National Law University Delhi (India) 2019
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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.