By Ankit Sharma, Siddhartha Law College, Dehradun.

 “Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?”
                                                                                                                                             Ernest Gaines

Should the Lesbian, Gay, Bisexual, and Transgender collectively known as ‘THE LGBT’ community in India continue to remain in the shadow of criminality? The de-criminalisation of homosexuality is now a myth. The Supreme Court of India has overturned a reading of Section 377 of Indian Penal Code and refused to review it or even to peruse it. Could this intolerance go so far as to allow for state tolerated slaughters against queer people? Or will it restrict itself to “merely” vigorously opposing the repeal of Section 377? Will this be going to Parliament to figure out the rights of LGBT community? Can’t Parliament take action? These are few questions which are yet to be answered. These questions reminds me the dilemma during the emergency when the SC fell in line in the Habeas Corpus case to hold that Indira Gandhi could even suspend the right to life, has it let down the cause of personal liberty as much as it has done in the Naz Foundation Case on 11.12.2013.[1]

The New Needed Diversities of Law

Lord Macaulay drafted Indian Penal Code, 1860 and introduced it in 1861. But we are still facing the odds of Section 377 and IPC, a code which was drafted approximately 150 years ago. Poignantly, the British drafted Section 377 of the IPC and repealed the law with changing in the nature of the society, but the Apex Court disappointed the community of homosexuals when they were really seeking for their dignity. But it was a sudden shyness, the Supreme Court of India delivered a devastating verdict confirming the criminalisation of consensual sexual acts “against the order of nature”.[2]

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The case, Suresh Kumar Koushal v. Naz Foundation,[3] on appeal from a visionary Delhi High Court ruling, offered the court an opportunity to usher India into a new era of enriched civil rights. In its decision, High Court had “read down” section 377 to make consensual non “penile-vaginal sex” between two adults within confines of a private space no longer a crime.  The court, in a well-researched judgment, had noted several precedents from other countries to rule that punishment of such sexual activity had no constitutional sanction.  The court had taken care to exclude forced sexual acts or even consensual sexual acts involving minors or any sexual activity in the public sphere. Poring through from Macaulay (the colonial framer of IPC) to sodomy cases from 1817, the SC concluded that “orifice of mouth is not, according to nature, meant for sexual or carnal intercourse”. [4]

On the larger plight, it remains to be seen whether the government, political parties and conservative religious groups place the right to judge and enforce a vision of “public morality” over the rights, freedom and dignity of LGBT people. Where is the place of perceived “public morality” within criminal law? Who decides what is “moral” and “natural”? Who decides what behaviors are “natural” and what behaviors are “unnatural”? These are some important questions which is still unresolved in our hetero-normative socio-legal structure.

 The Evolving Concept

Let us take an example if 95% people like oranges and other 5% like apple, will they be penalized to eat those apples. Homosexual is a community, a minority but not a minuscule minority. Just like, other minorities, they also have a right to exist, right to love, right to cohabit, that has been taken away from them within.  Looking into the society, LGBT community has given no space in the society. But when the law fails to an already vulnerable sexual minority, it is abandoning that population to stigma, discrimination, homophobia, transphobia, violence and even death.

Sahayatrika, a lesbian women’s collective in Kerala, has documented twenty four cases of lesbian couple suicides in Kerala during the period between 1996 and 2005.[5]

Section 377 of IPC violates the constitutional protections embodied in Articles 14 and 21. It suffers from the depravity of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community thus overstepping their right under article 14. It also unreasonably and unjustly infringes upon the right of privacy which is ‘sine qua non’ to article 21. The expanded scope and ambit of the right to life and personal liberty enshrined in Article 21 sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights. Thus different sexual expressions or orientations automatically come within the realm of expanded right to life and personal liberty.[6]

Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others. Hence even if homosexuals have their own private will to marry with a same sex person and alternative sexual orientation, they have the right to live with dignity in society.

The expression “dignity of the individual” finds specific mention in the Preamble to the Constitution of India. The life Homosexuals are as dignified as any other citizen of India.
Section 377 also conveys the message that homosexuals are of less value than other people, it disgraces them and unconstitutionally infringes upon their right to live with dignity. Section 377 IPC also creates structural impediments to the exercise of freedom of speech and expression and other freedoms under Article 19 by homosexuals or gays and is not protected by any of the restrictions contained therein.[7]

Courts in jurisdictions have struck down some laws that criminalise same-sex sexual conduct on the grounds of violation of right to privacy or dignity or equality or all of them. Issues regarding Right to Privacy in India were raised in Kharak Singh v. State of Uttar Pradesh.[8]
This right again came for examination before the Supreme Court of India in Govind v. State of Madhya Pradesh,[9] and this time Supreme Court took a more elaborate view and accepted a limited right to privacy as an emanation from Articles 19 (1)(a), 19 (1)(d) and 21. It was also said that the right is not absolute. So, reasonable restriction may be imposed on this right. These restrictions must be the same as are provided under the Constitution of India, 1950, Article 19, clause 2 (2). But inUnni Krishnan v. State of Andhra Pradesh,[10] the Hon’ble Supreme Court of India took a bigger step and interpreted the expression Personal Liberty in its widest amplitude and gave a list of rights that may fall under the Constitution of India, 1950, Article 21. Thereby Personal Liberty was held to include Right to Privacy.

A Senior Advocate made a statement that being a gay is not the crime, but having intimate relationship with same gender comes under criminality. But the statement itself is rhetoric. If two adults wants to have consensual sex with the same gender, what is the problem in that? They are just having physical intimate relationship with their partner in private. If a person loves another and if they voluntarily make intimate relationship, what is the problem in that? They are not hurting anybody.[11]

They are all natural, there are scientific findings which proves now that the homosexuals are by birth. Therefore, it is not a psychological defect. Even the psychologists have now scrambled the LGBT’s from their list of mental disorders. Why are the children who are born as they are, are not allowed to live as they are? They are not aliens, they are also humans, and they are also the citizen of India. They should also enjoy every fundamental rights just like others.

India is a democratic country and a democracy cannot abandon any community. This is a democracy, here minority rights are as same important as the majority rights. They should also have the rights to Equality, right to live with dignity, right to live with joy and freedom. Right to live and dignity is everyone’s inalienable right.

“The dynamism of Law should be maintained to keep justice in motion and interpretation of static Laws must maintain equilibrium”

[1] PAROMA MUKHERJEE on The Supreme Court’s flawed and poorly reasoned judgement upholding Section 377 sparked protests across the country.- See more at: http://www.caravanmagazine.in/perspectives/and-justice-none#sthash.rvHANgtN.dpuf

[2] Amit Kumar Sinha on  Homosexuality in India: Better Late Than Never.:-See more at: http://www.Indialawjournal .com/ volume3/issue_4/article_by_amit.html

[3] CIVIL APPEAL NO.10972 OF 2013

[4]  “Indian Gay Suit Seeks to Decriminalize Gay Sex”, http://www.sodomylaws.org/world/india/innews04.htm.

[5] Maya Sharma, Loving Women: Being Lesbian in Unprivileged India, Yoda Press, 2006

[6] Dr. Shrinivas Ramchandra Siras & Ors v. The Aligarh Muslim University & Ors, Civil Misc. Writ Petition No.17549 of 2010.

[7] http://articles.timesofindia.indiatimes.com/2011-02-22/kolkata/28624865_1_lesbian-couple-suicide-field, last accessed on 10 September 2011.

[8] 1964 SCR (1) 332

[9] 975 SCR (3) 946

[10] 1993 SCC (1) 645

[11] Vinay Sitapati, The Spectre of Naz, as available at http://www.indianexpress.com/news/the-spectre-ofnaz/6096 95/0.

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