’ right to privacy and a life of dignity, the Court correctly concluded that these rights can only be subordinated to some overriding public interest. The Court further evaluated the constitutional validity of the impugned law, examining its compatibility with specific provisions of the Indian Constitution. Having held that sexual preferences fall within the right to dignity and privacy of the individual, the court held that Section 377 constituted a direct infringement of the aforementioned right and as a consequence, violates the substance of Article 21[17]. To answer the question of violation of Article 14[18], the court applied the tests laid down by the Supreme Court since the decision in State of West Bengal v. Anwar Ali Sarkar[19]. The court observed that the impugned law begot an arbitrary differential and there was no reasonable nexus between preventing child sexual abuse or ameliorating public health, and the criminalisation of consensual sexual relations between adults. The Court then went on to interpret the term “sex” in Article 15 to not only denote gender, but to have a wider periphery inclusive of “sexual orientation”. Moving on this perception, the Court ruled that Section 377 is prima facie discriminatory towards the sexual minorities and is therefore, in violation of Article 15[20] as well. With the impugned law contravening Article 21 and Article 14, the court found it superfluous to entertain the question of violation of Article 19[21]. The court, in a gesture of finality, applied the doctrine of severability in order to read down the impugned law only to the extent of decriminalising consensual sex between adults.

 

Finally, the Court referred to the report of the British-Wolfenden Committee and the Sexual Offences Act, 1967, by which English law de-criminalised homosexuality. It fortifies its conclusions by the 172nd report of the Law Commission which also took the same view: ‘Section 377 in its present form has to go’.

 

In conclusion it can be said, as Mr. Ram Jethmalani, a celebrated criminal lawyer in India writes, the Judgment does not recommend homosexuality or even approve of it. But is does away with the obnoxious arrogance of the claim that my conduct is natural while others violate nature.[22]

 

CONCLUSION

The Constitution of India assures equality of laws and equal protection and directs people to renounce practices derogatory to the dignity of men, women and the members of the LGBT community. The LGBT Community though recognised recently, as already mentioned is struggling to find a foothold in the Indian society. It will still take society at large to accept gays, lesbians, bisexuals and trans-genders a considerable amount of time. Till then only legal safeguards can be framed for this group.

 

Deccan Chronicle, an Indian newspaper had reported in 2009 that as the Chief Justice read out the conclusion, “an audible gasp went around the room. By the time the Chief Justice had finished reading the conclusion of the judgment, people were openly weeping and there were handshakes and hugs all around.” This sums up the need of a free society where this community should be given equal rights and privileges as all others.

 

As I conclude this article, The Supreme Court of India is in the process of hearing the Naz case. The Indian media is in frenzy and latest updates from the court rooms are being given every day. The Supreme Court is taking its time, and rightly so, because after all this judgment will unleash a new era where lesbians, gays, bisexuals and transgender will live with naz (pride).

Shuchi Swami

University of Oxford