HOMOSEXUALITY; A LEGAL OVERHAUL

Name: Amir Abdul Aziz

College: H.H. Maharaja Government Law College

Abstract

The rights of every individual in the court have to be protected by the state, irrespective of caste, religion, community, sex and sexual orientation. Quite a lot of instances the majority’s moral and ethical values come in conflict with the rights of minorities. Here the state, authorities and courts have to make informed decisions. Nevertheless, every institution must ensure the absence of authority overreach while making decisions, for the stability of Democracy in the nation. This research paper analyzes the evolution of homosexuality in India and examines landmark judgements which brough humongous effect in the struggle of queers rights.

Keywords

Homosexuality, Same-sex Marriage, Fundamental Rights, Section 377 of Indian Penal Code, Special Marriage Act, 1954.

Introduction

Today the world is going through the witnessing of widespread voices raised for homosexuals and queer persons. The concept of LGBTQ+ is being discussed intensively and extensively. Down the line of history, one could witness numerous struggles for the freedom and liberty of the queer community. Indian society has gone through a phase which considered love and romance as crime. Hence the plight of queers would be beyond imaginable. One has the right to question the concept of queer but none has the authority to restrict the freedom and oppress the liberty of queers. The history of Indian judiciary has noted the backlash for advocating voices of queers and victorious ones too. Nevertheless, the questions raised by the queers also result in a scrutinisation of existing laws and systems. Hence, an intense overhaul of the issue is necessary to see the clear picture.

Research Methodology

During the writing of this research paper sources such as case laws, judgements, Articles, News reports, Case comments have been referred. This paper explores the evolution and landmark judgements pertaining to the LGBTQ+ community

Review of Literature

This includes articles, judgments and sections which were analyzed for this paper.

  • Article 14, 15, 19 and 21 of the Indian Constitution.
  • Judgment of the Cases:
  • Naz Foundation v. Government of Nct of Delhi
  • Suresh Kumar Koushal and Another v. NAZ Foundation and others
  • Navtej Singh Johar V. Union of India
  • Supriyo @ Supriya Chakraborty & Anr. v. Union Of India
  • Section 377 of Indian Penal Code
  • section 4(c) of Special Marriage Act, 1954

Evolution of Homosexuality

Contrary to a common notion, homosexuality is not a new and elite concept. Homosexual activities were present way before numerous decades[1]. Yes, the concept of LGBTQ+ would be some sort of strange to a typical person who has grown up in the typical Indian society, which always considered it as alien and evil. But if delved into it, any person would find agreement with it, since all we are talking about and engaging with are humans[2]. Historian Rana Safvi told the BBC in 2018 that “love was celebrated in India in every form”. She said “whether ancient or medieval India, fluid sexuality was present in the society. One can see the depictions of homosexuality in the temples of Khajuraho and Mughal chronicles”. The temple imaginaries, religious scriptures and sacred narratives do suggest the existence of homosexual activities in one form or the other since ancient india. 1988 saw the first documented same-sex marriage, which was between Leela Namdeo and Urmila Srivastava. Being police officers, they were suspended from their jobs. Media desperately covered numerous such marriages held in various parts of the country. These brides were majorly from lower-middle-class backgrounds in small towns, with limited proficiency in English. Nevertheless, many had some level of education and held jobs. But, notably none had ties to women’s or LGBTQ+ advocacy movements. It can be said that these lower-income, non-english speaking couples are the true pioneers of marriage equality in india. Historians claim that the change of perspective of Indian society towards homosexuality and queers was a result of the colonial rules enacted to curb the rights and liberty of the queer. Section 377 of Indian Penal Code[3] which was enacted in 1861 that criminalized homosexuality was a notable first step against the queers.  Historians are of the view that Section 377 remained in place even after India’s independence in 1947 largely because of “our ignorance of history and politicians’ apathy”. Through the historical events of the judiciary we have seen various judgments pertaining to LGBTQ+ communities. Noted historian Harbans Mukhia says “In 2018, we recovered what we had lost during colonial times – a more open attitude toward the LGBT community” after the supreme court decriminalized the same-sex intercourse in 2018.

Legal framework and landmark judgements

The first legal framework which discriminated against queers and curbed their freedom and liberty was Section 377 of the Indian Penal Code.[4] It included the homosexual sex as unnatural offenses. Homosexuality and sodomy was first considered and recorded as crimes in Fleta 1920 in England and Britain in 1300. Such acts were criminalized under the Buggery Act, 1553, prescribing death penalty as punishments. Queen Elizabeth 1 in the year 1563 re-enacted it. In India, the offense of homosexuality and sodomy was enacted through the acts for improving the Administration of criminal justice in the east indies. In 1837, Draft Penal Code was drafted including Clauses 361 and 362 concealing with Unnatural Sexual Offenses” which were later amended into Section 377 of Indian Penal Code within the offenses against human body and under separate group of Crimes of Unnatural offensesSection 377 describes unnatural offenses as; Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.[5] Here the major deliberation was with the interpretation of a vague phrase “order of nature”. Through this statement and section, homosexuality was also criminalized, since it was perceived to be against the order of nature. People opined that the order of nature is subjective and bound to the changes of time. As the time and generations change the perspective of the society also changes.

Naz Foundation v. Government of Nct of Delhi

This section was challenged by Naz Foundation, an NGO working majorly on preventing HIV/AIDS, at the Delhi High Court. In the case Naz Foundation v. Government of Nct of Delhi[6] In 2009, the petitioners challenged the constitutional validity of the section 377 of the Indian penal code, which, they submitted, is discriminatory against queer and homosexuals and is against the fundamental right guaranteed by the Indian Constitution under article 14, 15, 19 and 21.[7] They submitted that section 377 of Indian Penal code should apply only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. They also claimed that this section hindered their efforts of HIV/AIDS prevention, queers are hesitant to disclose their identity, making the treatment of any efforts towards prevention difficult. As a result the basic human rights of these individuals and groups stood denied and they were subjected to abuse, harassment, assault from public and public authorities. Nevertheless, if analyzed the usage of the section 377, it can scene to be used majorly in cases of child sexual assault and abuse. Hence, the section which criminalizes private, conceptual same-sex conduct is being used as a tool for police abuse. The petitioners submitted that there is no aspect of one’s life more private and intimate than the sexual relations. Since it lies in the ambit of one’s private space it should be considered under right to life guaranteed under article 21 of the Indian Constitution. While the Ministry of Home Affairs and MInistry of Health and Family Welfare being two among the respondents, submitted contradictory affidavits[8]. MHA argued that the striking down of section 377 of Indian penal code would lead to rampant increase in the cases of child abuse. They submitted that the Indian society would not morally condone homosexual relationships, acts or behaviors. And law must reflect society’s moral values. Contrary to the submission by MHA, the Ministry of health and family welfare argued in favor of the Naz Foundation and submitted evidence in support of them. Their submission was in alignment with the Naz foundations plea that section 377 of Indian Penal Code would place a large number of people at risk and would be hesitant to come forward of treatment fearing the abuse and harassment from law enforcement agencies.

Justice Ajith Prakash Shah and Justice S. Muralidhar delivered the judgment on 2 July 2009. The judgment recognised the right and dignity of homosexual individuals that is guaranteed under the Article 21 of the constitution. They also held that penalizing consensual homosexual activities would violate their right. The court was of the view that Section 377 does violate various fundamental rights. Article 14 is being violated through Section 377, because the section creates unreasonable classification and targeting of homosexuals. The court also stated that the majority’s moral value cannot be taken as a criteria to curb the rights of the minority. Court also mentioned that article 21 would also include the right to health and concluded that section 377 hindered public health. Nevertheless, the court havent ruled down the entire Section 377 of Indian Penal Code, instead it declared unconstitutional insofar it criminalises consensual sexual acts of adults in private.[9]

Suresh Kumar Koushal and Another v. NAZ Foundation and others

Naz Foundation v. Government of Nct of Delhijudgment was a great win for the LGBTQ+ activists. They say that this judgment would establish the rights and liberty that have been curbed and oppressed. But, the decisions of this case was then appealed against in the Supreme Court of India in the Suresh Kumar Koushal and Another v. NAZ Foundation and others.[10] The petitioners in this case held that the Delhi High Court was not correct in its judgment where in allowed consensual homosexual acts. In this case petitioners argued that section 377 of Indian Penal code is not discriminatory or unconstitutional since it does not point out to a single or particular individuals, group or communities.[11] The court entertained their argument and held that Section 377 of Indian Penal Code is not violative of Article 14, 15 and 21.[12] The court went an extra mile and stood by the argument the petitioners put forward that carnal intercourse means unnatural lust and has to be punished. Justice Singvi was of the opinion that Section 377 of Indian Penal Code is a pre-constitutional legislation of if it was violating any of the fundamental rights guaranteed under Part III of  The Indian Constitution, the parliament would have repealed it. Hence, the court overturned the Delhi high court’s judgment and upheld the constitutionality of Section 377 of Indian Penal Code, which in fact, again criminalized homosexual activities.

Throughout these cases the major contention of the parties opposing homosexuality is that it is against the moral values of the society. But the fact is that, since the time and period is been changing, the perspective of the people towards homosexuality is also changing. Moreover, the homosexuals or people of LGBTQ+ community is no more a small group or minority. Throughout time, people started to be more vocal about their sexual orientation without being feared. Hence the community started to eventually become larger. Therefore, The issues raised by the LGBTQ+ community cannot be ignored and have not be adequate address to come to a solution.

Navtej Singh Johar V. Union of India

In 2016, the constitutionality of Section 377 was again questioned before the Supreme Court of  India by an appeal against the judgment of Suresh Kumar Kaushal case in Navtej Singh Johar V. Union of India.[13] In this case the petitioners argue that being interested in the homosexual, bisexuality or for that matter any sexual activity is natural and not a mental or physical illness. They mention that this is one’s personal choice which comes under the armpit of Article 21 of Indian Constitution.[14] The submitted that section 377 is based on values of an era where sexual activities were considered just for reproductive processes. They are of the opinion that this section is the only reason the people of LGBTQ+ community sufferers intense discrimination, humiliation and abuse their life long. The petitioners compared their plight with the marriage of inter-caste and inter-religion. They submitted that the majority society would be of the opinion against these marriages. But it’s court’s duty to enforce the fundamental and constitutional right of every citizen. They said that similarly, LGBTQ+ community may have face numbers opinion against it from majority society. But it’s the courts and authorities duty to enforce and ensure the fundamental right of the queers. They also submitted that section 377 violates fundamental rights of the queers, majorly, rights under Article 14, 15 and 21. The respondent side was of the opinion that the strike down of Section 377 of Indian Penal Code would destroy the fabric of the family system in india. They also submitted that the young Indians would see this as a trade opportunity and start using homosexual activities for money. The increased possibility of affecting HIV/AIDS was also argued by the respondent side. They also submitted that the socio-economic, political and cultural aspect of India is different from the countries which decriminalized homosexuality. They contended that the struckdown of Section 377 would lead to the questioning of various religious practices in this country, which would be violative of Article 25 of the Indian Constitution. One of the major arguments put forward by the respondent side was that the Section 377 is discriminatory on the basis of sexual orientation and not sex, hence it is not violative of Article 15 of Indian constitution.[15] The court held that the section 377 is violative of Article 21 since it curbs the personal choices of homosexuals. The judgment also states that section 377 is discriminatory against one particular group. Hence, it is violative of article 14 of indian constitution. The court held that the public morality, decency and order can be grounds to restrict the right of expression. But, any act done in affection by the LGBTQ+ community in public does not disturb public order until it is not obscene. Lastly the court overruled the judgment given in suresh Koushal and ors. V. Naz Foundation and ors. By stating that Section 377 is unconstitutional and it is violative of Article 14, 15, 19 and 21. This judgment gave the protection of law to the LGBTQ+ community as far as expressing intimacy and affection is concerned. But later a question of right to marriage was arised.

Supriyo @ Supriya Chakraborty & Anr. v. Union Of India

The right to marriage for individuals from LGBTQ+ community was seeked in the case of Supriyo @ Supriya Chakraborty & Anr. v. Union Of India.[16] In this case the petitioners seeked to declare section 4(c) of Special Marriage Act, 1954. Their contention is that Section 4(c) of the special marriage act recognises marriage as legal valid only if done between a ‘man’ and a ‘woman’. Hence they claimed that this section is discriminatory because it does not recognise homosexual marriages. They also submitted that this discriminatory provision will deprive them of  matrimonial benefits as adoption, surrogacy, employment and retirement benefits. Along with the Special Marriage Act, 1954, they also challenged the acts included in the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969.[17] Though the court did not entertain the challenges against the personal law, it had taken up the case challenging the Special Marriage Act, 1954. There were various indepth arguments, submissions and claims put forward by both the parties. But the crux of it would be that the petitioners submitted that the right to marry can be considered as an extension of Fundamental Rights to privacy, cohabit and choose one’s partner under Article 19 and 21 of the constitution. Wherein the respondent submitted that there is no such fundamental right to Marriage. They claim that marriage is a social institution flowing from personal law, tradition, culture and religion and it needs social acceptability. The petition stated that the non-recognition of the right to marry of queers under the law would be violative of article 14 of the Indian Constitution. The further claimed, that the decriminalisation of gay sex made the homosexuals in par with the heterosexuals. Hence, they have to be treated equally in every aspect of life including Marriage. The respondent’s submission to it was that the queers have the right to cohabit, this will not include the right to marry. The petitioners further stated that the intent of the Special Marriage Act, 1954 is to recognise personal choices and non conventional marriages. Hence, replacing the words ‘husband’ and ‘wife’ with ‘spouse’, will help to recognise marriage rights as far as queers are concerned under the Special Marriage Act, 1954[18]. The respondents submission to it was that any alteration to Special Marriages Act would come into the armpit of the parliament. The further claimed that the intent of the law makers behind the Special Marriage Act was to recognise interfaith and inter-religious marriages between hetrosexuals. Including homosexual marriages would go against the intent of the law makers. There was a question of whether the Supreme Court Of India can recognise the right to marriage of the individuals in the LGBTQ+ community. To this, the petitioners submitted that the Supreme Court has the right to recognise the right to marriage of queers since the fundamental rights are being violated. But the respondents argued that the  recognition of the right to marriage of the queers does call for the requirement of a separate law. Thus, the Supreme Court declaring and recognising the right to marriage of the queers would lead to the branch of the doctrine of separation of power. Through the hearing a much more complex question which arises is that the ancillary rights such that of the adoption, surrogacy and the right to have joint bank accounts be granted to the LGBTQ+ couples without recognising their marriage[19]. To it, the petitioners submitted that mere ancillary right without the recognition of marrying right would ensure substantive equality for LGBTQ+ persons, since marriage is not just about the ancillary right but also the social recognition, security and protection from abuse and discrimination[20]. But the respondent side submitted to the question in a positive note, that certain legalized amendments can be made to ensure the ancillary right and recognising the right to marriage is not necessary for that. To the concerns of child welfare, the respondents submitted that the community can adopt and provide the child with love, care and affection just as a hetrosexual couple would. Contrary to it the respondent side submitted that a biological hetrosexual man and women as parents is the norm and the best for child welfare.

In this case the judgment saw unanimous decisions in some aspects while splits in another. The bench consisted of Chief Justice D.Y. Chandrachud, Justices S.K.Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha. Overall the bench rejected the plea for queer persons’ right to marry. The bench unanimously stated there is no explicit mention of Fundamental right to marry. But there were aspects where the justices differed from each other. That is the chief opinionated that the supreme court is the right forum to recognise queers’ right to marry. He also underscores the importance of judicial review. But Justice Bhat differed from him in this matter. He stated that, though the bench would sense the lack, it doesn’t have the right to overreach its authority. He also opined that the court should be careful not to interfere with the authorities and powers of other organs. The bench also split in the aspect of queer couples’ right to enter into a “civil union”. The chief was of the opinion that the queer couple have the right to enter into a civil union. But he was in the minority. He stated that in fulfilling self development of a human being the ability to form intimate associations have to be there. He also elaborated that the right to form civil union comes under the ambit of Article 19, namely,  the freedom of speech and expression and freedom to form associations. Justice Kaul agreed with the chief and stated that the right to form “civil union” comes under the ambit of Article 19 and Article 21, and these rights are available to all irrespective of gender and sexual orientation. But, in the majority opinion, Justice Bhat stated that to give right to a union requires a separate legal framework. Agreeing with Justice Bhat, Justice Narasimha added that ordering the state to recognise a civil union will be against the doctrine of separation of power. For the plea of declaring the Special Marriage Act, 1954, Chief mentioned that declaring the Special Marriage Act unconstitutional would diminish the purpose of the legislature. He further mentioned that, since this legislation is intended to bolster the interfaith and inter caste marriages, striking it down would take India back to the pre-independence era where those sorts of marriages were illegal. Justice Kaul, contrary to the chief stated that the Special Marriage Act is violative of Article 14. He referred to the two pronged test for determining whether Special Marriage Act is violative of Right to equality or not. The test put forward two conditions. That is, the legislation has to have a clear distinction or classification between group or community. This distinction or classification should have a reasonable nexus with the object of the statute. And if the nexus is not found, it is a clear violation of article 14. Justice Kaul stated that the intention of the Special Marriages Act to bolster interfaith marriages has no nexus with the exclusion of non hetrosexual couples. Regarding the adoption right of queer couples, though the chief recognises their right to adopt by stating that Section 57(2) of the Juvenile Justice (care and protection of children) Act, 2015 (JJ Act) mentions the word “spouse” and not “married couple”. Justice Bhat, who led the majority and held that a wholesome reading of Section 57(2) will make one understand, the act only allows adoption by married couples. The last concern was whether transgender persons in hetrosexual relationships marry under existing laws. It was dealt by the bench unanimously. Chief stated that they have the right to marry by the existing law and trangender persons act, 2019.  Justice Bhat concurred with the CJI.

Suggestions:

  • Though homosexuals are a minority, the state and the court should not belittle their rights.
  • In this instance, upholding constitutional morality rather than societal morality is more vital, as far as the author is concerned.
  • Encourage Employers, Schools and all organizations to be inclusive and protective of LGBTQ+ individuals from discrimination and create a safe environment.
  • Make sure that there is a stable mechanism for addressing crimes and discrimination against homosexuals.
  • Provide training for government agencies on LGBTQ+ issues and to ensure fair and unbiased treatment.
  • Assist and encourage legal and non governmental organizations that specifically focus on LGBTQ+ rights.
  • special laws have to be made to penalize abuse towards the people who are not to the expectation of the majority society. For instance, Homosexuals.
  • The government and parliament have to take adequate steps to  address the Right to marriage of queers
  • The government should conduct awareness programmes to eradicate the negative perspective of the society towards queers.
  • Governments have to look up to the fields where the queers lack behind for being queer and come up with programmes to uplift them.

Conclusion

Homosexual rights have been in intense deliberations lately. These voices have to be heard. But, while analyzing their claims and arguments the courts and other institutions should not overreach their stated authority or capability. India had witnessed a prolonged history of struggles as far as LGBTQ+ right are concerned. They were successful in 2018. Now we have reached the right to marriage of queers. Since it have to dealt by the parliament, its adequate for the democratic structure of our country to let the parliament deal with it.


[1]On Human Nature – Biology, Psychology, Ethics, Politics, and Religion, 2017, Pages 495-516

[2]  Indian J Psychiatry. 2012 Jan-Mar; 54(1): 1–3

[3] Indian Penal Code, 1860

[4] https://primelegal.in/2022/10/15/evolution-of-section-377-and-its-current-stance/

[5] Indian Penal Code, 1860, Sec 377

[6] WP(C) No.7455/2001

[7] Indian Constitution art 14, 15, 19 and 21

[8]http://surl.li/orqua

[9] Vol. 17, No. 34, Criminalisation (November 2009),pp. 20-28

[10] CIVIL APPEAL NO.10972  OF 2013

[11] https://indiankanoon.org/doc/58730926/

[12] https://globalfreedomofexpression.columbia.edu/cases/koushal-v-naz-foundation/

[13] Writ Petition(s)(Criminal) No(s).76/2016

[14] https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/

[15] https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/

[16] Writ Petition (Civil) No. 1011 of 2022

[17]https://frontline.thehindu.com/columns/india-same-sex-gay-lesbian-queer-couples-marriage-supreme-court-verdict/article67442135.ece

[18] https://indiankanoon.org/doc/129202312/

[19] https://www.scobserver.in/cases/plea-for-marriage-equality/

[20]https://www.lexology.com/library/detail.aspx?g=d7708449-399e-4b74-a600-2f1c64183416#:~:text=The%20Constitution%20Bench%20of%20the,marry%20or%20have%20civil%20unions.

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