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Safder Kazmi

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377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14


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