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SECTION 377: IS IT NEEDED FOR INDIA?

Authored by: Chandrasekhar Pillai*

* 2nd year LLB Student, Christ (Deemed to be University), Bengaluru

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ABSTRACT

Homosexual relations are criminalized in 72 world countries including India. In India a new discussion regarding Section 377 of the Indian Penal Code came to light on August 24 2017 when a nine-judge bench of Supreme Court while taking of Right to privacy as an important right found that the presence of Section 377 is a serious threat to one’s sexual life which is one’s private matter which involves security and dignity. The section 377 of the IPC was upheld by Supreme Court in the case of Suresh Kumar Kaushal v NAZ Foundation (Civil Appeal No. 10972 of 2013) which overruled Delhi High Court’s decision in the case NAZ foundation v. Government of NCT of Delhi [WP (C) 7455/2001] which found Section 377 of IPC unconstitutional. By upholding the validity of Sec 307 Supreme Court has criminalized consensus sexual relationship between people of same sex. Thus it hampered fundamental rights of the like their Right to Life and Right to choose.

This paper focuses on a comparative analysis between the status of LGBT rights in Christian countries and even in Jewish country where it is legalized with that of India where LGBT rights was failed to be recognized due to Judeo Christian morality. This paper also analyse International Conventions like Article 12 of the Universal Declaration of Human Rights 1948 and Article 12 of International Covenant on Civil and Political Rights 1966 should be considered for setting up a strong legislation that deals with LGBT rights. The paper suggests amendments should be made in the Special Marriages Act to promote sexual union of same sex people rather than making changes in the personal laws which may attract protest from religious groups.

Key words: , Fundamental Rights, Right to life, Right to choose, Section 377

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INTRODUCTION

India which became independent from Britain in 1947 even today is influenced to a large extent by the rules which were passed by Britishers almost a century ago. It is to be realized that these laws were passed by the Britishers to regulate the situation which prevailed in the country a century ago or the law was in balance in the societal norms then. So these 100 year old rusted laws will not fit the socially and politically advanced India. One of such law is the Section 377 of the Indian Penal Code titled as unnatural offences which criminalizes sexual activities against the order of nature including homosexual sexual activities. The section provides for a punishment of imprisonment up to 10 years and fine for these kinds of offences committed by people. The law also involves implications for Heterosexuals where the consensual sex between two private individuals is treated as an offence and is punishable under the law.

This section was being challenged in court of law through numerous cases filed by many NGOs and private individuals toward the end of 20th century and is continuing till today. The first case which involved the question of the validity of this section was NAZ Foundation v NCT of Delhi1 before the High Court of Del hi. The Delhi High Court deleted the section and noted that the section applied to only non-consensual activities and not to private consensual activities and thus the effect of decision was that the homosexual acts are not illegal. The decision of honorable High court was considered a path breaking verdict which demolished a 150 year old law which caused discrimination to LGBT section in the society2. The honorable High Court of Delhi declared Section 377 of IPC unconstitutional as it was violative of Article 14, 15 and 21 and read down the section allowing consensual sex activity between the people above age of 183. The court also said that it violated article 14 of the constitution because it caused unreasonable classification for homosexuals4. The decision was highly controversial one and it welcomed protests from the orthodox communities including religious groups in society. Thus in the case of Suresh Kumar Kaushal v NAZ Foundation5, an appeal was filed against the decision and the Honorable Supreme court of India overturned Delhi HCs decision6. The Supreme Court said that this section never

1 WP ( C ) 7455/2001 2 Delhi High Court legalizes consensual gay sex, CNN IBN, 07-02-2009 3 Oindrilla Mukherjee, Unnatural offences under the IPC, Academike, July 21, 2014, https://lawctopus.com 4 Naz foundation v Govt. of NCT Delhi, 160 Delhi Law Times, pg.91 ( Delhi High Court 2009) 5 Civil Appeal No. 10972 of 2013 6 Ira Trivedi, The Indian in Closet: New Delhi’s wrong turn in gay rights, 93 no.2 torrent relations,21, 22-23 (2014) 198 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 violated Article 14 or 21 of the constitution as the section intends to punish unnatural lust and is not intending to corner a particular section. The court also gave reasoning that as it was a pre- independent legislation and if it was violative of rights under Part 3 of the constitution then it would have been repealed by Parliament earlier itself7.

The section recently came into news when a nine-judge bench of Supreme Court while taking of Right to privacy as an important right found that the presence of Section 377 is a serious threat to one’s sexual life which is one’s private matter which involves security and dignity8. On May 1st 2018 Supreme Court sent a notice to Central government on fresh pleas for scrapping Section 377 of IPC and legalize Homosexual Acts9.

HISTORY OF HOMOSEXUALS IN INDIA

In the Suresh Kumar Kaushal case one of the main arguments raised by the respondents i.e. NAZ Foundation was that Section 377 was based upon Judeo-Christian moral and ethical standards and is used to discriminate minorities i.e. LGBTs. Thus by the rejection of that argument by Supreme Court it is contented that the Homosexual activities are against the ethical and moral standards in the country. The Vishwa Hindu Parishad, a right wing organization said that homosexuality was “against Indian culture and values” and they welcomed the decision of Supreme Court which upheld Section 377. They called “Homosexuality as an imported disease which needed treatment”. Importance was given to the culture and values of India rather than the rights of the minorities i.e. LGBTs. The justification given by Supreme Court was that the “section punished only unnatural offences and it did not discriminate anyone on the basis of their sexuality and if this section is deleted then there will be no other laws to govern unnatural offences”. But some questions which are to be asked is “whether the culture and values in India oppose homosexuality?, “ Is Hindu religion as claimed by VHP is anti-homosexual?”

7 Neeraj Gurmani, Unnatural offences under the IPC, Academike, March 27 2015, https://lawctopus.com 8 Anand Grover, The freedom to choose, The Tribune, July 17 2018, 12:28 AM IST http://www.tribuneindia.com 9 Amit anand chaudary, gay hotelier moves SC against SEC 377; top court seeks Centres’s response, TOI, April 24 2018 10:58 IST, http://m.timesofindia.com 199 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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Rig Veda, one of the four canonical sacred texts of Hinduism, written in 1500 B.C , depicts sexual activities between women10 and Rig Veda mention “Vikriti evam prakriti” which means what seems unnatural is also natural11 and this text indirectly mentions that there is no such kind of thing like unnatural in this world. In Sutras, supplemental writings to Vedas, it seems to support that homosexuality was supported during ancient times12. The ancient Indian text Kamasutra, written by Vatsyayana, mentions erotic homosexual behavior and it might even surprise anyone who has visited some Hindu temples like Khajuraho in Madhya Pradesh, the walls of which have carvings that depicts homosexuality13. This shows the tolerant attitude of ancient people towards homosexuality during those days. In another ancient text Manusmriti written by Manu forbids homosexual activities and prescribes minor punishments like cold bath for these tendencies14. But today in India the punishment for homosexual offences are rigorous like imprisonment and even after centuries had passed it can be seen that our country is still less tolerant than the people in ancient society. In Hindu religion the homosexuals were given a predominant position even today they are worshipped as god by people. So in ancient India the position of the homosexuals were more liberal and was much better than the present world.

The condition of the homosexuals worsened when Mughals became the emperors of India and during this time homosexuals were awarded rigorous punishments like flagellations and even death as the laws followed by them were Islamic laws and these laws considered homosexuality as a sin15. The condition of these people further worsened during the period of British rule in India. The British gave cruel punishments to the homosexuals in the country; there were mainly two reasons for such a behavior from the british government. The first was- Due to tolerant attitude towards homosexuality by ancient India there was a rise in number of the homosexuals in India and as a result of which it became really difficult for the british to control or regulate the homosexuals. As some of the homosexuals indulged in illegal activities like prostitution, the british had a kind of prejudiced mind which placed all the homosexuals in the place of hooligans and law breakers. The second reason was that the british knew that tolerance towards LGBTs is a kind of

10 Same as citation 6 11 Same as citation 6&10 12 Same as citation 6,10&11 13 Victoria Burrows, There’s more to Madhya Pradesh than Khajuraho’s erotic sculptures, Post Magazine, 29 August 2015, http://m.scmp.com 14 Same as citation 6,10,11&12 15 Same as citation 6,10,11,12&14 200 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 liberal attitude and the growth of this liberal attitude might lead to awakening of Indians when they realize their culture and values are supreme to that of Western culture. So in order to prevent the threat of this kind of awakening the British realized it better to oppress the liberal attitudes in the minds of people. So it is clear that the British opposed the homosexual activities not because it was immoral or against the order of nature but it was simple to concrete their administrative supremacy in India.

INTERNATIONAL LEGAL REGIMES GOVERNING HOMOSEXUALITY

Same sexual acts by consenting adults in private are legalized in more than 100 countries in the country i.e. almost 60% of the world population. If India were to change its homosexual by giving legal status to same sexual activities then the percent would jump to almost 78% of the total population16 i.e. it means that almost 78% of the total population in the world will be living under laws that benefit the homosexuals.

Under this heading the status of homosexuality in foreign countries is discussed especially the status of homosexuality in those countries where administration is carried on by Judeo-Christian ethical standards. It is weird to note that many countries which follow Judeo-Christian ethical standards as their laws are liberal to the matter of homosexuality and from among them most of the countries have legalized homosexual marriages and many countries have legalized homosexual union.

There are 15 countries in the world which has Christianity as its state religion out of which many has legalized homosexual union and even homosexual marriages. The movement supporting homosexuality became prominent during mid of 20th century and is in its peak at the beginning of 21st century and is still continuing. Though many countries gave legal status to same sex union before 21st century only 6 countries were ready to give legal status to the marriage of homosexuals in their country. They were Denmark, France, Iceland, Norway, Netherlands and Sweden17. Among these countries Denmark and Iceland has Christianity as its State religion. It is an irony

16 Joseph Chamie, Same sex marriage: A new social phenomenon, Vol 37 no.3, Population council, 529, 536 (2011) 17 Joseph Chamie, Same sex marriage: A new social phenomenon, Vol 37 no.3, Population council, 529, 530(2011)

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ISSN 2455-4782 that the rights of homosexuals in country having Christian faith has already been recognized the rights of homosexuals in a secular country like India is still in dusk. It is a surprise that a Christian country Denmark is the first country in the world to officially recognize same sex unions. Now let’s take the case of a few countries which provide for LGBT rights in spite of following Judeo- Christian morality.

Argentina which is a Christian country is one of the country with most advance gay laws in the world. It is the first country in Latin America and the 10th country in the world to legalize same- sex marriages when it did so on 15th July 2010 amid the strong protest from who was then the arch-bishop of Buenos Aires. Argentina’s LGBT laws are considered as one of the dynamic and most forward looking one. The Argentina has a special provision under laws which allow the people to legally change their gender without undergoing any surgery or hormone therapy or psychiatric diagnosis and it allows gay and bisexual men to donate blood18. Argentina offers for LGBT couples from 2010 itself. But it is to be noted that in spite of positive legal changes towards LGBT rights, a 2014 report by research team of University of Buenos Aires on bullying and sexual diversity in high schools reveal that there is continuing bullying and discrimination towards LGBT students in High school19. The High school and university cannot provide necessary facilities to LGBT community accessing them because of lack of training resources to faculty and other workers. However even after strong steps being taken by the government to improve LGBT rights still it’s unfortunate that there still exists in the country. Diana Sacayan, a prominent Trans rights advocates was found stabbed n her apartment on 13th October 201520. The grave opposition is from the orthodox religious groups in that country but still Argentina is model which is to be followed by every countries in aspects of its rich LGBT laws even after it being a country based on Christian morals and even after grave opposition from the church still it was able to separate between the state religion and the state laws.

18 Michael K Lavers, Argentina joins global LGBT rights initiative, Washington blade, March 24 2016, http://washingtonblade.com 19 Javier Corrales, The politics of LGBT rights in Latin America and the Carribean: Research agendas, No.100 50th special anniversary issue, CEDLA ,pg. 53, pg.58 (2015) 20 Michael K Lavers, Argentina joins global LGBT rights initiative, Washington blade, March 24 2016, http://washingtonblade.com

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Another country to be noted is the only Jewish country in the world Israel has legally recognized in 1988 same-sex union and prevented any discrimination on the basis of sex in 1992. Even though same sex marriages are not allowed in the country of Israel but Israel recognizes same sex marriages which are performed outside its territory. Israel is one of the first countries in which legalized same sexual union and they are the country which shows the most liberal attitude towards LGBTs compared with their homosexual neighbors like Egypt, Jordan and Tunisia also in some Palestinian territories21. Most Middle East countries follow Islamic laws here homosexuality cannot be legally recognized by the Islamic law. Those people who gets prosecuted under these Middle East territories usually come to Israel to seek asylum22. In the first gay happiness index 2015 conducted globally Israel is ranked as the 7th happiest place in the world where the gays felt accepted. In a 2011 American Airlines survey , a major city in Israel was voted as “Best of gay cities”23. , the unicameral national legislature of Israel officially designated February 23, 2016 as the state of Israel’s official LGBT rights day24 and on that day the Israeli Prime minister supported the rights of LGBT community and said that “Every man is created in the image of god”25. MK , the first gay law maker from party compared LGBT community with Jewish people saying that both were “hated for no reason, persecuted, discriminated against and faced force conversion26”. But even after being given with all these rights Israel is still lagging behind or is hesitant in providing certain rights to LGBT community of the country. On the next day after the National LGBT day was celebrated in Israel, Knesset scrapped 5 gender equality bills like recognizing same sex widowers of slain soldiers, recognize civil unions, ban for minors and require medical professionals to study gender and prior to their licensing etc; due to the furious opposition from the opposition parties27. Another blow which came to the rights of LGBT communities in Israel

21 The five most improved places for gay tolerance, The Independent , September 17 2008, http://www.independent.co.uk 22 Alina dain Sharon, Israel and Arab countries are miles apart on LGBT Rights, Outward magazine, http://outwardmagazine.com 23 Alina dain Sharon, Israel and Arab countries are miles apart on LGBT Rights, Outward magazine , http://outwardmagazine.com 24 Lahav Harkov, Netanyahhu voices support for gay rights on knesset LGBT day, The post, February 2 2016 18:43, http://m.jpost.com 25 Lahav Harkov, Netanyahhu voices support for gay rights on knesset LGBT day, , February 2 2016 18:43, http://m.jpost.com 26 Same as citation 24&25 27 Marissa Newman, Day after marking LGBT rights, Knesset nixes 5 gender equality bills, Times of Israel, February 24 2016, 5:34 pm, www.timesofisreal.com 203 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 was the Israel Supreme Court’s decision that “same-sex marriage is not a right” in a case filed by Israeli Gay, Lesbian, Bisexual and association28. But if we compare the situation of India with that of Israel it can be understood that even though much restrictions are placed on LGBT rights in Israel none of them are a threat to basic fundamental rights of the LGBTs.

GLOBAL TREATIES ON HOMOSEXUALITY

There are several global treaties on the matter of homosexuality:

The first of such treaty which supported the LGBT rights worldwide was the Universal declaration of human rights adopted by the UN General Assembly on December 10 1948. Article 2 of the Universal declaration of human rights speaks about Ban on discrimination which says that, Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race , color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Further Article 12 of Universal Declaration of Human Rights says that, everyone has the right to protection of law against interference or attacks on the basis of privacy, family, home or correspondence. Also another focus is laid in Article 16 where it is said that “Men and women have the right to marry and to found a family irrespective of race, nationality and religion” but if it is widely interpreted then a person can marry other person without any barring from sex or gender also.

International Covenant on Civil and Political Rights adopted by UN General Assembly on 16th December 1966 in Article 23 (2) said that “The right of men and women of marriageable age to marry and to found a family shall be recognized”. It further recognizes that family is the natural and fundamental unit in the society and is entitled to be protected by the State. This clearly shows that the state has an obligation to protect the unit of family in the society without considering whether the family consists of heterosexual couples or homosexual couples.

28 Benjamin Butterworth, Israel’s Supreme Court rules same-sex marriage is not a right, Pink News, August 31 2017, http://pinknews.co.uk 204 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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But still both these declaration seems to support the traditional views of marriage as a institution between a man and a woman and in many cases UN has publically said that the International countries are not obliged to support homosexual marriages.

The Yogyakarta principles, a document supporting Human rights in the field of sexual orientation and which was framed by a group of human rights activists who met in Yogyakarta Indonesia in November 2006. They says about the legal standards with which government and other agencies in the society should try to end the violence, abuse, discrimination against Lesbian, gay, bisexual and transgender people and ensure full equality among all people in the society29.The Yogyakarta principle was launches as a global charter on 26th March 2007 at United nations human rights council in Geneva. Further these principles were presented at United Nations event in New York City on 7th November. The preamble of Yogyakarta principle speaks about the injustices faced which include rape, torture, sexual assault, extra judicial killings etc:. as far as LGBT sections are concerned rape. Torture and sexual assault are the major threats faced by them all over the world. Principle 1 of this principle states that: All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to full enjoyment of all human rights. This principle does not limit its applicability not upon men and women but extends its applicability on all gender identities including homosexuals, lesbians, gay and transgender.

Some of the other efforts by UN to promote same sex marriage are30:

a. In July 2013, UN launched “Free and equal” a massive campaign designed specifically to advocate same sex marriage and other LGBT concerns at UN and all around the world. b. In July 2014, the UN secretariat began recognizing the same sex marriages of its employees. It was done by UN without any consultation with its member states. c. In 2014, UNICEF, in a publication stated that it supported states’ enactment of laws that supported same sex couples

29 ‘ Yogyakarta Principles” a Milestone for lesbian, gay, bisexual and ”, Human Rights watch, March 26 2007 8:00 pm EDT, http://www.hrw.org 30 Paul Coleman, The UN’s Push for “Same-sex marriage”, The WITHERSPOON INSTITUTE, January 21 2016, http://www.thepublicdiscourse.com 205 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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CURRENT LEGAL REGIMES GOVERNING LGBTs IN INDIA

After the Suresh Kumar Kaushal case judgment by Supreme Court the hope of regaining the rights for homosexuals had gone into darkness. But recently when the Supreme Court pronounced Right to Privacy as a fundamental right observed Section 377 as a threat to the privacy of an individual. Following this decision the Supreme Court on 26th October 2017 made a historic rule confirming the right of the LGBT people in the country to express their sexuality in the public without facing any discrimination from anyone31. The Supreme Court judgment read “Sexual orientation is an essential attribute to privacy. Discrimination against individual on bass of sexual orientation is deeply offensive to dignity and self-right of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.” After the judgment in privacy and in sexual orientation several petitions were filed against the Section 377 of IPC and on the plea filed by Keshav Suri, top businessman and executive Director of Lalit Hotels and who claims himself to be in a committed relationship32 with a man, the Supreme Court has issued a notice to Central Government seeking their opinion on Section 377 of Indian Penal Code. Recent developments relating to this section has raised a gleam of hope among the homosexual community as well as the advocates of their cause.

Rabbi Ezekiel Issac Malekar, the head of Jew community in India said that “In Judaism, our scriptures do not permit homosexuality”

Recently the Government of India had submitted to Supreme Court that there is almost 2.5 million gays in India out of which 7% are HIV positive33. It has to be noted that the gays alone in this country if amounts to such a figure then what will be the number of Lesbians, bi sexual or transgender in this country, this will surely amount to a huge number. On comparing this number with the total population of India the percentage would only be just a nominal one and the Supreme Court’s justification that it is a matter of a minority and only 1 or 2 cases are registered under this section would be justified. But in a country where it is written in the constitution that one’s Right to life and liberty which includes the Right to live with dignity, is it possible for the law to ignore

31 Benjamin Kentish, India declares freedom of sexual orientation a Fundamental Right, Independent, 26 August 2017, http://independent.co.uk 32 Amit anand chaudary, gay hotelier moves SC against SEC 377; top court seeks Centres’s response, TOI, April 24 2018 10:58 IST, http://m.timesofindia.com 33 India has 2.5 m gays, government tells supreme court, BBC, 14 March 2012, www.bbc.com 206 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 the basic fundamental right of a homosexual just on the basis of the fact that they amount to only a minor part of the society?, should the fundamental right of an individual be violated for upholding the values, beliefs and morality of people?.

In the Suresh Kumar Kaushal case one important observation made was the upholding of Judeo Christian morality in the country by going against the homosexuality in the country. Here the Supreme Court has decided to uphold Article 25 the Freedom of conscience and free profession of religion by protecting the religious sentiments of the individual. Through this India’s tolerant nature can be established but the problem or the question which arises here is India being a secular country is justified in denying a fundamental right on the basis of religion?. Secularism from the perspective of Indian constitution means equal treatment of all religions by the state and it clearly denies any relation of constitution and laws with that of any religion. Usually in a secular state like India the rights and other obligation should be given much superiority over the religion but the decision of the Supreme Court in the Suresh Kumar Kaushal case is one of the exceptions where the religion is given superiority over the rights and other matters.

“Homosexuality is an abomination as per Bible” said by the lawyer who represented Apostolic Churches Alliance in Supreme Court in Suresh Kumar Kaushal case34. It is clear from the words of the lawyer representing Christian churches and from the words of the Jewish head mentioned above that both these religions are not willing to accept the changes to be brought into the society which go against their religious beliefs. In a secular country like India it is obviously the duty of the state and the court to uphold the religious faith of one and this is the place where the question regarding the interpretation of the word Secular in the constitution comes into light. Treating every religion equally is what is mentioned about secularism in constitution, but to what extent? Is a question which is worth asking? Is the religion to be treated equally to the extent that the fundamental as well as other right can be violated?. Whatever the intention of the framers of this word was it should be interpreted in a more liberal manner so as to furnish that the religion should not be taken into consideration by the government or court while passing or pronouncement of any law.

34 Harish V Nair, Christian, Muslim and Hindu group insist Supreme Court must NOT make homosexual acts legal in India as top judges review anti-gay law, MailOnline, 02 Feb 2016 22:25 BST, www.dailymail.co.uk 207 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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In a secular country like India homosexuality is considered an offence as per Judeo-Christian morality and the point which has to be noted here is whether those countries which follows the Jewish and Christian principles and laws for administration follows the policy of criminalizing the homosexuality. If such countries are willing to allow the homosexual sexual activities then why should a secular country like India still abstain from providing rights to homosexuals in the country?. These are questions which are to be answered.

Raising the hope of the people of LGBT community in January 2018 SC decided to hear the petition filed by 5 people to look into its 2013 Suresh Kumar Koushal judgement. The case was 35referred the case to a larger bench and sought the help of Central government36. During the course of hearing which began on July 10, Supreme Court stated that “Homosexuality is a variation, not an aberration”

ARGUMENTS FOR AND AGAINST SAME SEX UNION OR MARRIAGE

Same sex union and homosexual marriage has been a debating topic in the contemporary world. Since the concept of homosexuality came in the world there have been arguments for and against this. When the homosexuals began to claim their rights i.e. their right to be treated equal to that of a man and woman one of the major claims made by them was their right to marry and lead a normal life like a heterosexual couple could do in this society. In this world where even being a homosexual is considered a sin, it is very difficult for them even to have a sexual union with the same sex person. Some of the arguments for and against the homosexual union and their marriage are:

One of the major arguments raised by the people in support of same sex activity is regarding the respect to be given to Fundamental Rights of each human being. In the Article 16 of United Nations Universal Declaration of Human Rights it says that: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.” In the world arena

35 Sc on section 377, Apex Court to resume hearing petition on gay sex, The Indian Express, 17 July 2018 36 Ananthakrishnan G, Section 377: Supreme court will revisit its order banning gay sex, The Indian Express, 09 January 2018 208 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 fundamental rights are declared supreme to any other matters and are considered inferior to none. Even in India also Article 21 which speaks about Right to life and liberty cannot even be suspended by government A person being a homosexual personality is his right to live with dignity as a homosexual one and it cannot be taken away even by the government, so the justification of the majoritarian morality being violated is not even a satisfying for taking away the fundamental right of a human being.

Another argument which goes in support of homosexual marriage is regarding the right to equality of a homosexual person in a society. A homosexual couples who follows the normal rules in the society same as that of a heterosexual couples or a homosexual couples who pays the same taxes in the society as prescribed by the government is entitled to get the same benefits in the society as availed by the heterosexual couples37. If there is any distinction between the rights availed between both groups then it can be proved that there is a clear cut violation of right to equality among the people in the society. As per Indian constitution in such cases there will be violation of Article 14 which guarantees right to equality for all persons in the country.

Marriage is an institution in the society and it should be made open to maximum number of people38. The major component of a marriage which makes it binding on couples is the mutual trust and love which the couples should be having each other. If the homosexual couples can lead their marital life without any problems with their love and affection for each other then there should not be any limitation or any barrier which prevents them from getting married and from getting the same rights as heterosexual couples. If such violations occur then the whole institution of marriage based upon love and mutual trust of couples will be at threat and the necessity of marriage as an institution will lose its relevance.

One of the main arguments against the same sex union it demoralizes the religious and sacred texts. Most of the religious texts in the world speak about marriage as an institution which occurs between people of opposite sex and it was not allowed between people of same sex. As per Bible Leviticus 18:22 “ if a man lie with a man or a woman lie with a woman, it is abomination and

37 Joseph Chamie, Same sex marriage: A new social phenomenon, Vol 37 no.3, Population council, 529, 539 (2011)

38 Arguments for and against gay marriage, Debating Europe, www.debatingeurope.eu 209 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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Leviticus 20:13 says that if such a thing happens they should be put to death. Also as per Romans 1: 26-27 says that men, leaving the natural use of woman. Burned in their lust for one another, men with men committing what is shameful, and receiving in themselves the penalty of their error which was due”. 1 Corinthians 6:9-10 says homosexuals and sodomites will not inherit the kingdom of god. Like this most other religions in the world go against the concept of homosexuality and giving support to the concept of homosexuality by a country would be like going against the beliefs as per the religion and going against the religion would cause hurting the religious beliefs of it citizen by the government itself.

Another argument against the concept of same-sex union and same-sex marriage is the traditional belief that marriage is mainly for the purpose of procreation or reproduction. Marriage is for the purpose of production of a legitimate off spring which would guarantee the continuation of the generations as well as increase the number of productive members within the society and thus by giving consent to the same sex union or marriage would lead to unhealthy practices within the marital union39. For example in Netherlands where same sex marriage was legalise first in the world now has provision for polygamy i.e. having more than one spouse for the muslim homosexuals. This would lead to chaos within the society as argued by the critics of the same sex union or marriage.

Another argument against the concept of homosexuality is the claim that all rights have some limitation40. If the people are given all the rights as they want then the society will be no less than a lawless one. If homosexual marriage is given consent under the pretext of the right to choice of the homosexuals then the state would have to legalize other things like drug usage and prostitution. Like this if homosexual marriage is legalized today then polygamy and incestuous marriage has to be legalized tomorrow. So it is a general claim by the opposers of the same sex union and marriage that it should not be legalized as the legalization of the same sex union and marriage would give rise to or will strengthen the movements to legalize other social threats and altogether the total

39 Joseph Chamie, Same sex marriage: A new social phenomenon, Vol 37 no.3, Population council, 529, 540 (2011)

40 Arguments for and against gay marriage, Debating Europe, www.debatingeurope.eu 210 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 legalizing of all these would disturb the social order in the society and thus will cause chaos in the society.

DRAWBACKS AND PROBLEMS OF SECTION 377

Section 377 of Indian Penal Code written in 1860 during the time of Lord Macaulay as mentioned above was passed by the British government for the purpose of their better administration and also to fit the social and political environment in the country during those times. The British passed this law soon after the First war of Independence so it was necessary for them to frame a law in such a manner that it would satisfy the religious and moral feelings of the people in the society.

One of the major problem faced by this section is that the law prima facie is discriminatory in nature. Even though the Supreme Court says that the law is framed to meet the unnatural offences happening in the country still it is being used to discriminate a person on the basis of his gender and sexual desire. Here what comes into play is not the intention of the law but its execution whatever the intention of the law is the execution of it has miserably failed which has caused the law to be of a discriminating one. The best example is the arrest on the basis of suspicion as homosexuals under section 72& 73 of Delhi Police Act and against the harassment of them a protest was carried out by a group named AIDS Bhedbhav Virodhi Andolan (ABVA)41. Another incident which occurred was the homosexual tendencies of the prisoners in Tihar jail, the largest prison in India, where there was a high chance of AIDS for those prisoners indulging in sexual activities and to prevent this, the ABVA decided to supply free condoms to the prison which was blocked by the prison authorities42. This case is considered as the foundation or the immediate cause of filing of the petition against the Section 377 of IPC by ABVA at Delhi High Court in the year 1994. In the court the jail authorities refused to accept that there were homosexual activities occurring in the jail43. It is the main problem faced where the government failed to address the matters of homosexuals in the community and is even ignoring the matters of LGBTs due to political pressures.

41 Geetanjali Misra, Decriminalising , Vol 17 no. 34, Taylor&Francis,20, 22 (2009) 42 Same as citation 41 43 Same as citation 41&42 211 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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The section 377 criminalizes not only the consensual homosexual sexual activities but also for heterosexuals where the consensual sex of two adults in private is also treated as an offence and the punishment given to it is the same in degree as for those people indulging in homosexual sexual activities. The Section 377 of the Indian Penal Code is written in such a way that it only recognizes only procreative sexual activities and it does not recognize non-procreative sexual activities i.e. as per this section sexual activities between two individuals in opposite sex is a crime unless it is for the purpose of reproduction and this law does not recognize sexual activity between two individuals for the basis of sexual pleasure. From this nature of the law the archaic nature of this law can be observed where this law even peeps into the private matters of an individual like his sexual life. In this country, where the Right to Privacy is recognized as a fundamental right it is to be questioned the validity of such a section which derogates the privacy of one’s life. This section is like causing an invasion into the bedroom of the public44.

Another problem faced by this section is the difficulty to find the consent in homosexual sexual activity. In the NAZ Foundation case Delhi High court had recognized that the punishment is only given to non-consensual and coercive sexual activities45 and there is no punishment for consensual sexual activity between two adults irrespective of their sex. But the current decision in Suresh Kumar Kaushal case is such that the Supreme Court triggers punishment for unnatural offences and homosexual sex activities are considered unnatural. So this has made the people with homosexual tendencies to oppress their inborn sexual tendencies within them and they are forced to not to express it. This has caused violation of their fundamental right to live with dignity. Therefore as their inborn tendencies cannot be publically expressed they are forced to either oppress it within themselves but some other people express their tendencies over other people who may not consent to this and thus it causes non-consensual sexual activities which causes crime. As adults may reject those kinds of attempts these people with homosexual tendencies often uses children for the same. Thus indirectly criminalization of homosexual sexual activities is causing an increase in the number of crimes like rape, child molestation and non-consensual sex. The law which is supposed to prevent those crimes is indirectly acting as a catalyst which boosts these criminal activities.

44 Alok Gupta, Section 377 and dignity of Indian homosexuals, Vol 41 no. 46, E&P weekly, 4815, 4819, (2006) 45 Same as citation 38 212 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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SUGGESTIONS

India is a country where the homosexual rights are given least importance compared to many other foreign countries. In India after the 2013 Suresh Kumar Kaushal judgment the transgender were deprived of all their rights. The only rights available regarding the gender are the right to change legal gender and the 3rd gender being recognized. Other rights like same sex union or recognition of same sex couples are not recognized. The Indian constitution provides free from discrimination on the basis of sex and similarly other laws are also framed in such a manner that do not discriminate the homosexuals. But these laws could not be implemented due to the protest from the social conservative groups. Therefore the homosexuals are deprived of their basic rights. The societal set up of India is built in such a way that being homosexual is considered a sin. Some of the suggestions to improve the condition of homosexuals in India are:

a. Campaign to improve social attitudes46 In our society there still exist a lot of negative stereotypes about LGBT people. These stereotypes lead to discrimination, bullying and even violent attacks against LGBT people. As per the survey conducted by Swasti, a health resource centre among 2169 citizens across 3 states 44% of them had faced violence in their past childhood. The main reason for this attack is not because that the victim was a transgender but because of the conservative attitudes of the attackers which found it as a sin of being a transgender.

b. Supporting people from LGBT community to rise above The government should frame new policies and plans which will help the LGBT community to come to the front in society. Government should ensure that even if a person is from LGBT community he should compulsorily be given proper education and should be given every opportunity to pursue higher education. They should be given particular reservation and preference while pursuing for admission for higher education and while pursuing for a job. The perfect example of such an upliftment can be seen from the appointment of K Pratika Yashini as a police officer in Tamil Nadu Police Department thus

46 Arwen Armbrecht, 10 ways to improve LGBT rights in Europe, World Economic Forum, January 4 2006, http://www.weforum.org 213 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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becoming the first transgender police officer in the country47. Another example was set up when the Government of Kerala appointed 20 as house keeper when Kochi Metro was flagged off in 201748.

c. Financial support for LGBT community49 The government should provide financial support to the LGBT people in the country. It will be difficult for a person from LGBT community to find a job here in the society because of their sex. So it will be very difficult for them to earn a living, it is when most of them turn to illegal activities like prostitution to earn their living which will increase the chance for them being affected with AIDS and other health problems. So the government should provide financial support to the transgenders until they find a job to earn their living and the government should also give necessary incentives like pension etc: to them. Scholarships should be provided to students from LGBT community who is in need of pursuing education. Also financial support must be given to LGBT entrepreneurs who wish to carry out business.

d. Providing a safe work place50 The government should not only provide with jobs to them but should also ensure that they get a comfortable and safe workplace, they should be provided with all facilities that they need etc: the government should set up a list of best practices and codes of conduct at workplace for better treatment of LGBTs at workplace. Even though Prevention of sexual harassment at workplace has been passed in India it is applicable to only women and not LGBTs. So the government should pass legislation or a statute which would lay down particular policies and strong codes which would ensure a safe and comfortable work place to LGBT community.

47 Pramodh Madhav, Prathika Yashini, India’s first transgender police officer, wins acceptance, India Today, http://indiatoday.in 48 Elsa Tresa Jose, Kochi metro transforms the lives of women, transgender employees, manoramaonline, June 11 2017, 07:37 AM, https://english.manoramaonline.com 49 Same as citation 40 50 Challenges for LGBT people in the workplace and how to overcome them, , July 28, 2014, https://www.theguardian.com 214 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

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e. Measures at School level Sex education program should be started and included in school curricula51. Most of the curricula in schools today are based on accepting only men and women as the only two sex and there is no scope for the concept of same sex union or homosexual marriage. This will make the mind of the child hesitant to accept a new sex when they come to know about it. This hesitance later will turn into a hate towards the LGBTs which will make them violent towards these LGBT community. Rather the students should be thought that all sexual orientation are valid and they should be respected. They should be thought to accept differences. They should be allowed to have communication and friendship with a homosexual child as they have with a heterosexual child52. The heterosexist syllabus should be altered in such a way that the syllabus also includes the information regarding the homosexuals so that the students will get a basic idea that the world consists of people diverse sex and they will be able to accept differences.

CONCLUSION

India is a country where being homosexual is considered a sin due to its traditional and historical backgrounds. Starting from Manusmriti to the modern day laws in India all these laws were bended or diverted to corner or curb down the homosexual attitude among people. The traditional consider being homosexual as a mental disease or illness. But medical establishments all over the world including WHO and American psychiatric Association accept homosexuality as a behavior and not as a disease53. It is seen that homosexuality is accepted in those countries where the citizens are literate and well educated but India being a country with a average literacy rate of 74% homosexuality will not be a pleasant topic to attract. India is one among the few countries in the world where traditional beliefs and customs are considered supreme to education. Education makes a person open or broad minded which makes a person to understand differences and accept and adapt to new things but if one is narrow minded his thoughts will be narrowed to the extent that he

51 Chapter 4: Gender Inequality, Social problems: Continuity and Change, GitHub Pages, https://saylordotorg.github.io 52 Chapter 4: Gender Inequality, Social problems: Continuity and Change, GitHub Pages, https://saylordotorg.github.io 53 Vimal Balasubrahmanyan, Gay Rights in India, Vol. 31 No.5, E&P Weekly, pg.257, pg.257 (1996) 215 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7

ISSN 2455-4782 will not accept anything in the world other than what he knows. Another reason for the poor treatment of homosexuals in India is the politics. The Indian politics and the traditional customs and religion are closely interlinked or we can say that the Indian politics depend upon the traditional beliefs or customs and religion. Globally the future of a political party and politicians will mostly depend on the innovative plan he or his party put forward or the qualifications which the politician or his party possess but India is an exceptional country where the caste of the politician or the religious agenda of a party will determine their future in the polls. After years of advocacy and continued awareness by the activists of homosexuality some portion of population in India i.e. elite class population and educated people has extended its support to homosexuality but still the uneducated population and from the middle class as well as from the poverty ridden community has still not been able to accept the concept of homosexuality. The government which consists of the politicians has not still been able to make these people aware about the concept of homosexuality or they have intentionally kept these populations away from these knowledge to ensure their vote bank as making them aware about these modern advanced and liberal thinking would derogate their religious feeling and this derogation would mean lose of vote for the party trying to make them aware about it. So most political parties will not take much effort for the implementation of awareness and as religion and tradition are the tools used by most of the political parties they will not be dumb enough to waste their tool. It is the same method used by the Britishers to gain control over Indians before Independence.

The 2013 Suresh Kumar Kaushal judgment by the Supreme Court of India which is often being criticized for its oppressive nature upon the LGBT community is understood to clearly base upon the above mentioned factors like traditional and religious beliefs rather than solely based on the Constitution and laws. In a country like India where decisions cannot be made binding on the population solely based on the laws written upon even the Supreme Court has to take into consideration the religious and social factors it is justifiable that the Supreme Court took such a decision. But it was binding for the Supreme Court to take such a decision because the reason for growth of such religious and traditional beliefs among the population in the country is due to the negative campaign done by the politicians against homosexuality for the purpose of gaining their votes among conservative sections in the society. Another problem which prevents the idea of homosexuality from growing is the fragmentation of the progressive groups. Even though many

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ISSN 2455-4782 cases were filed at different courts allover India, as they were fragmented none of it had power to overcome section 377 of IPC or to uproot the several century year old tradition. It was only towards the end of first decade in the 21st century these cases achieved a common direction and became strong and the outcome of which was the landmark judgment by Delhi high court in the NAZ foundation case54 (2009).

Even though in today’s India where homosexuality is not accepted the current legal developments in the area gives a gleam of hope to LGBT community. The Supreme Court has given a notice to central government seeking its opinion on the matter of same-sex union and homosexual marriage55. In this contemporary India where Right to privacy and Triple Talaq ban was ordered by the Supreme Court it would not be surprising if the Supreme Court would overturn its own decision made in 2013 in Suresh Kumar Kaushal case.

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54 Supra note 1 55 Supra note 9 217 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7