IS EQUALITY A MERE SLOGAN? by ANISHIKA GARG and AANCHAL DHURIA

“I  am what I am. So accept me as I am. No one can escape from their individuality.”

  -DIPAK MISRA

Gender equality (or sexual equality) is an equal access to the resources and opportunities regardless of gender. Homosexuality is a part of human sexuality. Most of the LGBT people in India remain closeted as homosexuality was not acceptable according to the social norms o the social norms as homosexuality was not acceptable according to the social norms prevalent in India, fearing discrimination from their families who see homosexuality as shameful. The reports of honor killing, attacks, torture and beating of the members of the LGBT community are very common in India. Through this article entitled as “IS EQUALITY A MERE SLOGAN?”, the authors tend to extract the fossilized and structured thought on homosexuality which is casting the shadow on the problems faced by LGBT community in India. India, being a land of diverse cultures took a long time to accept the LGBT community and their rights. Thus, this article focuses specifically on the legalization of LGBT rights in Indian context and the various amendments to be made in the Indian Penal Code. Section 377 of Indian Penal Code criminalizes homosexuality against the order of nature. The voice for the decriminalization of Section 377 was first raised by Naz Foundation and AIDS Bhedbhav Virodhi Andolan in 2001 before the Delhi High Court. Thus, the legal battle for the decriminalization of Section 377 that continued for a decade has been settled by 5-judge constitutional bench of the Supreme Court comprising of former Chief Justice of India Dipak Misra, Justice AM Khanwilker, Justice DY Chandrachud, Justice RF Nariman and Justice Indu Malhotra wherein the Supreme Court finally struck down a part of this section which criminalizes gay sex. However, the other portion of Section 377 which criminalizes sexual acts with minors, non-consensual sexual acts and bestiality remains in force.

“There will not be a magic day when we wake up and it’s now okay to express ourselves publicly. We make that day by doing things publicly until it’s simply the way things are.”

-TAMMY BALDWIN[1]

Not only the law but a lot of other factors contribute to the oppression of certain communities and their unprivileged status in the society such as social taboo, notion of tradition, culture and so on. Many a times, the laws which are meant to promote equality among all the creatures, humans and otherwise do quite opposite. Thus, it will not be an overstatement to say that law is often a tool in hand of those with power.

Earlier for LGBT person, one of the biggest issues is criminalization of same sex act because of Section 377 of Indian Penal Code. Section 377 inflicts tragedy and anguish on the people having a particular sexual orientation and it should be remedied. Macaulay’s legacy exists 68 years after the coming of the liberal Constitution by which the human instinct to love has been constrained. So, there is a need to amend Section 377 of Indian Penal Code.

Section 377 – Unnatural offences [2]

The meaning of unnatural offences has undergone changes as the different High Courts have given different opinions with respect to Section 377. Earlier, it was taken as any kind of non–procreative act done by an accused in relation to the victim and then the Supreme Court has settled the meaning of unnatural offences as any kind of sexual perversion will amount to unnatural offence. Thus, where a person has a carnal intercourse which is pervert in nature on the part of the accused will fall within the meaning of this section. The consent is wholly irrelevant in this section and the party consenting will be equally liable as an abettor. This offence is gender neutral so far the accused is concerned. Thus, it may be by a man or women.

Section 377 punishes unnatural carnal intercourse and corresponds to the offences of sodomy and bestiality under the English law.

Sodomy – It refers to the penetration per anus by a man with a man or with a woman or with an animal. It may either be homosexual or heterosexual. However, the laws of sodomy have been rarely enforced against heterosexual couples and have mostly been used to target the homosexual. The person effecting the carnal intercourse is known as the ‘agent’ and the other party as the ‘patient’.

Bestiality- It means sexual intercourse by a man or women with beast (animal) or bird.  This section is not attracted if the act is done either man or women with inanimate objects.

Carnal intercourse – meaning

Carnal intercourse is when the accused makes the victim to constitute an orifice (hole) in his body for the purpose of penetration in order to derive sexual pleasure. So, where that is done for sexual perversion, it amounts to carnal intercourse.

In 1969, the Kerala High Court was invited to interpret ‘carnal intercourse’ and ‘penetration’. In State of Kerala v/s Kundumkara Govindan and Anr[3]., it was held that the act of inserting a male organ between the thighs kept together and tight amounts to ‘carnal intercourse against the order of nature’ and thereby the doer comes within the clutches of ‘unnatural offences’.

Thus, this phrase was interpreted to mean all forms of sexual activities other than heterosexual penile-vaginal intercourse. The penile-anal, penile-oral or penile-animal penetration however slight it may be, it will amount to carnal intercourse.

In Brother John Anthony v/s State of Tamil Nadu[4], the petitioner, a warden of a boarding school inserted his penis into the mouth and hand of the victim making manipulated movements of the penis and withdrawal up to the point of ejaculation of semen. While holding the petitioner liable under Section 377 of Indian Penal Code for committing unnatural offences, the Madras High Court held that:

                “Manipulation and movement of the penis of the accused whilst being held by the victim in such a way as to create an orifice (an opening a small mouth of a large hole) like thing for making manipulated movement of insertion and withdrawal till ejaculation of semen will fall within the sweep of unnatural carnal offence”.

As depicted by the graph[5] only 33% of the people are in favor of same sex marriage in India whereas 44% of the people are against same sex marriage. Due to socio- economic and educational backwardness, people does not favor decriminalization of homosexuality. However with the lapse of time homosexuality is no more an offence under Indian Penal Code.

Famous Indian LGBT personality who have broken all the stereotypes against homosexuality[6]:

• Laxmi Narayan Tripathi is a transgender’s rights activist, a Bharatnatyam dancer and Hindi film actress. She represented Asia Pacific region in the United Nation being a transgender and thus created a history.
• Rohit Bal is one of the famous designer of Indian fashion industry and dated model Lalit Trehan for 3 years.
• Onir is a gay director in the bollywood.
• Gauri Sawant was born in a Marathi family as Gaurav Suresh Sawant and become mother by adopting a 5-year old Gayatri.
• Sushant Divgikar went on to become MR. GAY WORLD INDIA 2014 and made the country proud by making to top ten.
• Pankaj Kumar alias Boby Darling is an Indian actress and a Limca book record holder for portraying eighteen roles as a gay man.
• Manvendra Singh Gohil, a son and heir of the Maharaja of the Rajpipla in Gujrat become the first openly gay prince in the world.

CONSTITUTIONAL VALIDITY OF SECTION 377

Timeline of events:-

Year	List of Events
1861	Section 377 was introduced by the British Raj modeled on Buggery Act of 1533 which states that ‘buggery’ is an unnatural sexual act which goes against nature, God and man’s will.
1994	AIDS Bhedbhav Virodhi Andolan files the first petition challenging the constitutional validity of Section 377 before Delhi High Court in order to challenge the prison authorities’ ban on condom distribution.
1998	After the release of the film ‘Fire’ depicting lesbian relationship, certain organizations staged protests forcing cinemas to stop screening the movie.
2001	Naz Foundation working on HIV/AIDS and sexual health issues filed a petition challenging the constitutional validity of Section 377 before Delhi High Court alleging that it violates the fundamental rights guaranteed by the Constitution of India.
2004	Delhi High Court dismisses the petition.
2006	The Supreme Court remanded the case back to Delhi High Court to hear the case on merit.
2009	The Delhi High Court described Section 377 as violative to fundamental rights guaranteed by the Constitution of India.
2013	The Supreme Court set aside the 2009 verdict thus recriminalizing homosexuality.
2016	The Supreme Court refers the curative pleas on homosexuality to a five-judge constitutional bench.
2017	The Supreme Court declares right to privacy as a fundamental right under the Constitution.
2018	The Supreme Court headed by five-judge bench unanimously struck down a part of Section 377.

In Naz Foundation v/s Government of NCT of Delhi[7], the constitutional validity of Section 377 was challenged before Supreme Court by an NGO known as Naz Foundation alleging that Section 377 is violative to fundamental rights and thus, be declared unconstitutional.

The issue of Section 377 was first raised by an NGO (Naz Foundation) and AIDS Bedhbhav Virodh Andolan. The petitions were filed before Delhi High Court in 2001 but both the petitions were dismissed by High Court without giving any reasons. Thus, the Naz Foundation approached the Supreme Court against Delhi High Court judgment and Supreme Court remanded the case back to Delhi High Court for deciding the case on merit. During the trial, many other organizations joined in the case including religious institutions from Hindu, Muslim and Christian communities who were opposing the contentions of Naz Foundation. Some other organizations joined in favor of Naz Foundation.

ARGUMENTS

The contentions of Naz Foundation were that the Section 377 is violative to Article 14, 15, 19 and 21 of the Constitution of India.

Article 14[8]:

1. It is discriminatory in nature. Homosexuality is not a disease. They are born as such by nature. Gender is not only male or female. There is Third Gender also. The Supreme Court have recognized the Third Gender and given them the status of Backward Class in National Legal Service Authority v/s Union of India[9].
2. India is an inclusive society where all shades of culture has right to grow as per their own orientation. Thus, the majority culture cannot overshadow or cut down any minority culture. So, the Section 377 is destroying this aspect of inclusiveness among the Indian people.

Article 15[10]:

 The discrimination and ignorance are particularly present in backward areas where LGBT people often face non-acceptance from their families and forced sex marriages.

Article 21[11]:

1. The right to privacy has been recognized as a fundamental right. This has now been confirmed by 9 Judge Bench of Supreme Court in Justice KS Puttaswamy (Retd.) v/s Union of India[12]. Section 377 is a cognizable offence permitting police intervention in any case which falls within the scope of Section 377. Thus, it is affecting the right to privacy of two individuals. The argument was that the house of a person is a castle and no authority can interfere with it, however mighty it may be, except on the ground of national security.
2. The right to life and liberty does not mean living like an animal. Article 21 confers right on every individual to live with dignity and self-respect. Section 377 provides power to enforcement agency to intervene on the basis of this section. Many examples can be cited where person belonging to particular orientation was humiliated by society or beaten by the police. This kind of behavior seriously affects the right of a person to live with dignity and self-respect.
3. The Supreme Court has many times held that any law should be clear, definite and cannot be arbitrary or imaginative. It was held in Maneka Gandhi’s case[13] in 1979 that any law, whether procedural or substantive, if it is vague, uncertain or arbitrary, it is violative to the Article 21 of the Constitution of India. Thus, the terms unnatural offence, carnal intercourse, against the order of nature used in the section are interpreted differently by different agencies. Hence, these terms are arbitrary and are being interpreted by police and courts according to their own suitability.

Article 19[14]:

This article was not pleaded before the Delhi High Court. However, it was mentioned that Section 377 discourages and prohibits expression of opinion and forming of organizations or unions by people belonging to particular orientation because of fear of police intervention.

COUNTER-ARGUMENTS

The Union Of India, represented by its Ministry of Home Affairs and Ministry of Health and Family Welfare resisted the contentions of Naz Foundation and pressed for its retention. Its contentions were:-

1. The Ministry justified the existence of Section 377 in the Code on the ground of public health, public morality, public disapproval and social disgust of the act.
2. The decriminalization of homosexual act would be against the prevailing social mores in India.
3. The Ministry contended that right, including fundamental rights cannot be absolute. The Constitution of India permits reasonable restrictions on fundamental rights on the ground of decency, morality and public health. Therefore, the restriction on the homosexual act through Section 377 of the Indian Penal Code is justified.

After undertaking the extensive examination of arguments and counter-arguments of the parties, the Delhi High Court concluded that if the following conditions are present, it will not constitute an offence under Section 377-

1. Both are adult i.e. above 18 years.
2. Both were consenting parties.
3. An act was committed in privacy.

So, Section 377 was declared as partly unconstitutional by Delhi High Court. Nevertheless, it ruled that the provisions of Section 377 will still continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

In Suresh Kumar Koushal and Anr. v/s Naz Foundation and Ors[15], the decision of Delhi High Court was challenged before the Supreme Court where division bench of Supreme Court reversed the decision of Delhi High Court on two grounds –

1. The decriminalization of homosexual act is immoral and
2. The matter falls within the purview of parliament.

No law can be declared unconstitutional merely because the society has changed its perception about legitimacy or pragmatic utility of the act or statutory provision. The mere fact that the police have used Section 377 to perpetrate harassment or blackmail sexual minority particularly LGBT community cannot be used to assail the constitutionality of the said provision. Thus, it ruled that Section 377 Indian Penal Code does not suffer from the vice of unconstitutionality.

The Supreme Court refers to a plethora of its earlier judicial pronouncements to rule that Section 377 is intra-vires. Expressing its displeasure over the reliance by Delhi High Court on foreign judicial opinion, the Supreme Court observed:

“In its anxiety to protect the so-called right of LGBT person and to declare that Section 377 of the Indian Penal Code violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgements of other jurisdictions. Though these judgements shed considerable light on various aspect of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding constitutionality of law enacted by Indian legislature.”

The prominent BJP leader Rajnath Singh after 2013 decision said, “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported”. Whereas the senior BJP leader Arun Jaitley had said, “When millions of people the world over are having an alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.”

The Congress party also supported the law during the initial Naz Foundation Case, stating that the gay sex was “immoral” and that it cannot be decriminalized.

Further in Naz Foundation (India) Trust v/s Suresh Kumar Koushal and Ors[16], the Supreme Court, after going through review petition, declined to interfere with its earlier decision request the Chief Justice of India (Justice Deepak Misra) to constitute a Constitutional Bench of five Judges.

Section 377 verdict : The Supreme Court refers to global judgments that set precedent to decriminalize homosexuality.

In Navtej Singh Johar & Ors. v/s Union of India thr. Secretary Ministry of Law and Justice[17], the five members from LGBT community filed a new petition in the Supreme Court challenging the constitutional validity of Section 377 of Indian Penal Code. These petitioners were a famous Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. It is the first case where the petitioners argued that they had been directly aggrieved because of Section 377 alleging it to be direct violation of the fundamental rights.

Referring the matter to a larger bench, Justice Dipak Misra had observed, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”

A five-judge constitutional bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra on 06 September,2018 after hearing a number of petitions unanimously struck down a part of Section 377 of the Indian Penal Code (IPC) which criminalised gay sex, saying that it violated the constitutional right to equality and dignity. However, the other portions of Section 377 relating to sex with minors, non-consensual sexual acts and bestiality remains in force.

The Supreme Court while strucking down a part of Section 377 quoted the judgements delivered by the courts of various countries on this issue. It mentioned that the constitutional courts of United States, Canada, South Africa, Republic of Philippines and European courts of Human Rights have passed the similar verdicts.

The Supreme Court of United States observed on the same issue, “LGBT were entitled to respect for their private lives and that the State could not demean their existence or control their destiny by making their private sexual conduct a crime, because their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without the intervention of the State.”

In Roberts v/s United States Jaycees[18], the United States top court observed “the choices to enter into and maintain certain intimate human relationship must be secured against undue intrusion by the State.”

 The constitutional court of South Africa in a case relating to LGBT community observed the “stigma attached to a significant proportion of our population is manifest.”

And the Supreme Court of Canada in DelwinVriend case[19]had observed that the most important outcome is psychological harm which may ensue from the state of affairs as the fear of discrimination would logically lead them to the concealment of true identity.

The Supreme Court reads down 158-years old colonial law and thus allowed homosexuality among consenting adults in private. It gave legal approval and recognition to homosexuality.

The Supreme Court thus observed:

“The issue of sexual activity falls under the definition of privacy. No one has the right to question how do two adults perform the sexual intercourse and whether this intercourse is natural or unnatural”.

Justice Dipak Misra & Justice AM Khanwilkar

Dipak Misra (the former Chief Justice of India) said that the destruction of individual identity is like crushing of dignity, which hampers privacy, choice, freedom of speech and expression. Attitude and mentalities have to change to accept the distinct identity of individuals, they must be respected for who they are and not compelled to become who they are not.

“Homosexuality is neither mental illness nor mental depravity”

The science of sexuality says that an individual has a little or no control over whom she/ he is attracted to. Sexual orientation is decided even before birth, and that homosexuality is found in about 10% of the population.

Justice RF Nariman

Justice Nariman talked about that chief draftsman of the Indian Penal Code, Lord Macaulay, himself recognized a lesser punishment of a crime of “unnatural lust” if performed with consent. He said “homosexuality is not a “psychiatric disorder” and that same sex sexuality, much like heterosexuality and bisexuality.” There is no scientific evidence that the sexual orientation can be changed by treatment. He said “when reason for a law ceases, the law itself ceases.”

Justice Dr DY Chandrachud

Section 377 not only criminalizes an act rather it criminalizes a specific set of identity, and leads to the “perpetration of a culture of silence and stigmatization”.

He said it does not bring about the difference between “ordinary intercourse and intercourse against the nature”.He said “In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

“The right of sexual privacy, founded on the right to autonomy of a free individual, must capture a right of person of a community to navigate public places on their own terms free from state interference.”

Justice Indu Malhotra

Justice Malhotra said “sexual orientation is an inmate attribute to one’s identity and cannot be altered.” She observed that the term ‘sex’ as prohibited grounds in Article 15, is not merely restricted to the grounds of biological attributes of an individual, but also includes their “sexual identity & character”.

In a powerful statement of apology jurisprudence she said that “history owes an apology to the member of this community and their families for delay in providing redressal for the ignormany and ostracism that they have suffered through the centuries.”

As the judgement provided an insight into the constitutional principles that governed the matter before it, drawing a prudent and efficient linkage of them with several aspects of the human condition it is this reason that judgement would live on for years to come.

CONCLUSION

In the view of the aforesaid findings, it can be concluded that the constitutional morality and not the societal morality should be the driving force for deciding the validity of Section 377. The disclaimer to LGBT community of their right to sexual orientation is a denial of their citizenship and violation of their privacy. Thus, Section 377 decriminalizes consensual sexual acts of adults (i.e. persons above the age of 18 years) in private. However, consent must be free and devoid of any duress or coercion. The provision of Section 377 will however continue to govern non-consensual sexual acts against adults, even acts of carnal intercourse against minors and also acts of bestiality

 The constitutional bench has decided that homosexuality is also an order upholding the fundamental right to sexuality, sexual orientation and choice of same-sex partners. Thus, the doors are open for individual to approach the court in future on the larger issue of legalizing same-sex marriage, inheritance, adoption and reservation in marriage.

Thus, this reading down of Section 377 will not lead to the reopening of any concluded prosecutions but it may be relied upon in all the pending matters whether they are at trial, appellate or revisional stage.

[1]  from her “Never Doubt” speech at the Millennium March for Equality,2000.

[2]  Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

[3] 1969 Cri LJ 818.

[4] 1992 Cri LJ 135

[5]https://www.google.co.in/search?q=increase+in+population+of+LGBT+COMMUNITY+in+india&rlz.

[6]https://www.timesnownews.com/entertainment/news/bollywood-news/photo-gallery/lgbtq-section-377

[7]  (2010) Cri LJ 94 (Delhi), 160 (2009) DLT 277.

[8]  Equality before law.

[9] (2014) 5 SCC 438.

[10]  Prohibition of discrimination on ground of religion, race, caste, sex or place of birth.

[11] Protection of life and personal liberty.

[12]Writ Petition (Civil) No 494 Of 2012.

[13]1978 AIR 597, 1978 SCR (2) 621.

[14]  Protection of certain rights regarding freedom of speech etc.

[15]  AIR 2014 SC 563, (2014) Cr LJ 784 (SC), (2014) 1 SCC 1.

[16]  (2014) 3 SCC 220.

[17] WRIT PETITION (CRIMINAL) NO. 76 OF 2016

[18]468 U.S. 609 (1984).

[19][1998] 1 S.C.R. 493; 1998 Can LII 816 (S.C.C.); 1998), 156 D.L.R. (4th) 385.