Homosexuality refers to an individual’s romantic or sexual desire for the same sex. Despite the fact that it has been in existence for a long time, it has been a target of condemnation from societies all across. According to the International Gay and Lesbian Human Rights Commission (IGLHRC), a human rights NGO seeking to protect the human rights of the LGBTQ community, as many as 80 countries in the world have continued to criminalize sexual intercourse between consenting adults of the same sex. India, prior to 2018, was one of those eighty countries that have retained the prohibition on sexual relations between adults of the same-sex, characterizing such acts as ‘crimes against nature’. Men and women who identify themselves as gay, lesbian, or bisexual are attacked as immoral criminals. In recent years, numerous NGOs and state organizations have called for legislation to decriminalise homosexuality and to recognise, accommodate and equalise gays, lesbians, and bisexuals.. [1]
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HOMOSEXUALITY AND ITS LEGALITY IN INDIA
Despite its long history in India especially during the Mughal rule, homosexuality is still considered taboo. It was criminalized under Section 377 IPC, 1860. Section 377 reads as follows:
“Whoever has voluntary carnal intercourse with any man, woman or animal against the order of nature shall be punished with life imprisonment or with imprisonment of either description for a period of up to ten years, and shall also be liable to a fine.[2]
Thus, a plain reading of this section suggests that Section 377 gets attracted when a person:
- Had carnal intercourse with man, woman, or animal;
- Such intercourse was against the order of nature; and
- Such an act was done voluntarily by the person accused of the offence.
And upon conviction, the person is liable for punishment.
In fact, the Law Commission of India in its 172nd report has recommended that the rape laws be changed to:
- Make it gender-neutral;
- Make special provisions for sexual abuse against children; and
- Repeal Section 377 of the IPC [3]
HISTORY OF 377
THE BUGGERY ACT, 1533
Thomas Macaulay drafted this section around 1838, but it was only brought into force in 1860 in the wake of the 1857 Sepoy Mutiny also known as the First War of Independence. Enacted under the reign of King Henry VIII, this law was modelled on the Buggery Act 1533. It described Buggery as an unnatural sexual act against the will of God. It, therefore, criminalised bestiality, anal penetration, and homosexuality in a wider context.
OFFENCES AGAINST THE PERSON ACT 1861
In 1828, the Buggery Act was repealed and replaced by the Offences against the Person Act of 1828. The Act widened the scope of unnatural intercourse and allowed rapists and homosexuals to be easily prosecuted. This Act is in fact famous for being the inspiration behind the inclusion of section 377 in the Indian Penal Code. It was further replaced by the Offences Against the Person Act of 1861. Finally, in 1967, the UK decriminalised homosexuality by the enactment of the Sexual Offences Act of 1967.
It is very fascinating to note that while the British government has made same-sex marriage legal way earlier in 1967, the Indian government continued following this archaic law till 2018 drafted by Lord Thomas Macaulay in the 1830s and enacted in the year 1860.
SECTION 377 AND VOILATION OF FUNDAMENTAL RIGHTS
Fundamental rights are the cornerstone of democracy. Every citizen of India has been guaranteed fundamental rights which can never be subjected to violation by the state or any individual. One of the prominent fundamental rights is the Right to Equality which is enshrined under Article 14 of the constitution. Article 14 of the Constitution provides that the State shall not deny equality before the law and equal protection of the law to any person. Along with this, every citizen has the Right to life and personal liberty under Article 21 which is considered to be the most important right under Part III of the Constitution. Section 377 on the other hand, criminalizes sexual acts between a person of the same gender and punishes the person involving in the same. It, therefore, puts a barrier in the personal liberty of a person to choose his or her own partner along with curtailing the right to equality. Section 377 IPC is therefore violative of the Fundamental Rights under part III of the Indian Constitution.
https://legalreadings.com/punishment-and-theories/
JUDICIAL APPROACH
The attempt to decriminalize Section 377 IPC began in the year 2001. The Naz Foundation Trust, Delhi filed a Public Interest Litigation (PIL) to challenge Section 377 of the Indian Penal Code in the Delhi High Court. The petition questioned Section 377’s violation of four fundamental rights granted by the Indian Constitution:[4]
- Right to equality before the law (Article 14), since the provision discriminates against particular groups;
- Right to be free from sex discrimination (Article 15), since the law primarily targets homosexual sex; the right to fundamental liberties (Article 19); and
- The right to life and privacy (Article 21) since section 377 jeopardizes the lives of adults by hindering the activities of HIV prevention and by affecting the private consensual sex of adults.
On 2 July 2009, the High Court of Delhi struck down much of Section 377 of the IPC as being unconstitutional in the case of Naz Foundation v. National Capital Territory of Delhi.[5] The High Court though did not strike down Section 377 completely. It held that by criminalizing consensual sexual acts between two consenting adults, Section 377 violated the fundamental rights of a citizen to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15, and 21 of the Constitution of India.
In December 2013, in response to an appeal filed by Suresh Kumar Koushal and others[6], the Hon’ble Supreme Court of India upheld the constitutionality of section 377 IPC. In its judgment, the Supreme Court held that section 377 of IPC, is violative of Articles 21, 14, and 15 of the Constitution to the extent that it criminalizes consensual sexual acts of adults. Nevertheless, the provisions of section 377 IPC will continue to regulate non-consensual penile non-vaginal sex involving minors and penile non-vaginal sex involving minors. The Hon’ble Court further explained that the judgment would not give rise to the reopening of criminal cases involving Section 377 IPC which had already reached their finality.
On 28 January 2014, the Hon’ble Supreme Court quashed the review petition filed by the Central Government, Naz Foundation, and several others, opposing the verdict on Section 377 of IPC. On 2 February 2016, the Supreme Court, however, agreed to reconsider its 2013 judgment; it said it would refer the petitions under Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue of abolishing section 377.
Finally, in 2018, in the case of Navtej Singh Johar v. Union of India[7], the Honorable Supreme Court of India ruled that Section 377, to the degree that it criminalizes consensual sexual activities of adults in private, violates Articles 14, 15, 19, and 21 of the Constitution of India. It further explained that the consent used in this portion must be free consent, of a voluntary nature, and devoid of any coercion.
CONCLUSION
The reformation done by the Supreme Court on Section 377 is indeed a leading step towards sexuality rights. Years of advocacy and activism by sexuality and LGBT organizations have now led to widespread media coverage of any case falling under Section 377. With increasing gay pride marches and other events in recent years, people are now more openly discussing sexuality rights. India now celebrates pride month every year in June. At a recent public debate in Delhi on the Section 377 judgment, moderated by former Attorney General Soli Sorabji, Professor Shohini Ghosh clarified how the judgment had fundamentally changed the idea of sexuality. She noted that the judgment had led to many debates on sexuality away from an idea of public morality to one of constitutional morality. It also reshaped the definition of damage. The question is no longer whether homosexuality “harmed” abstract conceptions of family values and social fabric, but how the provisions of Section 377 by marginalizing, oppressing, and manipulating them caused harm to the members of the LGBTQ community. Finally, she added that the breadth of the judgment, with its implication of unparalleled protection for all minorities, transcended the LGBTQ problem. By doing so it introduced the idea of sexual citizenship for the first time in South Asia.
REFERENCES
[1] Human Rights Watch World Report 2001: Special Programmes and Campaigns, Lesbian and Gay Rights, available at: http://www.hrw.org./press/2003/07hrw-amicusbrief.htm (last visited on 15th Oct 2020).
[2] The Indian Penal Code, 1860, s. 377.
[3] Law Commission of India, 172nd Report on Review of Rape laws (March 25, 2000).
[4] 160 Delhi Law Times 277.
[5] Naz Foundation v. National Capital Territory of Delhi, 160 Delhi Law Times 277
[6] Suresh Kumar Koushal & Anr. v. NAZ Foundation & Ors, Civil Appeal 10972/2013.
[7] W.P. (Crl.) No. 76/2016.
BY PRITHA LAHIRI | INSTITUTE OF LAW, NIRMA UNIVERSITY