Is Being Happy and 'Gay' Difficult in 'Free' India???
It is humbly submitted that the Part III of the constitution
primarily carries the common theme of human right. The international
conventions and the principles of natural justice also focuses on the
aspect of right to life with the full of dignity and liberty. The
fundamental rights are basic rights of the people. They are considered
as basic rights to live a perfect life. Moreover Article 13 (2) says
that “The State shall not make any law, which takes away or abridges
the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.”[1]
So, according to the constitutional provisions, Section 377 violates
number of fundamental rights of the homosexual people.
a) Sec. 377 violates Article 14 of the Constitute of India
Article 14 of the Indian Constitution provides that, “The
State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”[2]
Article 14 also focuses on the doctrine of intelligible
differentia, according to which there should be clear nexus between
the enacted provisions or act and its objective as for what purpose
they have been enacted. The same makes it clear that a law enacted by
legislature must be clear and must be rational. The supreme has held
that a statute is void for vagueness if its prohibitions are not
clearly defined. The rationale for this is that the provisions enacted
should be clear so that persons affected know the true intention.
[[3]]
Further, the Supreme Court has held that where a law does not
offer a clear construction and the persons applying it are in a
boundless sea of uncertainties and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the Constitution.
[[4]].
Moreover, Section 377, it punishes “carnal intercourse against
the order of nature.” However, the expression is not defined. Nor does
section 377 provide any indication as to what acts are comes under the
ambit of it. Courts have interpreted section 377 to cover not only
non-penile-vaginal sex but also to include imitative sex and acts that
amount to sexual perversity. The inconsistency and irregularities has
been followed over a years as to what Sec. 377 contains and it is not
par with the present globalised world and in that for developing
country like India as every citizen want to maintain its liberty and
wants to be an Individual first. Therefore, Section 377 is vague and does not clearly define its
prohibitions. Such vagueness leads to arbitrary application of section
377 against sexuality minorities. Hence, section 377 should be held
void for its vagueness and attendant arbitrariness.
Further, Section 377 creates an arbitrary and unreasonable
classification between penile-vaginal and penile-non-vaginal sexual
acts in the name of procreative sex and non-procreative sex and hence
violative of Article 14's guarantee of equal protection before and
under the law.
By its very nature, sexual acts engaged in by gay men, being
penile-non-vaginal, are non-procreative. Therefore, section 377
targets predominantly sexual acts engaged in by homosexuals. In so
doing, it targets a group of persons, mainly homosexual men, based on
their sexual preferences which are necessarily of a non-procreative
nature. At this point of time in the fastest world in era of
technology it is very important to note that even the gay couple can
have procreation with the IVF technology which is rampant in
also.
The purpose of Article 14’s equal protection clause is to offer
redress to vulnerable groups assailed by discriminatory practices.
Section 377’s prohibition of non-procreative sexual acts criminalizes
predominantly homosexual sexual relations and is propelled by a
prejudicial and irrational notion of sex. It thus violates Article 14
because it disproportionately affects gay men.
Indeed, vulnerable minorities require protection from prejudice
that can only be done by judicial decision, in the absence of any
special legislative work.[5] (b) Sec. 377 of IPC, 1860 is in violation of Art. 15 of the
Constitution of
Article 15 (1) of the Indian Constitution provides that, “The
State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.”[6]
The expression “sex” is fluid and is not a static concept. It
cannot be restricted to only the biological male and female sex. It is
not an essential condition that the law expressly makes the prohibited
ground for the basis of classification. As held by the Supreme Court,
“The Court’s are always had to interpret any law by the way of
'schematic and teleological' method of interpretation. All it means is
that the judges do not go by the literal meaning of the words or by
the grammatical structure of the sentence. They go by the design of
purpose which lies behind it.”[7]
Hence, in present scenario the term “Sex” has a wider meaning
and it includes sexual orientation as well, which includes homosexual
people. The prohibition of discrimination on the ground of sex is
intended to prohibit the attachment of standard behavioural pattern to
gender. The purpose underlying the fundamental right against sex
discrimination is to prevent behaviour that treats people differently
for reason of not being in conformity with generalizations concerning
“normal” gender roles.
In the present case, section 377 criminalizes the acts of
homosexual people. Though facially neutral, the primary object and the
direct and inevitable effect is the prohibition of sexual acts between
homosexual based on their sexual orientation. It is an established
position of law that if the effect of a State action is to infringe a
fundamental right and that effect is brought about by a distinction
based on a prohibited ground (e.g. sex, race, etc), it would
constitute discrimination on the prohibited ground, however laudable
the object of the State action may be. [[8]].
In the case of the Punjab Province v. Daulat Singh[9], the SC
held that, “It is enough for a law to be struck down as being
discriminatory on a prohibited ground that the law operates so that
its effect in some cases is that some persons are discriminated only
on the basis of a prohibited ground.”
In the present case, section 377 criminalizes the acts of
homosexual people. Though facially neutral, the primary object and the
direct and inevitable effect is the prohibition of sexual acts between
homosexual based on their sexual orientation. It is an established
position of law that if the effect of a State action is to infringe a
fundamental right and that effect is brought about by a distinction
based on a prohibited ground (e.g. sex, race, etc), it would
constitute discrimination on the prohibited ground, however laudable
the object of the State action may be. [[8]].
In the case of the Punjab Province v. Daulat Singh[9], the SC
held that, “It is enough for a law to be struck down as being
discriminatory on a prohibited ground that the law operates so that
its effect in some cases is that some persons are discriminated only
on the basis of a prohibited ground.”
In the present case, the effect of section 377 is that it
disproportionately impacts homosexuals on the basis of their sexual
orientation. This was clearly foreseen and intended by the Legislature
to so impact. Therefore, section 377 constitutes discrimination on the
ground of sexual orientation and therefore on the ground of sex under
Article 15, despite being couched in facially neutral language. Hence,
the said section needs to be held ultra vires as it violates article
15 of the Constitution of India.
(c) Sec. 377 of IPC, 1860 violates Art.21 of the Constitution of India
Article 21, Indian Constitution, conforms on every person the
fundamental right to life and person liberty which has became an
inexhaustible source for many other lives.[10] These rights are as
much available to citizen as to foreigner.[11] And this article has
been given paramount position by the hon’ble Supreme Court. Homosexual
people are also included under article 21 as they are also human
being. The Supreme Court in the case of Kharak singh v. State of
The word life in the article 21 does not confine itself mere animal
existence, but the word life includes wider meaning than mere an
animal existence in the society. The inhabitation against its
deprivation extended to all those limbs and faculties by life is
enjoyed. The provision also equally prohibits the mutilation of the
body by amputating off any part of the body, or any other organ
through which the soul communicates with outer world. And sexual
orientation not being outer part of the body but if a person deprived
of being having sexual orientation this also amount to mutilation of
the body.
In Bandhua Mukti Morcha V. Union of India[13] the honorable court held:
“There are minimum human requirements which exist in order to enable a
person to live with human dignity, and no state has right to take away
action which will deprive a person of the enjoyment of this basic
essential”[14]
The basic essentials of a person’s life can be named as follows:
• Privacy
• Human Dignity
• Health
Right to Privacy
The privacy is that “area of a man’s life which in any given
circumstances a reasonable man with an understanding of the legitimate
needs of the community would think it wrong to invade”
Although Indian constitution like America does not guarantee
right to privacy explicitly, yet we may say that right to privacy is
implicit in Article 21 of the Constitution. A question arose for the
first time in Kharak Singh v. State of
privacy is included in the right to personal liberty. Justice Subba
Rao, speaking for minority, held that right to privacy though not
expressly declared in our constitution, is an essential ingredient of
the personal liberty.
In the case of R. Rajagopalan v. State of Tamil Nadu[16] , the
Supreme Court held that it is right to be let alone and a citizen has
the right to safeguard the privacy of his own, his family, marriage,
protection, motherhood, child-bearing and education among other
matter. No one can punish anything concerning the above matter without
his consent whether truthful or otherwise and whether laudatory or
critical.
As far as this matter is concerned, the impugned section
clearly violates the right to privacy guaranteed by the Constitution
as it peeps into the houses of people without their consent and still
punishes them for their private matters.
Generally, criminal provisions are justified on the basis that
they prevent harm. In the realm of sex, whether or not harm is caused
is dependent on consent. Where consent is given, a person is not
harmed and the conduct falls back within the realm of personal
autonomy that does not require policing by the State. Only where there
is no consent is criminal sanction justified.
It is also recognized that at the core of the right to privacy
are those matters related to one’s private life and intimate
relationships. This sphere of private intimacy and autonomy must allow
persons to develop human relationships without interference from the
outside community or from the State. The right to privacy is thus
premised on the proposition that there exists a zone of privacy
created by various fundamental rights into which the State cannot
intrude.
It is submitted that sexual intimacies between individuals,
whether homosexual or heterosexual, fall within the protected zone of
privacy. Section 377, by criminalizing certain consensual sexual acts,
violates the right to privacy.
Hence, the impugned section clearly violates right to privacy
of the people concerned and hence violates right to life and personal
liberty guaranteed under Constitution of India.
Human Dignity
The case law also recognizes that the right to privacy is
derived from, and intimately related to, the right of each person to
dignity. In Gobind v. State of
Supreme Court has held: “Privacy-dignity claims deserve to be examined
with care and to be denied only when an important countervailing
interest is shown to be superior”.
Dignity, then, is concerned with the rights of an
individual, and is linked to personal self-realization and autonomy.
If the right to privacy derives from a respect for human dignity, it
must also be an individualistic right, accruing to a person wherever
he may be.
In this matter, section 377 of IPC affects dignity of a man
as it exposes a person of his sexual orientation and also punishes him
and sends him to prison which violates his right to live a dignified
life.
The Supreme Court has held that “every act that offends
against or impairs human dignity would constitute deprivation pro
tanto of this right to live and it would have to be in accordance with
reasonable, fair and just procedure established by law which stands
the test of other fundamental rights.”[18]
In the present case, section 377, by criminalizing private,
consensual sex between adults, offends against and impairs the
expression of the human self of sexuality, more particularly men who
have sex with men, and thus violates their right to live with dignity.
Further, it does not stand the test of other fundamental
rights. As has been shown above, section 377 is not reasonable, fair
or just law according to conditions of article 14, 15 (1)
Right to Health
These gay populations are mostly reluctant to reveal same sex
behaviour due to the fear of law enforcement agencies, keeping a large
section invisible and unreachable and pushing the infection
underground, making it difficult for Health Ministry to access them.
Officials of UNAIDS say there is no data on the gay population in
India as even collecting such information is illegal under Section
377.[19] It gives clear idea of problem created by the impugned
section that because of this section, even UN officials are not able
to prevent AIDS in India.
As said in affidavit filed by NACO in NAZ Foundation v. Union
of India which is a sub-judice matter, that “…….the enforcement of
section 377 of IPC can adversely contribute to pushing the infection
underground, make risky sexual practices go unnoticed and unaddressed.
The fear of harassment by law enforcement agencies leads to sex being
hurried, leaving partners without the option to consider or negotiate
safer sex practices. As MSM groups lack ''safe place'' and utilize
public places such as railway stations etc, they become vulnerable to
harassment and abuse by the police. The hidden nature of MSM groups
further leads to poor access to condom, healthcare services and safe
sex information. This constantly inhibits/impedes interventions under
the National AIDS Control Programme aimed at preventing spread of
HIV/AIDS by promoting safe sexual practices……..”[20] Thus, because of the existence of Section 377 of IPC, HIV is
spreading too much and it can be out of control if necessary steps are
not taken within few months. Spreading of HIV makes life of every
people miserable and threatened. Hence, the impugned section should be
repealed for the betterment of health of the people.
Thus, Sec. 377 violates the Basic Features of the Constitution of India.
Section 377 of IPC denies the objectives enshrined in the preamble
namely: Justice,
objectives constitute the Basic Feature of the Constitution.[21]
Further, it denies equality and equal protection and makes inequality
and hence it is clear violation of Basic Feature of the Constitution
and hence liable to be interfered with by the court.[22]
Initiation to Opposing Section 377
In 2001 Naz Foundation (an NGO related to HIV/Aids issues) filed
a petition in the Delhi High Court asking for Section 377 to be read
down by decriminalising consensual sex among adults. In September
2003, the Government insisted on retaining Section 377 on the grounds
that Indian initiation society’s disapproval of homosexuality was
strong enough to justify it being treated as a criminal offence even
where adults indulge in it in private.
In February 2006, the Supreme Court ordered the High Court to
reconsider the constitutional validity of Section 377. The Naz
Foundation petition was supported by Voices Against 377, comprising 12
organisations across the country while it was being opposed by the
government of
(represented by the Ministries of Health and Law) has been conflicted
while many of its affiliates demanded decriminalisation.
Naco (National Aids Control Organisation) demanded the scrapping of
Section 377 as it was obstructing effective health interventions. The
172nd report of the Law Commission of India and the recommendations of
the National Planning Commission for the 11th Five Year Plan also
demanded decriminalisation of homosexuality. In the last two decades,
LGBT activism played a major role in creating awareness on the issue.
In 2006 writer Vikram Seth released a public letter demanding that the
cruel law be struck down. The letter was supported by a large number
of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli
Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen,
Mrinalini Sarabhai and demanded the scrapping of the brutal law that
punitively criminalises romantic love and private, consensual sexual
acts between adults of the same sex while being used to systematically
persecute, blackmail, arrest and terrorise sexual minorities. Amartya
Sen also asked for an abolition of the colonial era monstrosity that
ran contrary to the enhancement of human freedom and
commitment to democracy and human rights. Like all laws, Section 377
was used both inside and outside the courtroom
--RIJIT SARKAR (DEPARTMENT OF LAW CALCUTTA UNIVERSITY)
--------------------------------------------------------------------------------
[1] P. M. Bakshi, Constitution of India; Universal Law Publishing Co.
Pvt. Ltd. (2003), pp. 13.
[2] P. M. Bakshi, Constitution of
Pvt. Ltd. (2003), pp. 16.
[3] Kartar Singh v. State of
[4] K. A. Abbas v. Union of
[5] Vishaka v. State of
[6] P. M. Bakshi, Constitution of
Pvt. Ltd. (2003), pp. 26.
[7] Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730.
[8] State of
[9] AIR 1946 PC 66.
[10] Bhagvati, J. in Maneka Ganghi v. Unioun of
[11] National Human Right Commission v. State of
(1996) 1 SCC 742.
[12] AIR 1963 SC 1295.
[13] AIR 1984 SC 802.
[14] ibid, at pp. 811.
[15] AIR 1963 SC 1295
[16] (1994) 6 SCC 632.
[17] (1975) 2 SCC 148, at page 156, para 22
[18] Francis Coralie Mullin v. Administrator, Union Territory of
Delhi, (1981) 1 SCC 608, at page 619, para 8
[19] Times of India, 17 September 2006
http://timesofindia.indiatimes.com/articleshow/1998671.cms
[20] Affidavit by M.L.SONI, Under Secretary to the Government of
India, National AIDS Control Organization, Ministry of Health and
Family Welfare
[21] Durga Das Basu, Shorter Constitution of India, Wadhwa And Co.
(2006); pp. 1651
[22] Durga Das Basu, Shorter Constitution of India, Wadhwa And Co.
(2006); pp. 1650
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