SECTION 377: GONE TOO LATE OR GONE TOO EARLY

Dissertation submitted in partial fulfilment of the requirement for the degree of LL.M

Submitted by Supervised by VANSH CHAUDHARY Mr. NEERAJ TIWARI

National Law University Delhi (India) 2019

i

TABLE OF CONTENT

TITLE PAGES

DECLARATION IV

CERTIFICATE V

ACKNOWLEDGEMENT VI

LIST OF ACRONYMS AND ABBREVIATION VII

LIST OF CASES VIII

CHAPTER I

INRODUCTION 1

1.1 REVIEW OF LITREATURE 2

1.2 STATEMENT OF PROBLEM 2

1.3 RESEARCH QUESTION 3

CHAPTER II

REGULATING HOMOSEXUALITY THROUGH LAW: SECTION 377 4

CHAPTER III

SOCIOLOGICAL PRESPECTIVE OF HOMOSEXUALITY 12

3.1 HOMOSEXUALITY AND ANCIENT INDIA 13

3.2 HOMOSEXUALITY AND MEDIEVAL INDIA 18

3.3 HOMOSEXUALITY AND MODERN INDIA 20

ii

CHAPTER IV

REFLECTION OF INDIAN JUDICIARY ON HOMOSEXUALITY 24

4.1 PRE INDEPENDENACE 25

4.2 POST INDEPENDENACE 27

4.2(1) PRE NAZ-FOUNDATION CASES 29

4.2(2) NAZ FOUNDATION CASE 31

4.2(3) POST NAZ-FOUNDATION CASES 33

CHAPTER V

CONCLUSION 40

BIBLIOGRAPHY 42

iii

DECLARATION

I hereby declare that the dissertation entitled “section 377: gone too late or gone too early” submitted by me under the supervision of Mr. Neeraj Tiwari.

I further declare that to the best of my knowledge, the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or in any other institutions

Signature of candidate

Vansh Chaudhary

Roll No. 79LLM18

National Law University, Delhi

Place: Delhi

Date:

iv

CERTIFICATE

This is to certify that the work reported in the LL.M dissertation entitled “Section 377: gone too late” submitted by Vansh Chaudhary at National Law University, Delhi is a bona fide record of his original work carried out under my supervision.

(Signature of Supervisor)

Mr. Neeraj Tiwari

Assistant Professor

Place: Date:

v

ACKNOWLEDGEMENTS

I thank my Supervisor Mr. Neeraj Tiwari, Assistant Professor of law, National Law University, Delhi for allowing me to find my way through this exercise, for giving valuable inputs from time to time and gently nudging me when required. I know I can never repay back her guidance, love and affection.

I am grateful to Dr Ranbir Singh, Vice Chancellor, National Law University, Delhi and Dr G.S Bajpai, Registrar, National Law University, Delhi for giving a healthy environment in the University campus which helped me in enhancing my knowledge.

I thank my parents for being a strong pillar in my life and allowing me to do whatever I want to do in my life, I thank my parents for nourishing me in an environment which helped me in becoming an honest person.

vi

LIST OF ACRONYMS & ABBREVIATIONS

ABVA AIDS Bhedhbhava Virodhi Andolan

AIDS Acquired immunodeficiency syndrome

AIR All India Report

Anrs Another’s

Cr.L.J Criminal Law Journal v. Versus

PIL Public Interest Litigation

IPC Indian Penal Code

Ors. Others

Org. Organisation

SC Supreme Court

LGBTQ Lesbian, Gay, Bisexual, Transsexual, and Queer

STD Sexual Transmitted Diseases

vii

LIST OF CASES

1. D P Minwalla vs. Emperor AIR 1935 Sind 78 2. Fazal Rab Choudhary V State of Bihar AIR 1983 (SC) 323 3. Government vs. Bapoji Bhatt (1884 (7) Mysore LR 280) 4. K.S. Puttaswamy v. Union of India, (2017) 10 SSC 1 5. Khanu vs. Emperor 1925 Sind 286 6. Lohana Vasantlal and others vs The State AIR 1983 (SC) 323 7. National legal service authority Vs. Union of India, (2014) 5 SCC 438 8. Navjet Singh Johar vs Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 9. Naz foundation V Government of NCT of Delhi, 2009 SSC Online Del 1762 (2009) 111 DRJ 1 10. Noshirawn vs. emperor AIR 1934 Sind 206 11. Pooran Ram Vs State of Rajasthan 2001 CriLJ 91 12. Queen empress vs. Khairati 1884 ILR 6 ALL 204 13. Shakti Vahini vs. Union of India, (2018) 7 SCC 192: (2018) 3 SSC (CIV) 580: 3 SCC (Cri) 1 14. Shafin Jahan vs. Asokan K.M, (2018) 16 SCC 368 15. State of Kerala vs. K Govindan (1969) CriLJ 818 16. Suresh Kumar Koushal and anther Vs Naz Foundation and Ors. (2013) 4 SSC (Cri)1

viii

CHAPTER 1

1.1 INTRODUCTION

India history is quite vast and has changed over the course of time, the rule of law has been affected by the various social factors which depended upon Rulers who ruled it before coming of a uniform power with the pan Indian notion. Thus, the uniform rule of law came only after the coming of the Britishers in India with the advent of colonial law and further, major breakthrough came up only after the implementation of Indian penal code in 1860 and thus section 377 coming into force which changed the course of a particular community in a society at large and thus leading to labelling of different sexualities differently and their activities were criminalised, which in return turned them into criminals.

Section 377 not only put restrains on the same sex activities but also brought people who termed them as straight, as oral sex, sodomy and sex with animal was also criminalised, thus section 377 led to the construct of new identity and terms LGBTQ1 came into existence which was highly fluid in nature and term. The court until 2018 failed to recognise this group and their sexualities despite there was constitutional and social acceptance of homosexuality in the subcontinent, but this declaration of section 377 unconstitutional was just a small step in recognising the rights of homosexuals as the struggle of this group has just started and has to bat for larger acceptance in society and further to get there civil rights fulfilled. As to say that one has to look at why it took so long for Indian judiciary to recognise their rights despite having a liberal and modern constitution which recognised freedom, equality and personal liberty of an individual.

1 LGBTQ where L stands for ‘Lesbian, G stands for Gay, B stands for Bisexual, T stands for Transsexual people and Inter sex, and sexual minority’ and ‘Q’ at the end devotes queer

1

1.2 STATEMENT OF PROBLEM

India is a land of heterogeneity and diversity and this diversity cannot be only seen in the terms of different language and culture but also in terms of sexual orientation from time in immortal, these sexualities cannot be seen in nut shell but need to be looked from bigger and wider perspectives, which is based on the law and society and thus every law works under an influence of society and try to replicate what society needs from legislature and judiciary.

Thus, section 377 of the Indian penal code was introduced by British government as an experiment of law by foreign power on the subcontinent which drew its origin on British land itself having influence of Victorian and Christian morality, thus law lacked the social understanding of the Indian subcontinent and had been loosely carried forward the burden of morality from that time of its application and to the present times and thus, affecting the life of the people who belongs to the LGBTQ community, this affect cannot be not only in seen terms of psychological pain but also can be seen though physically pain as well.

This section of 377 has been there for a long time, despite of Indian constitution coming into force in 1950 and thus providing Indian citizen with right to equality, freedom, privacy, personal liberty and right to life which have been time and again interpreted by the court in wider terms. Thus, it is important to look why it took so long to get away with colonial law and recognising the rights of an individual and LGBTQ community at large.

1.3 RESEARCH QUESTION

1. Whether the act of homosexuality or consensual same sex was tested only on the constitutional morality or the sociological phenomenon were also considered by the Indian courts?

2

1.4 LITREATURE REVIEW

The Section 377 have put a huge burden on the people who wanted to live a free and equal life by creating shackle of punishment and effects of this punishment is not only created through the criminal process but by the society as well as, society has created certain kind of social construct. The law has gone but the chill effects of this law can be seen through various lenses. And to see these lenses it is important to trace the history and origin of the section of 377 as the article ‘This alien legacy: The origins of ‘sodomy’ laws in British colonialism’ which have talked about the origin of section 377 from the time of 13th century and mainly drew its origin from church and religious law of Britain, as they considered same sex activities immoral. Secondly it is important to look at the social development of the various social movements which affected the LGBTQ community movement in India as article by Jerry Joseph ‘Gay and lesbian movement in India’ talks about how the movement came into existence and how profoundly it is working towards the community. Thirdly it is important to look at the judiciary taking note of section 377 and its effects on the Indian society through various cases as the article by Ajendra Srivastav ‘Gay Sex and the constitution: Naz Foundation and Lawrence Compared’ which provide us with knowledge about the first in famous cases and how the movement had built over it in Indian domain. To further look into the deep knowledge of the applicability of section 377 by the Indian judiciary into the society can be seen through the article by Alok gupta, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41. Not only law but the society is also a very important facet to understand the applicability of section 377 in society and how society perceive it and it can be seen through the article ‘Sumit, Saurabh, ‘Discipling the ‘desire’: ‘straight’, state and LGBT activism in India’, Sociological, vol. 6. Thus, it is important to look into the literature to have a deep understanding of the subject that is homosexuality having an interplay between the society and law.

3

CHAPTER 2

REGULATING HOMOSEXUALITY THROUGH LAW: SECTION 377

The India society before the coming of the Britishers was governed by the various kingdoms who ruled India accordingly, thus homosexuality was governed by the religious text and society at large and therefore there was no uniform law to regularize the homosexuality in the subcontinent. This regulations and criminalization of homosexuality came only after the Britishers completely colonized the subcontinent and applied their own rules and law in term of Indian penal code of 1860 the code which meant to punish certain acts.

Thus, the section 377 also came into force which largely meant to regularized the acts of sodomy and bestiality at first place and oral sex on the second and this law had a chilling effect of the homosexual which can be felt in modern India as well. Thus, it is important to look at the genes of section 377 through its origin from the British main land. As section 377 not only put restriction on the same sex activities but also brought the burden on the people who termed them as straight, as oral sex and Bestiality was also criminalized, this section 377 of the IPC further led to the construction of new identity, and the term gay and bisexual and lesbian evolved and thus1, Bringing up of new character, nuances and fluid character.

By this, the court saw such crimes into new lights and the new shackles were created by section 377, which has taken up so many lives and aspiration of the people who wanted to live a free and loved life with a same sex partners, despite having Fundamental Right granted to them by the Constitution in name of Equality, Freedom of choice and Personal liberty, and thus this was too late to recognized this right by the supreme court in 2018, where Section 377 was declared

1 Gaur, KD, Chapter 8, ‘Criminal Law, cases and materials’, 7th edition, Lexis Nexis, 2013

4 unconstitutional2, but what about who ended their lives due to this Breach of their Personal liberty and choices before declaring 377 unconstitutional. Needs an elaborated answer.

This section has been used as a tool by the administration for wrongful confinement of people for extorting money and for personal benefits, and it also been a reason for the acceleration of spread of communicable diseases mainly STD's due to anal sex and oral sex which is most prevalent among the LGBTQ community.3

To understand the section 377, and its implication on society and law and vice versa it is important to understand the core of the law, so it is important to break down the law and understand the genes of the section 377, which was brought about in 1860, by British on the same line of the buggery law of 1565 in Britain.

As Section 377 States: "Unnatural offences: 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.”4

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

The section although not implicitly “defined, " carnal intercourse against the order of nature" has been interpreted as, the offence which includes anal sex, oral sex, and in some case other non- procreative sexual acts, such as Mutual masturbation, thus widening the ambits, and bring them under the definition unnatural offence.”5

Section 377, at its origin, did not responded well to Indian society or on its value or fore most the British colonial government imposed it on India forcefully without considering the wishes of Indians, it reflect only the British Judeo-Christian values of the time as it not include the option of understanding the Indian society Per se, as they did not gave a deep thought into the Indian law

2 Navtej Singh Johar and Ors Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 3 Gaur, KD, Chapter 8, ‘Criminal Law, cases and materials’, 7th edition, Lexis Nexis, 2013 4 Mishra, Geetanjali, reproductive health matters, vol.17, no 34, criminal (November 2009), pp.20-28 5 Gaur, KD, Chapter 8, ‘Criminal Law, cases and materials’, 7th edition, Lexis Nexis, 2013

5 and culture which had a essence of Homosexuality in itself and can be seen from the times of Mahabharata and Ramayana.6

To further add, the colonial legislations and jurist introduced such laws, with no debate or cultural Consultation, and to support the colonial controls. They only believed that their law could inculcate European Morality into Indian society. The agenda being that legislation would punish homosexual as they thought 'native' culture didn’t not punish 'perverse' sex enough, as section 377 was and is, a model law in more ways than one. It was only a colonial attempt by colonial power to set standards of behaviour, both to reform the Indian society and to protect the colonized against moral lapel.7 Thus, based on the base of the 'Moral sanctity' and involving it from the European understanding of religion and not from Indian societal understanding of sexuality and different identifies which have existed from ancient times.

The British empire had a massive expansion from the time they started their voyages and expanded their trade activities, and by such expansion they established their Empire in Asian and other region of the world, thus they successfully established the rule of law according to them, the law that they brought in colonial land dragged a long pre-history behind them.8 The first recorded mention of 'Sodomy' in English law date both to two medieval law called Fleta and Button, which suggested how structure or sex were connected to Christian Europe other consuming Anxieties.9 Thus, the origin of Sodomy law in India, have long history to trace its origin and have been developed on the line of British law.

The main genes of Buggery law goes back to two treaties Fleta and Britton, Fleta which required that “apostate Christian, sources, that the likes should be drawn and burnt”. Those who have connection with Jews and Jewesses or are guilty of bestiality or sodomy shall be buried alive in the ground, provided they be taken in the act and convicted by lawful and open testimony.10 Britton, meanwhile, ordered a sentence on being upon “sorcerers, sorceresses, renegades,

6 Human rights watch, ‘this alien legacy: the origin of ‘sodomy’ laws in British colonialism’, school of advance study, University of London, Institute of Commonwealth Studies. (2013). 7 Ibid 8 Russle on crime, vol 1, Indian reprint, 2001, pp.735, Kennys outline of criminal law, 19th edition pp. 205 9 Fleta, seu Commentarius Juris Anglicani, was a latin survey of English law producedin Edward 1’s court in 1290 (allegedly written while the out-of-favor author served time in fleet prison, accounting for its name: Richardson and Slayes 1955). 10 Ibid

6 sodomists, and heretics publicly convicted”.11 both treatises have seen 'sodomy' as an offence against god. They have classed it with other offences against rituals and social purity, involving defilement by Jew or apostates. The racial or religious other.

Thus, the British law being of an idea which originated and had influenced from the European thought and understanding, these ideas and law have already existed in Indian society but in a lay man language, and later on came to known as sodomy law and Bestiality in the wide interpretation of Section 377 which finds its idea from Buggery law which can be close reflator it. And buggery law developed at the time of king henry viii who broke from the Catholic church tradition and try to possess a challenge to the church in the 16th century and thus leading to revision much of the country’s common law, as it in 1533 statute of Buggery law, the criminalization of sodomy as a state law rather than church having concern on it.12

Under the name of the detestable and abominable vice of Buggery committed with mankind or beast, it was punished by death.13 The law persisted until 1861, and in India it was Macaulay, who chaired the first law commission of India, made to add section 377 sodomy law in fear of moral infection from the 'native' environment made it urgent to insert anti sodomy provision in the colonial code this was done due to the fear of that the soldiers and colonial administration - particularly those without wives at hand- would turn to sodomy in these decadent, hot surrounding.

To get into the technicalities of the section 377 it is important to understand what section gives out in small words like ‘sodomy’ and ‘Bestiality’ which themselves doesn’t find their place in section, but indirectly infer the same.14 The word 'sodomy' generally devotes equal intercourse by a man with a man or with a woman or with an animal.15 thus, Sodomy can be seen as heterosexual or homosexual. In those cases where the parties are of same sex it will be termed, as homosexual and in those cases where the parties are of opposite sex it will be called as heterosexual.16 One other important notion which also need an attention is this section 377, is that 'consent' doesn't

11 The word buggery derived by the way of the French ‘bourge” from the medieval Bogomil heresy, which flourished in Bulgaria. Again, a sexual and religious (and racial) ‘deviance’ were intimately associated (Bailey 1995, pp. 147-9: Hyde 1970. 12 Ibid 13 Ibid 14 Gaur, KD, Chapter 8, ‘Criminal Law, cases and materials’, 7th edition, Lexis Nexis,2013 15 Human rights watch, ‘this alien legacy: the origin of ‘sodomy’ laws in British colonialism’, school of advance study, University of London, Institute of Commonwealth Studies. (2013). 16 ibid

7 provide a protection as consent unlike rape is not a defence to the change. Another term which is important to understand is Bestiality which means sexual intercourse either by a man or by a woman carnal out in any way with a beast.17 The section is wide enough to include a woman for committing unnatural offence. However, the section is not attracted if the act is done either by a woman with an intimate object. To comply the person with punishment under section 377, Certain ingredients are required to fulfilled, the section requires proof of the following conditions to hold a person liable for the offences viz.

1) “The accused must have carnal intercourse with a man, or a woman or an animal; 2) The act was against the order of the nature. 3) The act was done voluntarily by the accused. 4) There was a proof of penetration.”

Thus, after fulling of such requirement under section 377, section carries as severe a punishment as that of a rape. The punishment may extend to life imprisonment or imprisonment up to 10 years and fine. The Macaulay intention was to protect “the man from sexual assault, as there was no separate penal code provision which addressed rape on man (section 375) which was only restricted to a man's rape of a women.”18 No definite criminal offence for a man's sexual assault on another man; it was simply clubbed with consensual offence in section 377, further section 377 also had no separate provision for stopping an adult male from having sexual relation with male children.19 That offence, which was too contained in 377 without disfunction, thus Macaulay was not looking at it from one direction, but from many, as he involved it as a tool of protecting women, man and animal at the same time from any form of sexual intercourse.20

However simultaneously in Britain in 1885, during a amendment of laws on the 'protection of women' and girls and the suppression of prostitution and Brothel. Henry Labouchere a member of parliament, introduced an amendment to protect women and girl and unrelatedly to the see here is that it was all most ruled out of order which stated that “any male person who in public or private commits or is a party to the commission of or procure or attempts to procure the commission by

17 Ibid 18 Human rights watch, ‘this alien legacy: the origin of ‘sodomy’ laws in British colonialism’, school of advance study, University of London, Institute of Commonwealth Studies. (2013). 19 Ibid 20 Ibid

8 any male person of any act of gross un with another male person”.21 Which further defined the 'gross indecency' which includes virtually all kind of non-penetrative sexual acts between two men. This law acknowledged that two men could practice many other sexual acts other than 'sodomy'.22Thus, proving that the India penal code was barred on its experiment on the England, and thus did not focusing on the practice, custom and law present in Indian, as the Labouchere's provision was lately incorporated int the Indian Penal code itself. However, subsequent colonial codes incorporated revisions of it and to entered it can be said that Indian Penal Code became the model for the British Colonies legal systems throughout most of Asia and African. But the law was not stagnant, as each British level took over the newer version, as legal historian writers says that improved and new model with updated version were brought in which resulted in the latest model of an enactment.23

Thus the British evolution of section 377 was in a Nutshell which took place on the British mainland, and was plainly applied in Indian subcontinent, mainly from above, thus lacking the India touch and not taking into consideration various social factors which needed to be taken into account for the construction of such law which would affect the heterogeneity of the subcontinent, thus subcontinent remained the ground of experiment for the British law which were further improvised and put into place in other British territory beyond India, like Africa, Singapore and Australia which contempt the classes of citizen living in their own land under British rule as legal Scholar Dan Kahan, writes that sodomy laws, even when unenforced, express contempt for the certain classes of citizens.24 This contempt was not simply symbolized.

Ryan Goodman also conducted an exhaustive research work which was based on interviews with lesbian and gay in South Africa before there the sodomy laws were repealed, sound that “the statues hand multiple 'micro-level' effects which was created by the British law”. The impact of such laws was independent of occasions where the law is actually enforced. To the country were even without any direct enforcement, the law presence on the broke still announces in equality, increase vulnerably and reinforces 2nd class statue in alliance of life. To further added Goodman says that “the state relationship between the lesbian and gay individuals under any regime of

21 Ibid 22 Ibid 23 Moore, R.I, ‘The Formation of a Persecuting Society’ (London: Blackwell),(1987) 24 Kahan, D.M, ‘The secret ambition of deterrence’, Harvard Law Review 113, p. 413., (1999)

9 sodomy laws constructed a disposal structure of observation and surveillance. The public is quite sensitive to the visibility of lesbians and gays as social and legal constructed orders.”25The report further suggests that the sodomy law in British era ultimately became not only punishable for particular acts, but broader event of social control.26 They started it as an invaders imposition an alien framework to subdue subject populations- and have morphed overtime into alleged minors of a supposedly origin any moral sense.27

Likewise how the sodomy law section 377 developed in the Backdrop of the British Rule in India, which hardly drew from the Indian culture, and Religious law, and was merely a law which was imposed from the above and developed on the parallel line of the British law in England which had great influence from the religious law of England, as such being the great intruder in this, simultaneously the law came into its full form, but the law was only a one factor, other being on the same page were the social factor and Courts Interpretation of Law according to the constitutional morality in public domain as law does not develop in a vacuum, the social, economic and political factors plays an important role in its development throughout the country.28

The other two chapter will focus on how the social factor and legal interpretation of law by the court, affected the life of a minority population that is LGBTQ's who were treated with discrimination and vulnerability despite of the constitution coming into force in 1950, recognizing freedom, equality and Right to personal life, which didn’t able to fulfil the demand of this community that is LGBTQ's who had their own identity and individuality from the Ancient time in India.

25 Goodman, R, ‘Beyond the enforcement principle: sodomy laws, social norms and social Panoptics’, California Law Review 89 (3), pp. 643–740. (2001) 26 Ibid 27 Human rights watch, ‘this alien legacy: the origin of ‘sodomy’ laws in British colonialism’, school of advance study, University of London, Institute of Commonwealth Studies. (2013). 28 Ibid

10

CHAPTER THREE

SOCIALOGICAL PROSPECTIVE OF HOMOSEXUALITY

Heterogeneity is the centric point of any Society, as society cannot be monotonous as there are various types of community which constitute a society which not only differs on the cultural and linguistic line but also divided into male and females being the central idea of any society, but that is just a social construct created by society itself thus failing to recognize the presence of homosexual and various other sexual orientation present in the society, as heterosexual intercourse is a main element to the birth control in society. But society is highly heterogeneous and thus we cannot forget about the people who have different sexuality in the LGBTQ community.

Though present society is taking the leap in social movement, and making people not only aware about the LGBTQ community but also wanted to have some kind of a law to protect and promote their civil rights. This is just a one phase of LGBTQ community in Indian society. But the homosexuality can be classified in Indian society into three phases, as this chapter has been divided into three phase and have discussed how these phases in Indian society have seen homosexuality and further gave some kind of acceptance to them and have recognized their place in society. These phases can be divided into:

1. Ancient India 2. Medieval India 3. Modern India

This phase need to be elaborated in later part of this chapter as to give in depth knowledge about the presence of homosexuality in Indian society as generally Indian think that homosexuality being a western phenomenon and therefore not want to accept it, as it being present in the subcontinent from the ancient times, but first of all it is important to look Homosexuality in Indian society

11 through the scope of general acceptance and theories, as society has two views on homosexuality one being the conservative view and second being the progressive view.

The conservative view believes that “homosexuality is an abbreviation; the orientation is a disorder and the behaviours pathological.”1 The progressive believes that “homosexuality is a normal variation in any human condition and that homosexual behaviour is natural.” Conservative thinkers further argue “that an individual’s upbringing can directly influence sexual orientation. Also tied in with many of their debates is the morality of homosexuality.”2 Sexual orientation is an experience in complex ways, which are undoubtedly inference by both biological and social factor. This is a general understanding of the homosexuality in any society to name so.3

The birth of human go backs to ancient times, so the human history, as civilization does not evolve in isolation, but all starts with human interaction and collision, and thus leading to creation of society with norms and culture, and these norms at first place are religious in nature and later on became law of the land or any society. Thus the first phase of social acceptance of homosexuality started with coming of religion in India, on the first place and evolution of religion of second place and thus to keep our focus how homosexuality was embodied in religion we have to look into the first phase that is ancient period of Indian society, at that time when society was at initials level deciding the fate of people who were the people without any identity social or religious, and the religious activities in ancient India brought so much to the people that they not only came to known as Hindu, Muslim, Christian and Buddhism, Sikh and Jain, but which further not only attributed some of the main religion to Indian people in ancient India but also divided the society on various gender construct and identities.

1Daby, Colin, 2007, Political Economical and the Closet: Heteronormativity feminist Economics, Feminist Economics, Vol.13, No. 2 pp.29-53. 2Ibid 3Ibid

12

3.1 HOMOSEXUALITY AND ANCIENT INDIA

Religion plays an important role in shaping the ideology, belief, customs, traditions and to some extent overall outlook of an individual, command, as well as country and to one extent, religion lays down the rules of morality.4 Further, Morality tries to lay down rule of sexuality and cruelty and sexuality further classifies behaviour as normative and non-normative.5 Homosexuality is considered as non-normative belonging and geneses for their belief is that all major religion practised in the world are against homosexuality but which is not true, and religious text are most important source to under homosexuality in ancient India, as religious text have survived the test of time and which can tell us about how ancient society dealt with homosexuality.

In ancient India, Hinduism, Buddhism and Jainism have been the starting point of the Indian society, and Islam only came up in 8th century in India, thus Indian society was based on Hindu, Buddhism and Jainism text. These, religion has some kind of tolerance to homosexuality, and having traces for the acceptance of homosexuality to some extent which was over looked by the British while framing the Indian Penal code in 1860 and bring section 377 into being.

3.1.1 Homosexuality and Hinduism

Hinduism is one of most popular religion in India and have grown to an extent, having accommodating a large number people and being a large influence in the life of Indian and affecting their life thus it has also not left homosexuality untouched various instance in Ancient India can be seen, through their presence and acceptancy had been in limited sense, as Dharam shastra and Dharam sutras have put no express rules or teachings on homosexuality. Rig-Vedas, is one of the four canonical sacred texts of Hinduism says “Vikruti Evam Prakriti.” What seem unnatural is also natured, which some scholars believing recognize the cyclical constancy of homosexual trans sexual dimension of human life, like all forms of universal diversities.6

4Singh Vipul, ‘Interpreting medieval India’, volume 1,’early medieval, Delhi sultanate and regions (circa 750-1550) 5Ibid 6 Kavi, Ashok how ‘Expose the Hindu Taliban, http//www.gaybombay.org/html/index. (23 April 2019)

13

Another unique form of the Hindu God Shiva who is the main deity in Hindu Religion, and the presence of Shiva as deity goes back to Indus valley civilization, and later on can be seen in four of Ardhanarishwar, with a dual male and female nature.7One of evidence can be seen from sculpture available in the elephant caves near Mumbai. The scripture is itself unique as Ardhanarishwar is portrayed with the secondary similar characterizes of both sexes. The Ardhanarishwar is the culture ideal which make a Hindu involved deity known of its own but as a couple.

A part from Ardhanarishwar homosexual and transgender features Hindus common identity with worship and Hindu deities can be connected with other deities as well, as Aravan (a hero whom Krishna married after becoming a women)8; Ayyappa (a God born from the union of Shiva and Mohini, a female incarnation of Vishnu). Bhachura Devi (a Hindu goddess connected with transsexuality and eunuchism) and Karthikey to name some.9These features of Hindu god and goddesses show that the ancient society have some kind of acceptance toward homosexuality.

As various Vedas and Religious texts have shown about the presence of Homosexuality in India which was prevalent in sub-continents, another major source of Homosexuality come from the two famous mythology ‘Ramayana and Mahabharata’ as they depict, how the society was in ancient time and are considered as a good source.

‘Ramayana’ the story of Rama is one of the most celebrated text in Hinduism, as there are 24,000 verse of Ramayana, different version of Ramayana and its story, as some of version of the Kuthila Ramayana, the most popular Bengali text, which give an interesting narrative of queens giving birth to a child together, and the child was named as Bhagirath who is credited with bringing the Ganges river to down to earth through his abstention thus attributing him with the great states in Hindu traditions.10and second is Mahabharata.

As in Mahabharata, one the most famous character ‘Arjuna’ had to live as a third gender for a year due to a curse given to him. Another major character in Mahabharata, is of a third gender Shikhandi, who was born female, but raised as a boy. When Shikhandi comes to an age and get

7Pande, Alka ‘Ardhanareshawar: The Androgyne, Rupa Press.(2008) 8Kakkar, Sudhir. “We involve a duty not on its (2008) but as a couple. P.11 Hindustan Times, 13 March 2011 9 Magoo. I.K. ‘Sexual offence and homosexuality in India, Capital law house (2009) 10Ibid

14 married, Shikhandi’s wife soon come to know that Shikhandi was a woman like herself, referring him.11Both the text was very much prevalent in ancient and contemporary India and thus having their influences on the life of people.

The Manusmriti, which is one of the oldest codes of conduct that were proposed to be followed by a Hindu, does includes some mention of homosexual practice, but ones something which meant to regulate the Hindu. But Manusmriti does not accepted homosexuality rather provides punishments for such instance and homosexual character. But in parts it recognized the biological origin of third gender.12 Thus, giving some sanctity to homosexuality.

Another well-known texts in Hindu religious law that was ‘Kama Sutra’ widely and worldly accepted and practiced which dealt with Kama or desire of all kinds, particularly sexual devotees, which in Hindu thought is one of the four narrative and spiritual goals of life, 4thcentury text talks and describe homosexual practice in several places as well as a rage of sex and gender types.13

Though Hindu religion shows various instance towards the acceptance of Homosexuality but in limited ways, but have not denied it completely as various Hindu writers writes on Homosexuality in Hindu tradition, as historian Ruth Vanila, and Saleem Kidrooil in their book ‘Same-Sex live in India : Reading from literature and history, writer that Hindu texts have discussed about the same- sex desire for the first time in elaborated manner, in tone ranging from critical to non-judgmental to playful and celebratory.14 Another historian on Mythology Devadutt Pattnaik summarized that the place of homosexuality in Hindu literary as “Homosexuality was not part of the mainstream in Hinduism; its existence was acknowledged but not approved.”15

3.1.2 Homosexuality and Buddhism

Buddhism after Hinduism, saw an immense rise in sub-continent in 3rd century at the time of Mauryan empire, and was a widespread religion, not only followed by Royal family but by the

11Ibid 12Manusmriti, chapter 3 verse 49 13Dhanielou, Alain. ‘The complete Kamasutra, Rochester, VT, Park Street Press,1994 14Ruth, Vanila& Saleem Kidroat, ‘Same-sex Love in India: reading from literature and history’pp.25 (2001 15Patnnaik, Devdutt ‘Homosexuality in Ancient of India’,(2001)

15 various section of society as well. Thus, Buddhism having its own terminology towards the Homosexuality and its acceptance in the society.

In early Buddhist text known as ‘Sutras’ lays nothing “accepted or un-accepted sexual conduct.” Among the various forms of Buddhism in India, it was believed “Buddhist monks are expected to live the life of celibacy meaning abstinence from any type of sex. It is further interesting to note here that there is no explicit rule prohibit those with a homosexual orientation from monastic life.16 Which was a general phenomenon in Buddhism. Among Buddhist there is a wide range of opinion about homosexuality. But the core Buddhist teaching lays that several enjoyment and desire in general and sexual pleasure in particulars, one his chances to enlightens and inferior in to pleasure.

One of the important Buddhist text, that is Vinaya, mentions that “male monks are explicitly forbidden from having sexual relation with any four gender: male, female, Ubhatornyanjanka17and Paaka.”18it can be said Buddhism in Ancient India, partially disapproved homosexuality.

3.1.3 Homosexuality and Islam

Islam came to India in 8th century, by the conquest of the Muslim king Muhammad Qasim in 753 A.D.19 but full fledge Islamic tradition came in India in Medieval century with the establishment of Delhi Sultanate. But the presence of Islam was already felt in India and the subject of Homosexuality did not remained untouched. Thus, Islam being a monotheistic and adiabatic religion mainly articulated by the Qurans, a book which is considered by its adherent to be the verbal words of Gods and by the teaching of Mohammed and being the main source but not the single some of rule of law for the Muslim population other being the Hadiath. In case of the Homosexuality the thought of religious teacher or their opinion differs between main school of Islamic jurisprudence, though the common consensus being that homosexuality is worth of severe punishment.

16A.L. Desilva Homosexuality and “Theravada Buddhism” buddha net.com 17The world “Ubhatovyanjanaka”, mean people who have both male and female characteristic is such as, hermaphrodites. 18Paaka means a person referred as socially stigmatized class of promiscuous, passive homosexuals, prostitutes or persons having physical or psychological abnormalities. 19Singh Vipul, ‘Interpreting medieval India’, volume 1,’early medieval, Delhi sultanate and regions (circa 750-1550)

16

The Quran cites the narratives of people of “Lut also known as the people of Sodom”, and “Gomorrah, destroyed by the wrath of Allah they engaged in ‘lustful’ carnal between men.”20The Quran contains seven main references to the people of “Lut”, the biblical terms meaning of which is the resident of Sodom and Gomorrah and there destruction by Allah is associated explicitly with the several practices. Thus, one paragraphs or passage in Quran is dedicated on Homosexuality which can be interpreted as prescribing a legal portion towards homosexual behavior.21Hadiath also prescribes punishment for Homosexuality as Ibna-al-jawaji, a Muslim jurist claims that “Mohammed has used sodomites in several Hadiath and recommends the death penalty for both the active and the present partner in same sex acts.”22

Besides the Hadiath and Quran tradition, Islamic laws can be further interpreted through different schools, like Hanafi school of thought, “the Homosexuality is first punished through harsh beating, and if he/she repeats the act, the death penalty is to be applied and as for the Shafi school of thought, the homosexual receives the same punishment as adultery (if he/she) is married or fornication (if not married)”. This means that, if the homosexual is married to an counterpart, he/she is stone to death, while if images he/she is whipped 100 times. Thus, Islamic view mention of homosexuality and the religion as highly intolerant to the practices of Homosexuality. Though in Ancient India it was only the beginning of Islamic religion in the 8th century, but the Islamic tradition became stronger at the time of Delhi Sultanate and Mughal Empire in Medieval India.23 Thus, having their own repercussion towards Homosexual.

Though religious sources were considered as one of the important sources for understanding the society and especially the attitude of society towards the acceptance of Homosexuality in Indian society. Other source which shows the homosexuality had remained an important facet of Indian society, As one of Indian Ancient Medical texts such as Shustra Samhita, explain the reasons for different sexual behaviours and genders24 and another important text being Karma Sutra, which not only talks about various sex position for the Sexual act of the heterosexual people but also talks

20Quran 4:15-16If any of women are guilty of lewdness, take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death to 21Jim Wafer, ‘Mohammed and Male Homosexuality “in Stephen O. Murray, will ‘roscoe, Islamic Homosexuality’s: Culture, History and Literature, New York University Press, 1997 P. 89. 22Ibid 23Singh Vipul, ‘Interpreting medieval India’, volume 1,’early medieval, Delhi sultanate and regions (circa 750-15 24Wilhelm, Amara Das, Tritiya Prakriti: People of the third sex, pp. 267, 334, Philadelphia, PA: Xlibris Corporation, 2003.

17 various sexual position of Homosexuals. Another major component of source for homosexuality can be seen through the Art and Architecture as, the Khajuraho temple a widely celebrate temple which showcase various sexual position visual, also shows about sexual position of homosexual.

3.2. HOMOSEXUALITY AND MEDIEVAL INDIA

As Ancient Society show some acceptance towards homosexuality and there were some historical, mythologies and religious evidence to support it, but Medieval Society was dominated by the Islamic tradition on first place that it was Delhi sultanate ruled in early medieval time and Mughal ruled in India in later medieval India, and later on Medieval India saw the coming of Christianity through the European voyage. Who on first instance tried to influence people by spreading Christianity and wanted to teach the Catholic practiced in European main land, which later on in Modern time came into form of full fledge British Rule who applied their own rule of code and conduct to the Indian society.

There is not much evidence to show the acceptability of Homosexuality in Medieval time or to say the presence of Homosexuality in Indian society, second statement can be easily ruled out as homosexuality is not a diseases, which can disappear, and some sort of evidence of presence of homosexuality can be seen in Royal family of the ruler of Delhi Sultanate; as it can be said that homosexuality was prevalent among the ruling classes of the Indian society. Perhaps the foremost speculations of homosexual love between Alauddin Khilji, the 13th century sultan, and his slave Mir Kafur. The Sultan bestowed on Kafur the title‘Malik naib’ (Deputy Ruler) which showed how powerful, he was in the Royal Court as Ziauddin Barani, the court historian of a later Sultan, cements the way Kafur’s beauty enraptured Alauddin Khalji.25

Another great example of Homosexuality prevalent in Royal family has been noted down by Ziauddin Barani, the Alauddin son Qutub-al-din ascended the throne, who had an immediate liking for the young Parwari named Hassan whose he quickly promoted to the position of wazir and

25http:/madrascourier.com/insight/homosexuality-in-Islam-India, 18/03/19, 11.00 am

18

“plunged into sensual indulgenced openly and publicly, by night and by day.26 Hasan brother, Hesamuddin was also the Sultan’s sexual slave who was appointed as the Governor of Gujrat.27

Another major source of presence of homosexuality in Medieval Indian come from the writing of Amir Khusrau, who was a very famous poet across the subcontinent. In one poem, Khusrau dressed up as a woman on the religious festival of Basant Panchami to please his ‘Pir’, who is depressed about his nephew death.

Going beyond from the Delhi Sultanate to the Mughal period, the first Mughal Ruler who established the Mughal Emperor in Indian was Babar, who was taken by the Charm of aboy named Baburi. In the ‘Baburnama’ Emperor wrote - “Even his name was amazingly appropriate, occasionally Baburi came to me but I was so bashful that I could not look at him in the face, much less freely converse with him. One day I found myself face to face with Baburi. I was so ashamed I almost need to piece.”28Another evidence from Mughal became comes from Akbar reign, one of official Aliquli Khan Zanan War infatuated with a carnal diversion.

As Islam has stemmed itself in India, there was an advancement of another religion in India, Christianity which came through voyages and thus, Christian Priest came to India, so that they can influence people thus it is important to look homosexual in Christian tradition. The various Christian thought varies in their approach to homosexuality, from “condemning homosexual acts as sinful though being divided on the issue, to seeing it as morally acceptance”. The ultimate source of Christianity, is Bible and to look it closely it is noteworthy to state here that “god forbids homosexual behavior and not strictly homosexuality”. Being homosexual is a state or an orientation, a person could engage in homosexual acts covered it as a heterosexual orientation, as Bible in ferment at a view, their differed denomination which look it at differently as Eastern Orthodox Churches,29 like the Catholic Church condemn only homosexual acts. Catholic churches views “homosexuality as sinful as well as any other sexual act not related to procreation by couple jointly under the sacrament of matrimony”.

26Ibid 27Ibid 28“Cathechism of the catholic church, para 2357 catholic church”, soborromeo.org 18/03/19, 11.30 am 29The Oxford dictionary of Byzantium, New York, Oxford University pp. 945-946, 2005

19

3.3 HOMOSEXUALITY AND MODERN INDIA

The break from colonial era and India becoming an independent country in 1947, the country was still having colonial hangover, and thus practicing the British norms in term of royal code and practicing it through criminal procedure, and carrying the burden of section 377, and was thus the law on homosexuality has took a colour of morality than a British law.

As country was on the path of development, the society was growing at it pace with technological development and advancement, thus leading to the development of mass media having its influence on Indian society, as Bollywood came into existence and expanding the horizon of thinking through its films on the subjects of homosexuality, various newspaper making their marks, radio show, and coming of televisions and computer becoming a great influence on the Indian society after 1991, as liberalization of Indian Economic paved the way for advancement in technology affecting the society at large, and thus homosexuality did not remain untouched.

As homosexuality was always there in Indian society but did not find a right place in a civilized society which was culturally diverse in every sense and homosexuality being in the present society being treated like the practice of tantrism which was practiced but least talked, the first major wide acknowledgement to the subject of homosexuality came up with the case of Tihar jail, as the new was published that the imitates of Tihar jail were having sex with same partner, and thus, their incidence paved the way for social movement and PIL was filed by the Naz foundation.30 This incident had huge repercussion in the society and thus making people aware of the term gay or the LGBTQ community in large sense which had contemporary origin.

Thus, to elaborate LGBTQ in modern sense and social movement in 1990s gave an impetus to understand the term in itself thus now sex, gender and sexuality is connected. Sex as we understand, is a “biological and anatomical identity of an individual”. The determination of sex can only depend upon biological factors. Gender on other hand, is the “social ‘coating’ on the sex” and sexuality at a very basic level is “desire and desire towards someone else”.31 thus to understand

30Naz foundation V Government of NCT, 2009 SSC Online Del 1762 (2009) 111 DRJ 1 31Saurabh, Sumit, ‘Discipling the ‘desire’: ‘straight’, state and LGBT activism in India’, Sociological, vol. 63, no 3(Sep-Dec 2014), pp. 368-385

20 homosexuality through back drop of 377 in modern period and societal structure it is important to study gender, sex and sexuality, as the they play inter chargeable in format of LGBTQ community, which is a further bifurcation of the society and each having its own meaning attached to it, where the abbreviation LGBT and “L stands for ‘Lesbian, G stands for Gay, B stands for Bisexual, T stands for Trans-gendered people and Inter sex, and sexual minority’ and ‘Q’ at the end devotes queer signifying that ‘every new entail fixes as an ‘Identity’ a form of sexual desire and behaviour.”32

The movie has been an integral part of Indian society and thus having a huge Impact on society and the impact have been on the homosexuality as well, through the movie initially it saw homosexuality character in a light of a comedy character but later on there has been changes over a period of time, where the movie, has evolved on the similar path as of the Indian society.

First noted work on the subject of homosexuality is the film ‘Fire,’ the first main-stream film in India depicting same-sex love among the women. The film was based on Lesbian Love, released in November 1998, and can be seen as a milestone in the LGBTQ discourse in India, which on the one hand, ‘the very repression of same-sex desire between women was deemed to be against the Indian culture and generated organized and violent protest by the Hindu Rightist and on the other hand, it was the first time in India that lesbian openly came out onto the streets of Delhi to demand there claims that homosexuality was not alien to Indian culture, and challenged the state declaration that the phenomenon of lesbian is simply do not exist in India by asserting their deep presence in a public space from ancient time.

The perception of movies has changed from time to time, initially the homosexual character has been used as the comedy character, mainly intended to generate humour among audiences in 2000’s, as in movies like Bol Bachan, student of the year, the homosexual people were merely used as a charter to generate humour but now the scenario has changed as movies industry is becoming sensitive to subject, has evolved an connection to community, as movies are now more interested in depicting the pain and reality of the people belonging to the homosexuality groups movies like Bombay talkies, loev, Aligarh, “Ek Ladki ko Dekha to Aisa Laga”, Kapoor and sons since 1941, and etc., these movie have shown the homosexual people in real sense as they are

32Ibid

21 normal people like so called straight people thus movie industry attributing a sensitiveness to subject of homosexuality and there rights in the society, and further have tried to build an emotional connection to the audience at large and having a huge impact on the society. As it is believed that movies try to depict what society is.

Another medium, which has found a place in the heart of audience, smaller version of movies are the TV series, which has developed more sensitive and emotional attitude towards the LGBT community, as TV series like made in Heaven, all about section 377, leov to name some, have shown that, the reality, emotion and pain which the LGBTQ people goes through, thus trying to make a huge impact on the younger population in a positive way and thus contributing toward the social movement which gained momentum in a bigger way. This by and larger shows us that homosexuality is quite prevalent in India but the attitude of the society need to be changed.

Internet has also been an active medium which have contributed to the social movement, and not only tried to make people aware of homosexuality but also tried to make homosexual aware of their own civil rights and has further developed a sensitive attitude towards the LGBTQ community. As in recent time, the Indian LGBTQ community is very active in the cyber world. Equal Indian alliance is one such internet community which presents itself as a non-profit organization which aims to build a welcoming environment for Indian LGBTs community, principally at college and in the work places.33 There are other online space which also works for the betterment of the LGBTQ community and to name some are Orinam “(which was formed in 2003 and is a “Social and support group”)”, Desi boys is an “gay social networking website whose tagline is gay by birth, proud by choice”, Pink page is another Indian first online “National gay and Lesbian LGBTQ magazine and the media resource”.34 These internet platforms have contributed largely into making a conducive environment for LGBTG community at large.

Thus, these social factors have affected largely in developing social activism and contributing in larger way in declaration of section 377 unconstitutional. Which can be seen in next chapter as social movement or emergence LGBTQ community movement in public domain led to the first infamous case and thus leading its voice against the injustice done to them from the ancient time, as the LGBTQ community had always remained an integral part of the Indian society having some

33Ibid 34Ibid

22 kind of recognition and acceptance, as the Indian society have always patronized the wishes of transsexual at the time of any happy occasion like marriage and birth of any new born child. Thus, the legislature and judiciary failed to take note of the societal presence of homosexuality from ancient time and thus took so long to declare section 377 unconstitutional in Navtej Singh Johar judgement35.

35 Navjet Singh Johar vs Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350

23

CHAPTER 4

REFLECTION OF INDIAN JUDICIARY ON HOMOSEXUALITY

The Society plays one of the important role in deciding what the law should be, but as we have seen in chapter 3 that, Indian society didn’t had a much say in the applicability of Section 377, which was implemented from above by British rules, who were not Indian themselves and thus, law having its nexus in British land, and later on having colonial influence on it, but these laws were so strong in nature that it repercussion can be felt in contemporary India, and only in 2018, section 377 was declared unconstitutional by the Supreme Court of India.

Thus, the rule of law having a inter play with society and body which govern the society and then it applies the laws all together. As chapter three dealt with the society, as we have seen the LGBTQ community having an equal say and presence in Indian society from historical time which gained a will of acceptability. Secondly it is important to look that how courts have interpreted the section 377 from the colonial time to the Navjet Singh Johar12018, which ultimately declared 377 as unconstitutional by upholding the Fundamental Right of the LGBTQ community and leading to a revolution of acceptance toward the community in the Indian Society, but which needed to be done from society mainly a revolution from the below, because the judgement come from the above and thus creating its own pro and cons in the society.

To study, why it took so long for the Indian Judiciary to get rigid of the section 377, it is important to look it from historical perspective were the Indian Court from British time have dealt with section 377, and generally confine their premises on the ground of ‘Morality’ in initial time than moving to the ‘Jurisprudential ground’ and lastly heavily relying on the Constitutional Right ‘Fundamental Rights’ to finally breaking the shackle of Section 377 of IPC in India. The Section

1 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350

24

377 of the IPC was introduced into British India by the British empire with a presumption of a shared Biblical morality.

4.1 PRE-INDEPENDENCE ERA

The historian has speculated that the Britishers had a concern that the sodomy and Gomorrah crimes would increase in the British army as the army not having their wives would encourage the same sex activities in India.2 Thus, this was the first concern which led to the implementation of section 377 in India and the after implementation it is important to look how the judiciary in British rule in India interpreted the section in 377 through cases. Foremost case was the case of queen emperor vs Khaihati of 1884 where the fact was that a eunuch was continuously kept under supervision by the police and even arrest by them on finding that he was dressed as a woman. When he was presented in the court the medical examination showed that there was the “distortion of the orifice of the anus were the shape of trumpet – a mask of a habitual Sodomite”. In this case the crux of enforcing section 377, was that the offence which meant to criminalize is the “the act of Sodomy or people who appear to be likely to commit this offence”.3

Another important case were the two young male were arrested merely on the presumption of committing sodomy was the case of Noshirwan vs Emperor, where the facts of the case is the third person Solomon peeped through the door window that the “two young man both being adult, walking into the house of one of them and further noticed that these two were attempting to commit Sodomy”. Solomon walked into the house where these two didn’t committed any act of sodomy but just presumed that they were trying to commit sodomy and forced them to police station. Later on, court considering that there was no act of sodomy both the men were released from the jail. But the Judge of this case did reprimand one of the men, Reaction as a “despicable” and stated that the “Specimen of humanity for being addicted to the vice of catamite on his own admission here one again we can see an association of the person a catamite, with the act rather than the Act in isolation. But the court didn’t talk about the relevance of this association of the act with person”.4

2 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 3 4 Noshirawn vs. emperor AIR 1934 Sind 206

25

In the case of DP Minawalla vs Emperor, the fact being that “the Minawalla was caught in the act of oral sex with another Man in the back of truck, which was a semi-public space.” Minawalla, further “in a desperate attempt to redeem himself, submitted to a medical examination to convince the court that his oral orifice was not shaped like a ‘funned’, which is a sign of a habitual sodomite.”5 The court while deciding on the facts of medical examination confirmed the conviction of Minawalla by reducing the sentence. And hence the medical examination remained on the important factor of the cases related to section 377 giving it plain meaning to it.

Bapoji Bhatt case, the case where the petitioner was charged under the section of 377, on the “allegation on him of oral sex with minor because there was no law at that point of time which dealt with sexual offences on the minors”. Thus, dur to the absence of any law other than section 377 the petitioner was charged under it, as the section did not distinguish between consensual and non-consensual sex. The court held that “after finding the definition of ‘carnal intercourse against the order of nature’ could not extended to include the act of oral sex and therefore dismissed the case as ‘the act must be in that part where sodomy is usually committed’ and therefore oral sex was exclude from Section 377 and Sodomy became the defining feature of Section 377, even the very word is absent in the provision and restricted to the scope of 377 to oral intercourse.”6

The decision of Khanu vs Emperor widened the horizon of Section 377, as to the fact of the case involve “a minor who was forcefully locked up and concede into performing an oral sex on an older man”, and thus making Khanu case as one of the important case as 40 years after Bapoji case, the court held that “the scope of Section 377 is not limited to ‘coitus per anum’ and was extended to ‘coitus per os’ and therefore concluded that ‘Sur of Gomorrah is no less end carnal intercourse than the Sin of Sodom, in its simplest sense, oral sex was also included in ‘unnatural offence’ under Section 377.”7 Therefore, the order of nature was the principle used by the court for the Khanu case as, where “the ‘conception of human beings’ became ‘the natural object of

5 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 6 Government vs. Bapoji Bhatt (1884 (7) Mysore LR 280) 7 Khanu vs. Emperor 1925 Sind 286

26 carnal intercourse’.” Then court focuses on “oral sex as a crime as it does not lead to procreation and worse act compared to bestiality.”8

These cases of the colonial era, where the court, were just applying the plain meaning to the Section of 377, and trying to widen the scope of the Section 377, as in the case of Bapoji, the court declared, that ‘unnatural offence did not include ‘oral sex’ in its definition but it did strengthen the Sodomy but later on ‘oral sex’ was also included in Khanu as an unnatural offence under Section 377, whereas earlier case of Khairati, Noshirwara and Minwalla largely dealt with idea of “Bodies mon lead with Seger” and appearance that indicates the possibilities of committing Sodomy, and thus, section was not only used against homosexual who are actually caught in the act of sex same activities, but also those who gave an appearance of being homosexual and therefore, likely to commit the Act.9 The court in the simplest sense in colonial era just applied two essential parameters under Section 377, to define a offence:

a) “Existence of penetrative enter course with an orifice. b) Impossibility of conception, thus against the order of nature.”

Thus, the court were just applying plain meaning to law, and were not looking to the right of the people from Human Right perspective, and at that time there was no constitutional right to support such community under British Regime. The court did not recognise, the principle of ‘harm principle’, as some of the case of ‘Sodomy’ or ‘Oral sex’ were confined to the private space of individual.

4.2 POST INDEPENDENCE ERA

Later on, as the power was transferred by the Britishers, and Indian became independence in 1947 and constitution came into force in 1950, there was a mild shift in the courts approach to such

8 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 9 Ibid

27 cases as constitution came into force, but such change only remained in writing, however, the system which became aggressive toward LGBTQ community on the grounds of ‘morality’.

In Lohana Vasantlal and other Vs the State 1968, Gujarat, the fact of case “deals with an appeal where an oral sex was committed on an underage boy”. The court looking on this subject in “this case devised a test of ‘imitative’ sexual intercourse, that oral sex was imitative of anal sex in terms of penetration, orifice, enclose and sexual pleasures therefore similar to anal sex worthy of the punishment under Section 37710”, But the court in this case “overruled the Khanu’s approach of ‘procreation’, but still considered oral sex to be a criminal offence because of the sheer in appropriate of the act”.

The ‘imitative’ test was further applied in state of Kerala vs K. Govindan, where thigh sex was also added as an attributed to the unnatural offence. The court “applied imitative test where ‘the male organ is inserted’ or ‘thrust’ between the thighs, there is penetration to constitutive unnatural offence.”11 The court in this case held that “the important thing here it not the coercive element of the sexual activity, which would do justice to the fact of the case, but the ability of the act to be accommodate within the meaning of ‘carnal intercourse against the order of nature’”.12

Fazal Rab Choudhary V State of Bihar, the court further developed a concept “of perversity which was heavily borrowed from the “American law” with aid from the writing of Havelock Ellis and corpus Juris secundm, defining ‘sexual perversity’ as an ‘unnatural conduct performed for the purpose of sexual satisfaction both of the active and passive partner.”13 This case while dealing with an application for one Legal the sentences for conviction, the SC of India held that “an offence under 377 implies ‘Sexual perversity’”. The court while discussing the case in depth held that “there are growing linkage between homosexuality sans a discussion on private space for consensual sexual acts which was solidified in the case of Pooran Ram Vs State of Rajasthan where

10 Lohana Vasantlal and others vs The State AIR 1983 (SC) 323 11 State of Kerala vs. K Govindan (1969) CriLJ 818 12 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 13 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823, Fazal Rab Choudhary V State of Bihar AIR 1983 (SC) 323

28 homosexual was equated with a rapist.”14 The court in Pooran Ram held “that ‘perversity’ that leads to sexual offence may result either in ‘homosexuality or in the commission of rape.”

The court in many cases in post-independence India, have recognised the presence of homosexuality in India, and especially in Prison, as the judges have recorded “the presence of homosexuality and the expending possibilities of homosexual sex as a serious aggravating factor to the detreating prison condition”. The Justice Krishna Iyer, in the case of Lingala Vijaykumar Vs Public prosecutor, Andhra Pradesh, the case which reflected on the condition of prison stated that “There adolescents where ushered into jails with sex – starved ‘Lepers” sprinkled about, become homosexual offences with noctule dog fights.”15 The quote, consistent with justice Iyer unique style, “is extremely reflective of homosexuality are perceived by the Indian Judiciary”. Thus, there are case merely strengthening the law, and giving ultimate power to authority like Police, to register false cases for extorting money.16 The judiciary neglected the fact that there should be some standard for the private affair, which can be covered through ‘harm principle’ firstly, secondly the court are not taking record of health and medical condition of the LGBTQ community, as there is considerable rise of STD’s and AID within the community, thirdly as there is no consideration of Human Right. Thirdly, the court failed to recognised such rights of LGBTQ community and fourthly the court over looked the Indian constitution which provide equality, freedom and personal liberty of each and every individual as being citizen of India.17

4.2(1) PRE NAZ-FOUNDATION CASES

As there was considerable rise in social activities and platform, there was considerable rise in the social movement, which took centre stage while recognising the rights of homosexual as an individual, who wanted there right, and thus, social movement contributed to spread awareness about homosexuality being normal, this was further strengthen, by two cases which took place in 2006, and the nexus of these cases was the city of Lucknow which received much publicity positive

14 Pooran Ram Vs State of Rajasthan 2001 CriLJ 91 15 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 16 Ibid 17 Mishra, Geetanjali, reproductive health matters, vol.17, no 34, criminal (November 2009), pp.20-28

29 and negative at the same time, making people aware of relevance of the subject to the extent that they highlighted the shift in the cases of Section 377 – “the criminalisation of homosexually on the basis of associated acts such as the distribution of condoms for same sex relation in 2001 and attempt to meet other gay men over internet in 2006”.18

The first incidence of 2001, in Lucknow under controversy was that the gay men were lurking in a well-known public park and the NGO’s were running condom distribution campaigns for MSM, raided officers of 2 NGO’s. So due to this act of distribution of condom led to the arrest of the NGO workers under Section 377 along with other charges of criminal conspiracy, abetment and obscenity.19 Where there was no evidence of Sodomy and second incidence was of 2006 where once again police arrested four men in Lucknow under Section 377 for allegedly having sex in a park. But there was no evidence of public sex, as investigation conducted shown no proof, but matter gained public eyes nationally and internationally. These Lucknow incidence show us that “mere existence of Section 377 even if it cannot and is not being enforced in prosecuting sexual acts in private adds a certain criminality to the daily lives of homosexual men and puts them under the gaze of the law and a constant threat of moral terrorism.”20 All these case from Khatri to Lucknow incidence, the Indian courts need to recognise that they cannot permit the state to continue to refuse that existence of people with same sex desire in this culturally and diverse country. Thus, there came up with the Naz foundation case, where High Court of Delhi declared 377 unconstitutional, but it required a huge contribution of the NGO and people who were under the Radar due to section 377. The Naz foundation upfronted the reality of sex (STD’s) among the LGBTQ community, as they were having sex within the save sex group increasing tendency of having the STD and AID. Thus, it was required by the court to declare 377 unconstitutional.

Before Naz case, a attempt was made by ABVA (AIDS Bhedhbhava Virodhi Andolan) where they filed a petition against 377 in Delhi High Court, for the repeal of Section 377, in 1994, on the grounds that it violated the constitutional Rights to privacy.21 The case withered, however as the petition did not come up for hearing until 2001, as a non-funded group was run-entirely by people,

18 Gupta, Alok, ‘Section 377 and the dignity of Indian Homosexuals’, Economic and Political weekly, vol. 41 (Nov. 18-24, 2006), pp. 4815-4823 19 Ibid 20Ibid 21 Mishra, Geetanjali, reproductive health matters, vol.17, no 34, criminal (November 2009), pp.20-28

30 who volunteered freely did not able to employee a lawyer, and were not able to appeal in the court and the case was dismissed without the knowledge of the NGO.

4.2(2) NAZ FOUNDATION CASE

After ABVA petition failed, the next major attempt to challenge the continuality of section 377 was made by Naz foundation India trust, based in Delhi, whose worker suffered harassment during HIV education campaigns among marginalised communities, and thus the NGO was joined up by various lawyer collectively. They together filed a petition in Delhi High Court “not to repeal 377 as a whole but to read it down to include private consensual sex between adults, thus including the harm principle, as the consensual sex in private place did not affect the community at large, and further the petition challenged section 377’s violation of four fundamental rights guaranteed by the Indian constitution.”22 These rights including Firstly, the right to equality before the law (Article 14), since section 377 dis-criminated against particular groups; the right to be free from sex discrimination (Article 15) since the law primary targets homosexual sex: secondly the right of fundamental liberties (Article 19); and thirdly, the right to life and privacy (Article 21), since Section 377 implies impeding HIV variation activities and includes upon the private consensual sex of adults. Thus, the constitutional right became a batting point for the petition to de root section 377, but it was too long to do so, as no one before this tried to declare 377 unconstitutional on constitutional basis, as constitutions came up in 1950 which recognised equal right to every individual irrespective of difference caste, creed, religion and community.

The petition was dismissed, because the Naz foundation was not personally aggrieved by Section 377 and had no locus standi in the case. The lawyer and Naz foundation asked the Supreme Court to look at the dismissal of the petition. The Supreme Court ordered that the ground for dismissal were not valid and asked the Delhi High Court to hear the case. However, this petition gained the support of various organisation which were working for the betterment of gay community. But the Indian government remained silent to the issue.

Importantly, the petition filed by the Naz foundation “did not focus on issues of ‘morality’ or what constitute “natural sex” instead by barging consent to the fore, the petition highlights the

22 Puri, J. ‘Sexualizing the State: Sodomy, civil liberties and the IPC. In contesting nation: gender violence in south Asia, 2009.

31 discrepancies between 377 and guarantees in Indian constitution to respect privacy, liberty and non-discrimination.”23 The High Court by declaring 377 unconstitutional recognised this contradiction, declares that “the influences that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognises a role in society for everyone therefore, these perceived by the majority of ‘deviants’ or different are not on that score included ostracised!”24 Thus recognising the fats that there is always a presence of homosexuality in the subcontinent and constitutional rights are attributed to every individual irrespective of sexual orientation or minority. The judgement gained a wide spread mixed response from all corner and was the main headline of all the newspaper nationally or internationally, as The UNAIDS hailed the verdict as a mental measure for HIV protection in the country, where as the NGO’s were hailing the judgement, on other side the politicians were criticizing the judgement on the moral ground, as in The Hindu25, MA Shaikh Abdullah said “‘veiled attempt to legitimate the concept of homosexuality is unacceptable” and expressed concern about the verdicts effects on India’s ‘social fabric’”. The head of the country largest mosque said “the ruling is absolutely wrong”. We will not accept any such law.26 The Delhi Unit of Hindu Fundamental Vishwa Hindu Parishad complained that “it is against the culture and family system in India and will result in the spread of a number of closed27.”

But ruling had huge implication, as it encouraged more health measure and practising among the Homosexual firstly and secondly it encourage the formation of new and more NGO’s working for the welfare of sexual minorities, who must ensure that their activities can work free from police harassments and their access to resources is equal to that of NGO’s working in other areas.28

The Naz foundation, case is a big step for sexuality rights, as Ex-Attorney general in a public debate in Delhi said that, “first the judgement which had moved from the debates on sexuality which further moves away from the idea of public morality to one of constitutional morality”. Second it has “rearranged the notion of harm.” “The question was no longer whether homosexuality “harmed” abstract notion of family values and social fabric but about the provision of 377 had harmed members of the LGBTQ community by marginalized, oppressing and

23 Mishra, Geetanjali, reproductive health matters, vol.17, no 34, criminal (November 2009), pp.20-28 24 Naz foundation V Government of NCT of Delhi, 2009 SSC Online Del 1762 (2009) 111 DRJ 1 25 ‘Section 377: Supreme Court deliver to High court judgement’, The Hindu 2009. 26 ‘Gay sex decriminalizing in India’, BBC News 2, July 2009. 27 Goel Panel discussion on Section 377 High court Ruling, 23 July 2009. 28 ‘Religious leader opposes repeal of Section 377’, Indian Express, 28 June 2009.

32 exploiting them”, lastly, the most important, “the scope of judgement has tried to address the LGBTQ issue which includes minorities as well.”29

4.2(3) POST NAZ FOUNDATION CASES

In India lesbian, gay, bisexual and transgender community and other sexual minorities always expected the Supreme Court to uphold the judgement on homosexuality and the same was felt in 2009 judgment of the Delhi High Court decriminalizing homosexuality, as the Naz foundation case on declaring section 377 unconstitutional was challenged by the various local groups in India like religious bodies who were the co-petitioner in the case of Suresh Kumar Kaushal and another Vs Naz Foundation and other AIR 2014 SC 563.

This case of Kaushal was turning point for the LGBTQ community as Supreme Court again criminalized the Act of Homosexuality and restored the Section 377 against wishes of LGBTQ community, here court differed into its approach, as court went against the Judicial activism, which was becoming strong and strong through its progressive judgement, and rather remained confined to its traditional approach by applying the Doctrine of separation of power and democratic mandate given to the legislature by constitution to write a new law and amend it eventually. The court while recognising that “the pre-constitutional laws like Section 377 of the IPC can be declared void only if they are inconsistent with the constitution and the inconsistency is to such extent they abrogate fundamental right of an individual, goes onto involve the principle of constitutionality, stating that the principle applies to pre-constitutional laws that have been adopt by the parliament.”30 The Court further quoted that “the bares its determination action of presumption of constitutionality in the present mater on the fact that the legislature has had a chance to amend the law but has not done so fare.” The court therefore made a statement that “Both pre-constitutional and post-constitutional laws are manifestations of the will of the people through the parliament and are presumed to be constitutions”.31

29 Mishra, Geetanjali, reproductive health matters, vol.17, no 34, criminal (November 2009), pp.20-28 30 Sheikh, Danish and Narrain Siddharth, ‘Struggling for reason: Fundamental Rights and the Wrongs of Supreme court’, Economic and Political weekly, vol. 48, No. 52 (Dec28, 2013), pp. 14-16 31 Ibid

33

The court also made a point, that “if section 377 was required to done away with, the legislature would have done it through amendment, as since the IPC was adopted 1950, parliament has made almost 30 amendment to the state.” It noted that the most recent amendment by the legislature is of the 2013 amendment of Rape and Sexual assault law, the category of offences under which 377 finds itself.32 Since the legislature has critically made amendment to IPC in 2013 and chose not to delete the section 377, the court relied on this reason to strengthen, the presumption of constitutionality of the statue.33 This is unaffected, they say, by the fact that the union has decided to not challenge the appeal the order of the Delhi High Court. The Supreme Court has left “the repealing of Section 377 to parliament, citing that it is the courts job to interpret existing law, not amend them”.34

The court tried to see constitutionality of Section 377 IPC while considering it under reasonable classification in Article 14 of constitution, whether the test is under the Article 14 to see whether a law is based on reasonable clarification: “for a classification to pass constitutional muster, it must be made on in intangible differentia with a rationale relation to the object of the Act”, and thus it was applied in this case, “test to the section, and finding that it does create a clarification: between canal intercourse ordinarily and carnal intercourse against the order of nature’, their go on to state that the high court was not right in declaring Section 377 where Article 14 and 15 were applied”.35 Thus reasonable test can’t be applied to this case. The court did not consider a progressive approach rather stick to the doctrine of separation, and morality approach.

The court further failed to “look the amount of evidence placed by the counsel before, as taking the figure of 200 prosecuted person’ – this presumably to be the 200 reported judgement in appellate courts of consensual and non-consensual acts prosecuted under Section 377 which would have constituted only a fraction of the unreported cases at the trial level”. A more recent evidence was quoted of this kind that is where the 13 person were arrested under Section 377 that took place a month ago of the Koushal judgement, its Hassan, Karnataka clear contravention of the Delhi High Court verdict, but there are large number of such unreported matter, which the court refused

32 Ibid 33 Ibid 34 ‘Back to square one: The SC order on 377 uploads the state a keeper of “Public Morality”’, Economic and Political weekly, vol. 48, No. 52 (Dec28, 2013), pp. 7-8 35 Suresh Kumar Koushal and anther Vs Naz Foundation and Ors (2013) 4 SSC (Cri) 1

34 to take on board in assessing the impact of this Section.36 And not only deriving those evidence, the court “remained unconcerned about evidence from personal testimony of LGBTQ person describing harassment, torture and discrimination”. But they also ignored the fact of evidence from member of health professionals highlighting the fact that homosexual was a normal and natural variance of human sexuality and that Section 377 had an impact, what they land minority sects on the LGBT community. Thus, falling to acknowledge such important things, the court was more focused on re-criminalizing homosexuality without giving a strong reason to do so. Instead the court goes on to say that the mere fact that “police authorities misuse 377 is cannot be as reason declaring section 377 unconstitutional.”37

Thus, Supreme Court, in overturning the Delhi High Court decision in Naz foundation case, after almost five year, was step taken toward revivalism.38 The judgment is full of inconsistence and rooted in a narrow down reading of the power and responsibilities of the Judiciary, Judges failed to recognise the individual rights and community right which were recognised in the Indian Constitution, and thus 377 should have been gone much before than the Navjet Singh Johar judgement”.39 Instead in this judgement they later refuge in the doctrine of presumption of constitutionality, addicting of the supreme centriole as a guardian of constitutional values and a deferred of the fundamental rights of citizens.

This judgement was highly criticized all over the world thus failing to recognised Human Rights, as various political parties, including section of left, have been neglected towards the fight against section 377 as they consider it being insignificant and lower in the rug in the large far equality and justice, where the leader of ruling congress party came out in open support of reading down section 377 to decriminalisation conserved adult sex, but the government does not seen to be in much of a hurry to action that part of time.40

As the earlier case on deciding the fate of section 377, the court has gone from approach to approach, as in the case of pre independence era the judiciary was defining unnatural sex, what

36 Sheikh, Danish and Narrain Siddharth, ‘Struggling for reason: Fundamental Rights and the Wrongs of Supreme court’, Economic and Political weekly, vol. 48, No. 52 (Dec28, 2013), pp. 14-16 37 Ibid 38 Ibid 39 Ibid 40 ‘Back to square one: The SC order on 377 uploads the state a keeper of “Public Morality”’, Economic and Political weekly, vol. 48, No. 52 (Dec28, 2013), pp. 7-8

35 can constitute unnatural offence as terms like oral sex and sodomy was not mentioned in the section 377 rather imported by the judiciary into the fourfold of section 377 through various cases. The cases after independence generally dealt with the judiciary punishing the act of same sex as offence under section 377 on the ground of morality and didn’t much bothered about its validity and rights of the LGBTQ community.

The major leap came up with judgment of Delhi high court in Naz foundation case where the judiciary while deciding the constitutionality of section 377 of IPC upheld constitutional rights especially fundamental rights of individual are superior to that of section 377 and declared it unconstitutional. But the Naz foundation cases was soon overruled by the supreme court in the Kaushal judgment by taking a traditional approach through doctrine of separation of power as it is legislature duty to amend the IPC and to do away with the section 377. Which was again challenged by Navtej Singh Johar and other in supreme court of India were court declared section 377 unconstitutional and moved away from the traditional approach taking the route of transformative constitutional approach as the constitution should be amended according to the need of the society as no society is static and changes according to the time.41

The case of Navtej Singh Johar talked about wide spectrum as it talked about the individual identity being one of the important facet of the social inclusion and every individual has the right to be what he want to be irrespective of his sexual orientation as the judgment has referred many important quotes of scholars as, “German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I am” and similarly, “Arthur Schopenhauer had pronounced, ―No one can escape from their individuality”.” In this regard, it is profitable to quote a few lines from John Stuart Mill42:-

“―But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”

Thus, giving a departure from traditional approach of the judiciary where judiciary didn’t much bother about the individual identity and considered society above an individual. The supreme court recognising individual identity quoted that in Navjet Singh Johar case that ““the natural identity

41 Navtej Singh Johar and Ors. Vs. Union of India (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 42 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 para (1-3)

36 of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.””43

It was further challenged by the petitioner that “Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination”. The Court reasoned that the “discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population”.44 Among other things, the Petitioner further argued that “(i) Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to privacy as it subjected LGBTQ people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.”45

The Court while declaring section 377 unconstitutional firstly, it relied upon its earlier decision of National Legal Services Authority v. Union of India46 were they stated that the “gender identity

43 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 para 4 44 Ibid 45 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 para 6 46 National legal service authority Vs. Union of India, (2014) 5 SCC 438

37 is intrinsic to one’s personality and denying the same would be violative of one’s dignity”. The Court secondly relied upon its decision in K.S. Puttaswamy v. Union of India47 and held that “the denying the LGBTQ community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights.” It further held that the “Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private ‘does not in any way harm public decency or morality’” and if it continues to be on the statute books, it would give a chilling effect that would “violate the privacy right under Art. 19(1)(a)” .

The Court further affirmed that that the “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state” and thus sodomy laws violate the “right to equality under Art. 14 and Art. 15 of the Constitution by targeting a segment of the population for their sexual orientation”.48 Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M.49 and Shakti Vahini v. Union of India50to reaffirm that “an adult’s right to “choose a life partner of his/her choice” is a facet of individual liberty”. Thus, it is important to look what the 5 judges bench had their particular view on declaring section 377 of the IPC unconstitutional. The judges had their own opinion while deciding the case which are as follows:

Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the “principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded”. He further stated, “constitutional morality would prevail over social morality” to make ensure that human rights of LGBT individuals are well protected from all the discrimination, and further doesn’t have effect on it due to any majoritarian government.51

J. Nariman in his opinion analysed the legislative history of Section 377 to conclude that “since the rationale for Section 377, mainly depended upon the Victorian morality which, “has long gone”, thus there is no reason for the continuance of the law”. He further concluded his opinion

47 K.S. Puttaswamy v. Union of India, (2017) 10 SSC 1 48 Navtej Singh Johar and Ors. Vs. Union of India (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 para (640.3.3) 49 Shafin Jahan vs. Asokan K.M, (2018) 16 SCC 368 50 Shakti Vahini vs. Union of India, (2018) 7 SCC 192: (2018) 3 SSC (CIV) 580: 3 SCC (Cri) 1 51 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350 para 97

38

“by giving an emphasis on the Union of India to take all measures and to publicize the judgment so as to eliminate the stigma attached to the LGBTQ community in Indian society.” He further directed “the government and police officials to be sensitive toward the condition of the community so as to ensure favourable treatment for them.”52

J. Chandrachud in his long-elaborated judgment recognized that “though Section 377 was facially neutral, its ‘effect was to affect the identities’ of the LGBT community.” He stated that, “if Section 377 continued to prevail, the LGBT community would not be able to take up health services from government or any private medical institute and thus the “prevalence of HIV will exacerbate”.” He further stated that “not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community” “equal citizenship in all its manifestations”.”53

J. Malhotra affirmed that “homosexuality is “not an aberration but a variation of sexuality”. She stated that “the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy”.” She concluded her opinion by stating that “history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.”54

This case had all the answer which were needed to be answered from the time of invoking section 377 in 1860 and creating a condition were the homosexuality was seen as crime and its member being discriminated at every stage of life by the police and the society on the face of it. Thus, this case recognised the individual identity, health services, constitutional morality over social morality, discrimination and torture. The case was a complete departure from traditional approach to more progressive approach adopted by the Indian judiciary. Thus, this judgement was hailed from every corner and received praises from all over the world. Thus, removed the shackle created by the British law and colonialism which still exist through colonial laws which still find place in Indian society.

52 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350, para (344-349) 53 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350, para 517 and 561.1 54 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350, para 644

39

CHAPTER 5

CONCLUSION

As we have seen how society and law plays an important part in shaping the future of a community and thus society and law have always crossed the roads to decide the fate of LGBTQ community in India, which constitute 7 to 8 % of India’s total population1 which is quite big in number and right of freedom, personal liberty, and privacy of such population have been neglected, despite of having a constitution which recognised the rights of every individual. Thus, judiciary and legislature have failed to recognise their rights of the LGBTQ and have made them to suffer for more than 70 years.

Firstly, the rule of law in name of section 377, which criminalized homosexuality was applied in Indian soil by the colonial power having its origin from the main land of British empire, thus having its genes in Victorian and Christian morality which opposed homosexuality by and large, this law by colonial power was plainly applied without taking into consideration any social factor which existed in India from ancient time, and further the Indian government till the declaration of section 377 unconstitutional didn’t bother about getting away from the Victorian law which was deciding the fate of LGBTQ community.

Secondly, the legislature and judiciary failed to understand the Indian society and history, as India is land of diverse culture which from ancient time have accepted heterogeneity and given place to diverse culture and religion. Thus, every religion in India through its religious text and mythological book gave an acceptance to homosexuality on first place and on second it provides us with an information that homosexuality has been there in Indian society from ancient time, whereas religious text in ancient India gives us an evidence on homosexuality being prevalent in India, later on in medieval India it can be seen that homosexuality being prevalent among the classes as the there are evidence of homosexuality being practised among the elite class (the royal family). Thus, the situation of the homosexual being largely depend upon the society as there was no confined law like section 377 which only came in 1860 through the Indian penal code applied

1 Navtej Singh Johar and Ors. Vs. Union of India, (2018) 10 Supreme Court Cases 1: 2018 SSC Online SC 1350

40 in India by colonial power to regularize crime in the India society and thus making homosexuality as an offence.

Thirdly, the Indian judiciary and legislature failed to recognise the international scenario, which was developing on the line of social movement in 1980’s and 1990’s which aimed to recognised the human right of an individual and thus giving an equal rights and space to LGBTQ community and not only this various countries world over were recognising the rights of homosexuals and homosexuality didn’t remain an offence. As, in Britain it was always legal for women; decriminalised for men in:1967 (England and Wales),1981 (Scotland), and1982 (Northern Ireland) and in 2014 same sex marriages was also recognised. And in India it was only in 2018 homosexuality was decriminalized. And not forget that it was the Britishers who applied section 377 in the subcontinent.

Fourthly, the Indian judiciary and legislature failed to understand the poor health condition and increase of STD’s and HIV not only among the LGBTQ community but in the society at large, as the among the LGBTQ community anal and oral sex in quite prevalent which was leading to increase in sexual transmitted disease and government being aware of such facts have failed to work upon it and the lower judiciary recognised it in Naz foundation case but soon it was turned down by the higher judiciary in Koushal case.

Fifthly, the Indian judiciary and legislature failed to recognised the rights of LGBTQ community on the line of constitution which has attributed every individual with the same rights and thus neither the government acted upon these right nor the judiciary until Navtej Singh Johar where the court applied the principle of transformative constitutionalism by which the supreme court meant that the constitution should be applied according to need and development of the society. Thus, it can be said that it took so long for the Indian judiciary and society to get rid of section 377. As, Judge Indu Malhotra in Navtej Singh Johar is correct to the sense that “history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.”

41

BIBLIOGRAPHY

BOOKS

1. K.D Kaur, ‘Criminal Law, cases and materials’, 7th edition, Lexis Nexis, 2013

2. Vipul Singh, ‘Interpreting medieval India’, volume 1,’early medieval, Delhi sultanate and regions (circa 750-1550)

3. Satish Chandra, Medieval India, From Delhi Sultanate to the Mughal Empire, (1526- 1738), part II

4. Upinder Singh, A history of Ancient India and Early Medieval India, From the Stone Age to the 12th Century, 2006 edition Pearson

Articles

1. Animesh Sharma, Section 377: No Jurisprudential Basis, Economic and Political Weekly, Vol. 43, No. 46 (Nov. 15 - 21, 2008), pp. 12-14

2. Ajendra Srivastava, Journal of the Indian Law Institute, Vol. 51, No. 4 (OCTOBER- DECEMBER 2009), pp.513-522

3. Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, Economic and Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-4823, (DECEMBER 28, 2013), pp. 14-16

4. Azeezah Kanji, towards a Sexual Pluriverse: Queering International Law’s Sexual Subject Through Islamic Legal Histories

5. Back to Square One: The Supreme Court's order on Section 377 upholds the State as keeper of "public morality", Source: Economic and Political Weekly, Vol. 48, No. 52 (DECEMBER 28, 2013), pp. 7-8

6. Danish Sheikh and Siddhart Narrain, Struggling for Reason: Fundamental Rights and the Wrongs of the Supreme Court, Economic and Political Weekly, Vol. 48, No. 52

42

7. Denial of Rights to Sexual Minorities, Economic and Political Weekly, Vol. 43, No. 43 (Oct. 25 - 31, 2008), pp. 6-7

8. Geetanjali Misra, Decriminalising homosexuality in India, Reproductive Health Matters, Vol. 17, No. 34, Criminalisation (November 2009), pp.20-28

9. Homosexuality and the social meaning of gender, Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988)

10. Human Rights Watch, his alien legacy: The origins of ‘sodomy’ laws in British colonialism, School of Advanced Study, University of London, Institute of Commonwealth Studies. (2013)

11. Ira Trivedi, The Indian in the Closet: New Delhi's Wrong Turn on Gay Rights, Foreign Affairs, Vol. 93, No. 2 (MARCH/APRIL 2014), pp. 21-26

12. Krupa Shandilya, (In)visibilities: Homosexuality and Muslim Identity in India after Section 377, Department of Sexuality, Women’s and Gender Studies, Amherst College

13. Michael R. Stevenson, Promoting Tolerance for Homosexuality: An Evaluation of Intervention Strategies, The Journal of Sex Research, Vol. 25, No. 4 (Nov., 1988), pp. 500-511

14. Sherry Joseph, Gay and Lesbian Movement in India, Economic and Political Weekly, Vol. 31, No. 33 (Aug. 17, 1996), pp. 2228-2233

15. Sonia K. Katyal, the dissident citizen, 57 UCLA Law Review 1415 (2010)

16. Sumit Saurabh Srivastava, Disciplining the 'Desire': 'Straight' State and LGBT Activism in India, Sociological Bulletin, Vol. 63, No. 3 (September-December 2014), pp. 368-385

17. Upendra Baxi, Dignity In and With Naz case

18. Vimal Balasubrahmanyan, Gay Rights in India, Economic and Political Weekly, Vol. 31, No. 5 (Feb. 3, 1996), pp. 257-258

19. Vivienne C. Cass, Homosexual Identity Formation: Testing a Theoretical Model, The Journal of Sex Research, Vol. 20, No. 2 (May, 1984), pp. 143-167

43

DICTIONARY

1. OXFORD ENGLISH DICTIONARY, CLARENDON PRESS OXFORD PUBLICATION, II EDITION, 1991 2. JUDICIAL DICTITIONARY, LEXIS NEXIS PUBLICATION, 14TH EDITION (2000) 3. THE OXFORD DICTINOANRY OF BYZANTIUM, NEW YORK, OXFORD UNIVERSITY, ONLINE PUBLICATION 2005

WEBSITES

1. http//www.gaybombay.org/html/index 2. http:/madrascourier.com/insight/homosexuality-in-Islam-India 3. https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india

44