Tuesday, October 6, 2009

Sexual liberty and the Indian Constitution

- Anu Salelkar (M.A. Sociology, II year)

Considered by many to be an archaic law based on religious and conservative notions of sexuality and gender, the July 2009 Judgment of the Delhi High Court declaring the criminalization of consensual homosexual relations between adults under Section 377 of the Indian Penal Code to be violative of the rights guaranteed under the Constitution of India was welcomed by the tears, sweat and joy of those who’ve spent years fighting against it. The law as it stands in the IPC is placed under the Chapter dealing with “offences affecting the human body.”

"377. Unnatural Offence- whoever voluntarily has carnal intercourse against the order of nature with any man, woman 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".

The Public Interest Litigation challenging the validity of this Section was filed by the Naz Foundation, an NGO dedicated to HIV/AIDS outreach, in 2001. This petition slowly gathered support from the National AIDS Control Organization (NACO) and ‘Voices Against 377’ which is a coalition of twelve women’s rights, child rights, human rights and LGBT (lesbian, gay, bisexual and transgendered) groups in 2006. The basis of the Petition was that Section 377 infringed upon the Fundamental Rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. Further, a survey of Prosecutions under Section 377 have shown it to primarily be employed in cases of child sexual abuse and hence it was prayed that the scope of the law should be restricted to apply only to non-consensual penile-non vaginal sex and also penile-non vaginal sex with minors. The law as it is portrays discrimination of the state towards non-heterosexual persons and other gender and sexual minorities. The Section serves as a ‘weapon of abuse’ especially as used by the police and creates negative stereotypes and beliefs about sexual minorities. In addition to this, the Section also cripples HIV/AIDS prevention efforts by criminalizing the high risk groups in society, as individuals are reluctant to reveal same sex behavior for fear of the law.

The judgment of Naz Foundation vs. Union of India and Others (2009) appeals to the notions of dignity, privacy and equality. The extensive scope given to Article 21 of the Constitution of India through various Judgments of the Supreme Court ensures that every citizen is given the right to life and protection of their dignity, autonomy and privacy, which would include private, consensual sexual relations. In addition to that, the judgment develops a concept of privacy not limited to the home. The concept of privacy “deals with persons not places” as the sexual orientation of a person is a part of their identity, and they cannot leave their identity at home. According to the judgment, the root of dignity is the autonomy of private will, and a person’s freedom of choice and of action. Article 14 of the Constitution of India guarantees the right to equality to all its citizens. Hence a person or a section of people cannot be discriminated against due to their sexual orientation.

In addition to this, Article 15 of the Constitution forbids discrimination on the basis of certain characteristics, which includes sex. The Court took an interesting view by holding that sex cannot be restricted to its biological definition but includes sexual orientation as well. Also, Section 377 can be seen as infringing upon Articles 19(1) (a), (b), (c) and (d) by curtailing an individual’s ability to make a personal statement, right to freedom of movement and freedom of association. In conclusion the Judgment speaks of a society that can display inclusiveness and understanding.

Although this Judgment is highly progressive, and is definitely a step towards a more accepting legal system, it must be remembered that its precedent value is limited to the jurisdiction of the Delhi High Court, and that in other States this Judgment would only have persuasive value. In theory, even a Supreme Court Judgment in consonance with the Judgment of the Naz Foundation has a possibility of being overruled in the future by a Bench of higher strength (with a higher number of judges). To avoid any future conflict, the need now is for an amendment in the Indian Penal Code decriminalizing consensual same - sex relations, as well as a review of the definition of other sexual offences, including rape. A similar suggestion was given in the 172nd report of the Law Commission of India. And since the Constitution would be completing 60 years next year, it’s high time that archaic laws and colonial relics should be left behind.

To view the complete judgement, click here. (Editors) 


Ajinkya Chikte said...

Nicely written.
But laws are easier to change than people. Acceptance was and continues to be an issue for sexual minorities. The law has only led pseudo-sympathizers to support, without understanding many aspects of the matter, a set of people campaigning for another set of people they believe are persecuted by other people. These were just voices against the government that were gifted their end of the bargain on paper. In society, however, archaic laws bear no relevance, overruled or otherwise, and archaic mindsets of people who are running our country, our jobs, houses, pockets and lives will always, as they have always, continue to discriminate against homosexuals. Much like many other sects of society who have been, are and will always be singled out and victimized. In one way or another.
As naive as it may sound, its not actually the laws that need to change. People do.
But people don't.

Anonymous said...

its not actually the laws that need to change. People do.

Yes Ajinkya, becuase it´s not important that black people can no longer be held as slaves since there is still racism and the many countries that have made laws against gender discrimination have all done it in vain because there is still sexism....

By these laws you are pulling away an argument for gay-bashers and that cannot be anything but good. Sure, people´s mindset often changes slower than mindsets, sometimes it is better to hope for inter-generational change for things to get better, but they do.

Very few nowadays belive that woman cannot drive cars or that black people are closer related to monkies then to white people. People change and one way to show people the way is by changing the mindset of an authority, such as the law and letting it lead the way.

Ajinkya Chikte said...

'People change and one way to show people the way is by changing the mindset of an authority, such as the law and letting it lead the way.'

I totally agree, Jonas. But in a country known for its lawlessness, if we consider how few people actually respect the law, how far do you think this will affect the mentality a group of random men from mistreating, manhandling or even roughing up an individual of the same sex who does not share their sexual orientation?
There are people who drive rash with no knowledge of any traffic law or order, there are others who beat up people on pavements without thinking twice about any authority, rules or reason.
So if many larger, louder and probably more grave laws are openly being disregarded and disrespected by various individuals, groups and organizations across the country, with no tolerance towards even their fellow man who may be like them in every respect, do you actually believe that a small change in legislature could, even way down the line, affect that very person's attitude towards who they consider 'different' or 'deviant' into making them more socially considerate?
Also, a large majority of the people here, in this country, do believe that women cannot drive cars. Or do anything else but raise kids. They haven't changed. And its been more than sixty years now trying to enforce an arguably rational constitution upon a people that don't want to embrace anything, let alone homosexuality.

Nithyanand said...

First of all,thanks for creating such a forum.

Now,the views that I've to express are not quite on the topic of homosexuality as such.I hope I'm

allowed to broaden the scope of this discussion to include all of sexuality.I'll get straight to the


I'm a prude.Yes,that means,in particular,sexual imagery makes me uncomfortable ( and not just in

the obvious ways!). The article published includes the words "sexual minorities." I think it's safe to

say that I fall in a sexual minority.I prefer not to have sexual imagery thrust upon me from all

sides,24 X 7.If I go outside,I find banners and posters of scantily-clad women in provocative poses

and the only way to avoid them is to shut my eyes and walk.Not very practical.The article also talks

about "dignity,privacy and equality".I can't see how that's maintained for people like me in an

increasingly sexualised global culture.Whither "inclusiveness"?....and no,I'm no right-winger claiming to protect "Indian culture" !

Nithyanand said...

I know I'm beginning to get provocative here.But,the age of consent for sex ,I believe,(whether penile,non-penile,vaginal or any other variation thereof!) is 18.I wonder if there will soon be a debate worldwide on reducing this.After all,boys and girls do get sexually matured much earlier than this.What then? How about making it 16 years? 14? What would be the line separating this and paedophilia then?Why is paedophilia,if the "child" consents,be considered illegal and unnatural?

Ajinkya Chikte said...

Dude, Nithyanand, man. Firstly, I'm really sorry, man.
Secondly, where're you taking this with your last post? What's one supposed to say now? What's the context, even?

Nithyanand said...

The context,quite plainly,is sexual liberty.All I'm asking is how far we are willing to go to accept "sexual minorities" and pass legislations to decriminalise certain activities. I hope I haven't asked irrelevant questions.I did mention I was enlargening the scope of the debate.If by doing so,I've gone out of bounds,then I apologise.I just thought it was a matter worth pursuing.

Petson peter said...

Hello Ms. Anu, a thoughtful article. I have been working in YRG CARE a NGO working for HIV/AIDS from Chennai and had also organised a Discussion on Homophobia in Chennai as part of Action Plus last February. From our surveys we learned people remain ignorant to homosexuality and this give birth to bizarre myths. The truth is prosecution with section 377 has been very rare but people of alternate sexuality had been carrying a false criminal identity for just being their natural self. I believe the judgment will start a change