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Aindrila Biswas

5th year,B.A/BSC LLB NUJS. WB KOLKATA

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How Indian Judiciary is interpreted the social stigma in regards to LGBT rights?

 

Introduction:

It would be problematic to fix a gigantic moment of change from invisibility to visibility in the context of queer citizenship in India. From last few years it could be follow in film industry when the producer introduced new social behavior in the movie like Fire[1]. It argued that the Fire performed an important turn in public perceptions of queer visibility. On the other hand, another movie called “My Brother Nikhil”, the protagonist, Nikhil, is a homosexual man suffering from HIV/AIDS[2] He is detained by the government under the Goa Public Health Act, 1985, which empowers the State government to isolate persons living with HIV/AIDS by confining them in wards and institutions for extended periods.

 

After few years of Fire controversy, a less sensational, but equally epistemic event informed the burgeoning LGBT activism in India. In December 2002, NAZ[3] involved with activism and HIV awareness among the gay and MSM[4] community, filed a Public Interest Litigation in the Delhi High Court in an attempt to read down[5] Section 377’s criminalization of private consensual sexual acts that went “against the order of nature.” Passed in 1861 while India was still under British rule, the law criminalizes any sexual activity that goes “against the order of nature.”

 

The SLP has field against Delhi High Court’s Judgment[6] before Supreme Court by the petitioner who raised the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The court, while issuing notice to the Central government for representation and said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.

 

In response form the Government, the Ministry of Law and Justice had argued that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in “the interest of public safety and the protection of health and morals”[7]. The government claimed that Section 377 was used in cases of assault and deleting the section could2

 

“open the floodgates of delinquent behavior”[8]. The government said that Section 377 was needed to deal with cases of child sexual abuse.

 

The framers framed the sec 377 IPC in such a way that it criminalization of private consensual sexual act that went “against the order of nature”. The law specifically stated that whoever voluntarily has carnal intercourse against the order of nature with any man, women 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.

 

Basically this section is intended to punish the offense of sodomy, buggery and bestiality[9]. The offense consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with women or by a man or woman in any manner with an animal. Consent of the parties here is immaterial and the party consenting is equally liable as an abettor.

 

But Delhi High Court has taken into account the voluntary act when they framed their interpretation of decriminalized of sec377. They interpreted section 377 as more private concern. They brought consensual sexual acts of the adults in private who should exclude form the purview of the sec377 because it is the violation of article 21, 14 and 15 of the Indian Constitution.[10]

 

The attempt to repeal sec377 was introduced by great LGBT political activism in India in late 90’s. The conflict cultural meaning-making and legal intervention has addressed a complex considerable relationship between state and non-state centered activism in the context of sexual orientation. The rapid increase in the number of Indians who become effected by AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas the state and the judicial process[11].

 

CONFLICT BETWEEN LEGAL ARENA AND SOCIAL PURPECTIVE:

 

Main object of this section provides general understanding to “sodomy” which denotes intercourse per anum by a man with a man or with a woman or with a child or with an animal. Therefore, sex and age is immaterial in the concern of that act. And this section is wide enough to include child and women also.

 

If we look at the case laws we can indentified that whether this section is relevant or not in concern society. In Brother John Anthony v State of Tamil Naddu[12], the petitioner, warder of a boarding house was found to have committed on the inmates of the Boarding School following unnatural offences,viz,

 

1) Inserted the penis into the mouth of the victim and did the act of in carnal intercourse leading to ejaculation of semen into the month; and

 

2) Holding the penis in the hand of the victim making the manipulated movements of penis and withdrawal up to the point of ejaculation of semen.

 

The petitioner held liable under sec 377, IPC for committing unnatural offence by the court.

 

Not only had this, in 1974, the Supreme Court of India upheld an earlier sessions court verdict acquitting two policemen who raped a 16 year old tribal girl in the compound of the Desai Ganj Police Station in Maharashtra. The decision was informed by the horrifically dubious logic that since Mathura was ‘habituated to sexual intercourse’ to begin with and since she had passively submitted to their advances, the act could not be considered as non-consensual. Therefore, eventually activist from the women’s groups to change definitions of “consent”, culminating in the criminal law Amendment Act, 1983, which insisted that the burden of prove consent must be on the accused.

 

In India and the most of the Asian countries homosexual practices with or without consent is illegal and punishable. The British drafted personal law on homosexuality under the section 377 in the Victorian era when homosexuality was consider as an aberration that needed to be rectified by the State by criminalizing all forms of sexual behavior other than penile-veginal.[13]

 

Historically it has been proved that homosexual ‘erotic ‘acts occur in all cultures and in all societies in all periods. In India there exist sufficient documentary, archaeological and anthropological evidences to suggest that same sex ties especially among men, were not only culturally, but dignified and revered by attributing similar traits to religious deities. The Kama sutra has a chapter on same sex love. The apparent acceptance of boy lovers in Mogul and lesbianism in the confines of harems are well known facts of State approval and recognition of homosexuality[14].

 

In Europe the colonial masters had two sets of morality in respect of sexual behavior. The countries with Napoleonic Code did not identify the same sex acts for criminal sanction, whether as common law did criminalize homosexuality act and carried it to India and others parts of the colonies.

 

Even same sex marriage in China, Canada and other places got approval and state sanction. A recent case from Kerala, where the judicial Magistrate has allowed two young nurses to live “together for ever”[15] and they have decided to solemnize their relationship in marriage soon in an example of judicial approval of same sex relationship.

 

However, in twentieth century due to recognition of rights to life and liberty, as a basic human right, interference of law in private life of an individual is consider as invasion on an individual’s private life and bedroom. Perhaps it is to safeguard the individual’s right to privacy that England decriminalized homosexuality acts on private between consenting parties in 1967. Canada and Australia followed England. In the United State it is considered in appropriate to regard homosexuality relations as blameworthy for assigning criminal sanction and the US constitution does not require the state to do so.[16]

 

There is the rapid changing jurisprudence and other law related practice that identities a significant application of Human rights law with regard to people of diverse sexual orientations and gender identities. This development can be seen at the international level, especially in the form of practice related to the United Nations Human Rights treaties as well as Europeans convention of Human Rights. The sexual orientation and gender identity related human right legal doctrine can be categorized as follows:

 

a) Non discrimination

 

b) Protection of private rights and

 

c) The ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.[17]

 

On March 26th, 2007, the scholars of human Rights have invented a new principal, known as Yogyakarta Principles[18]. It applies of human rights in relation to sexual orientation and gender identity. The objective of this principle is that comprehensive identification of obligation of sate to respect, protect and fulfill the human right of all persons regardless of their sexual orientation or gender identity. It has define sexual orientation in the way that it refers to each person’s capacity for profound emotional, affection and sexual attrition to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.[19]

 

In the view of recognition or right to freedom as a fundamental human right, it is considered world over that criminalization of homosexuality acts is a clear violation of right to privacy. Naz Foundation has challenged specially for in two grounds:

 

1) Section 377 of IPC was violation of Article 14,15 and 19(1)(a-d) and 21 of constitution to the extent it penalizes sexual acts between consenting adults and that

 

2) There exist no compelling State interest to justify the curtailment of such an important element in the fundamental right to life and liberty.

 

Consenting the validity of section 377, Naz stated “it creates an arbitrary and unreasonable classification between natural (penile-vaginal) and unnatural (penile-non-vaginal) sexual acts which is violated of right protection before and under the law provided in Article 14”.

 

Social-scientific evidence has been also suggested that the prohibition acts are indeed not unnatural. Sec 377 is a discriminatory legislation because it criminalizes the pre-dominantly homosexual acts and imposes traditional gender stereotypes of natural sexual roles for men and women upon the sexual minority.

 

Interpretation:

 

The judgment has very limited placed which covered by the legal history of section 377. However, that is an incomplete for the judgment omits a critical paragraph in the writ petition which has been presented by Naz foundation. This paragraph basically explained how the introduction of sec377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime”. It is unclear why judges prefer to ignore the paragraph borrowed from an important collection of essays on same sex attraction. Perhaps, they felt that this issue would take them down to interpreting religious and spiritual sources. It would have required the judges to accept, deny or at least comment on the petitioner’s submission that section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by Historical evidence, could have made the judgment appears unnecessarily divisive. 6

 

It has observed that Naz Foundation discussion on sec 377’s case-law incomplete. Although the judgment refers to several leading cases, it does not provide that whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting section 377 have changed from “the non procreative to imitative to sexual perversity”.

 

The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited. In order to analyze whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction. The first theory that can be used in the analysis is the original intention theory.

 

In this it can be look at the Original intent in other words what framers intended. There are two strands of this, semantic original based on what the framers intended to say, and what they intended to do[20].Naz foundation judgment is clearly wrong as when framers spoke of article 15 for understanding of sexual orientation, if they had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.

 

Sometimes it is possible for some special cases a statute may have to be historically interpreted “as if one were interpreting it the day after it was passed”. [21] Generally statute always speaking variety of law and the court is liberty to put the current application of the statute in respective of present perspective. There are two kinds of principle which covered the circumstances. The first principle is that court must apply a statute to the world as it exist today and the second principle is that the statute must be interpreted in the light of the legal system as it exist today[22]. Reference to the circumstances existing at the time of the passing of the statute does not mean that the language used, at any rate, in a modern statute, should be held to be applicable to social, political and economical developments or to scientific inventions not known at the time of the passing of the statute[23]. Therefore a statute may be interpreted to include at the time of enactment of the statute.7

 

Apparently a question can be arising as what was the intention of the law framer. Whether their intention intend as originality approach like the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intends as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally supports the dynamic construction but it also has limitation. Statute can not be constructed in such a way that the original concept will be affected. [24]

 

In the case of Royal College of Nursing of the UK V Dept of Health and Social Security[25], Lord Wilberforce said: “ In interpreting an Act of Parliament it is proper and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention.”[26]

 

Lord Bridge also affirmed “When a change in social condition produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a prior assumption that the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply.” [27]

 

Therefore the new trend of homosexuality brings new dynamic interpretation by court in the Naz foundation judgment. . The social change in attitude towards homosexuality, two person of the same sex cohabiting and living together for a long time with mutual degree of interdependence have been apprehended as constituting a family[28]. Though they can stay together, but they shall not be qualified as a husband and wife because in Hindu Marriage Act, 1955[29] and Special Marriage Act[30], under the condition of marriage, statute has defined the age bar of bride and bridegroom. But now, the international convention of Human Rights Act, 1998 in England which introduced sexual orientation under Art 14 of European Convention on Human Rights in 2000 as an impermissible ground of discrimination. The same statute has been constructed to regard even same sex partners living together as husband and wife to avoid incompatibility with human rights.[31]

 

The present population of homosexuality in India is 25 lacks rather than one or two person which is a considerable change in social attitudes. Therefore, it is required to change the interpretation of section 377 of IPC as a decriminalization nature.

 

Conclusion:

 

The Victorian laws of sec 377 of IPC, their inherent rights are blatantly squelched down. It stands out as a deviance in the basic structure of the Indian constitution because it impairs the justice, liberty and equality of these unfriendly neighbors. Not only this, it also prevents a bundle of fundamental rights viz Articles 14, 15, 19(1) (a-d), 21 of the Constitution of India, which they as a citizen of India have lawful claim on. The biggest vice of this section is that it equates consensual sex with non consensual sex by categorizing them as the same penal offence.

 

Socio scientific evidences have also suggested that the prohibited acts are indeed not unnatural. Moreover it is to be understood that the import of the word ‘unnatural’ is dynamic and contingent to the societal sensitivity and appearance. The order of nature as purported by the section is ‘sex for procreation’. If this is the grand norm then by its strict interpretation all sex done for pleasure today should be prosecuted and penalized, abortions be prohibited and contraceptives and the like family planning measures be criminalized. The justification to retain section 377 is marinated by a religious and cultural veneer. It is also debated that the culture of homosexuality is essentially borrowed from the west. In stark contrast to this stereotype historically evidences secure that it had been practiced in all cultures at all times.

 

By strict literal interpretation, section 377 does not purport to prohibit homosexual relations; it only restricts certain sexual acts. Such acts may be practiced by heterosexuals also but homosexuals being more vulnerable fall as susceptible targets of the state and the patent victims of human rights violation. Thus, this section has matured into a potent tool of oppression employed by the venal police to further victimize these people[32].9

 

The crux of penal laws is protection of individual and society from unlawful wrongs and injustice, to ensure comfort rather than ensuing discomfort. It is not there to lay down autocratic standards for morality and immorality. The present is a multicultural society, with different inclinations and social, religious and moral affirmations. These co-exist in harmony. As a democratic state lacks authority to impose a particular religion, similarly it cannot bind the people with certain entrenched sexual norms. It cannot deprive an individual’s individuality, his own being.

 

Bibliography: 10

 

Books:

 

  • H Robinson Paul, “Criminal Law”, Aspen publishers, 1997
  • G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition, 2010
  • Dworkin G., “ODGERS’Constrution of Deeds and Statutes”, Universal Law Publishing Co Pvt, 5th Edition, 2nd India Print, 1998
  • Binda N.S,Rao M.N and Amita Dhanda, “Interpretation of statute”,10th edition, Lexis Nexis, Butterworths,2007

 

Journal:

  • Narrain Siddharth , A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,
  • Joseph Jesmin, Territorial Application of High Court Decision, NUJS Law review, rev 471, July- September, 2009
  • Shahani Nishant, Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009
  • Rao Ashok, Should homosexuality be legalized?, Times of India,29th June,2002
  • Ramesh Babu, Court nod for lesbians in Kerala, Hindustan Times, 29th October, 2002

[1] In1997 Fire was introduced. Even while inadequately locating lesbian desire only in the context of failed heterosexuality, the film’s representation of same-sex attachments between middle-class Indian women forced queer sexual politics in India into the national imaginary in an unprecedented, and at times, violent fashion. If homosexuality was not part of “Indian” culture, as some state officials claimed, the film successfully fore grounded that homosexuality was not an import of western decadence, and in fact was quite commensurable with indigenous identity formations.

[2] Human immunodeficiency virus/Acquired Immune Deficiency Syndrome.

[3] A Delhi based NGO (Non-governmental Organization)

[4] men who have sex with men)

[5] as opposed to a complete repeal

[6] Suresh Kumar Kaushal v Naz Foundation, SLP(C) No. 15436/2009 The SLP was heard by Justices Y.K. Sabharwal and P.P. Naolekar.,

[7] Siddharth Narrain, A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,

[8] See supra note 7

[9] Indian Penal Code, Chap. XVI, Sec. 377, Qted. In Bhaskaran, 15)

[10] Jesmin Joseph, Territorial Application of High Court Decision,NUJS Law review, rev 471, July- September, 2009

[11] Nishant Shahani,Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009

[12] 1992 Cr. LJ 1352

[13] Ashok Rao, Should homosexuality be legalized?, Times of India,29th June,2002,page 6

[14]Manusmriti,Chapter 8 Verse 370

[15] Ramesh Babu,Court nod for lesbians in kerala, Hindustan Times,29th October,2002,page 13

[16] Paul H Robinson, Criminal Law,(1997) Aspen publishers, Inc, pp-766-767

[17] Para42 pag36 of Naz Foundation Judgment

[18] See Supra note 18,Para 43 page 36

[19] See Supra note 18,Para 44 page 37

[20] This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this.

[21] G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition,2010

[22] See supra note15,pp250

[23] See supra note 15,pp250

[24] See supra note 15,pp-251

[25]See supra note 15, pp-251(1981)1 ALL ER 545,pp-564,565

[26] See supra note 15, pp251.

[27] See supra note 19,

[28] Fitzpatrick v Streling Housing Association Ltd,(1999)4 All ER 705(HL)

[29] Hindu Marriage Act, 1955, sec 5(iii) stated that the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage.

[30] Special Marriage Act, 1957, sec4(c) also defines the male has completed the age of twenty-one years and the female the age of eighteen years.

[31] G.P.Singh, Principle of Statutory Interpretation, 9th Edition, 2004, pp-231Ghaidan v Mendoze, (2002),4 All ER 1162(CA).

[32] As per the PUCL report 2003, it gives unbridled license to the lower executive strata for the rampant extortion of money. Such cases do not come to the limelight as homosexuals never file FIRs due to the social stigma attached to their being. They are abused sexually, verbally and detained for varying period of time which stretches from overnight to a few days imprisonment. No FIRs are filed by the police nor are any documentary evidences maintained resulting in excessive dolor void of any recourse. These people are discriminated at the workplace, abused by all and sundry or forced to marry against their will in hope of changing their cardinal self. Not to forget the younger ones who are evicted out of their own homes owing to the prejudice and social apprehensions. Since FIRs are scarcely filed, cases do not go to the court. Out of the few cases which do reach its footsteps the judiciary, owing to the delicacy of circumstances, reverts to a liberal stand


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