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Manish Lakhawat - Hidayatullah National Law University Raipur (Chhattisgarh)

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It takes great courage to say, I am a homosexual. It needs even greater humbleness to put up with the statement: What did you say? You are a homosexual. The complexity of the homosexual behavior generates an obvious question in my mind as to why society looks down upon deviant sexual orientations like homosexuality. Is it because the homosexuals behave in a way which is not normal, or which is not practiced by the ‘bulk’? Or is it because the ‘bulk’ tries to ignore the harsh trutha truth which attacks his conscience generated out of his socialization that the ‘bulk’ of such bulk does have deviant sexual tendencies at some moment of time, which even gets manifested? The society at large impute taboos and stigmatizes such deviant persons. Does the society really want to curb such deviance or is it the means for the society to pacify its inner personal war between the conscience and the manifested act in some dark corner? One, alone, perhaps cannot answer these questions because it needs an in-depth analysis of human psychology, the finer strands of social structure and above all the ‘unknown’ philosophy of ‘inner self’.

Homosexuality is a type of sexual orientation characterized by sexual desire or romantic love exclusively or almost exclusively for people who are identified as being of the same sex. People who are homosexual, particularly males, are also known as ‘gay’ and female homosexuals are known as ‘lesbians’. It can also be defined as sexual relations with another of the same sex regardless of one’s sexual orientation, self-identification or gender identity.

Even when the gay relationships are fact of Indian social life, it is yet to be proposed a single reason why same sex marriage is bad for the country that is not based on religion. The traditional Indian society has always taken a very shabby, narrow and don’t tell about it to anyone type of look at ‘sex’. But with the import of western life-style in metro cities and revolution in information technology (which includes access to satellite channels and electronic media) the outlook of people, especially that of younger generations and social activists, towards sex is positively changing. The great debate between the moralists and liberalists can be, perhaps, best shown with the help of Tihar Jail Sex Imbroglio. In India, homosexuality is not directly targeted by law. However, it is indirectly regulated by section 377 of the Indian Penal Code, which makes the act of carnal intercourse against the order of nature with any man, woman or animal an offence. Between, February and April 1994, there were several reports in national newspapers about the existence of rampant homosexuality at Tihar jail in New Delhi. The doctors recommended that condoms be provided to prisoners to protect them from HIV, but the then Inspector General of Prisons, Kiran Bedi, opposed this view saying that it would encourage homosexuality which is an offence.

The incident took form of a cultural debate where the moralists opposed homosexuality branding it as immoral, unnatural and foreign contaminant. This was challenged through a counter-cultural move where the liberalist argued that homosexuality had always constituted a part of Indian culture as was evident from passages in the Kamasutra. This controversy climaxed in the filing of two different petitions in the Delhi High Court, one of them being filed by AIDS Bhedbav Virodhi Andolan (ABVA) against the Union of India challenging the constitutional validity of section 377 of the IPC. The petitioners argued that ancient India art and sculpture testifies to the prevalence of homosexuality in India to a greater or lesser extent. The petition was replete with references to homosexuality in the texts of Kama Sutra. The petitioners argued that the Kama Sutra, which was compiled as early as the fourth century A.D., contains an entire chapter on gay and lesbian sex. The ABVA’s strategy was intended to refute the idea that homosexuality was a perverted Western import by demonstrating that it was materially inscribed in the historical context of India. It also serves to contest the pervasive heterosexist attitudes that dismiss gay/lesbian/bisexual women and men as the embodied imperfections of Westernisation.

In India there exists 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 homoerotic carvings among the erotic carvings on the Hindu temples of Khajuraho in Konark and Puri; and on the great Buddhist monument at Borabordur in Indonesia are well known. The Kamasutra mentions a number of homosexual positions in chapter 8th of part III. Indian kings also tended to have a number of boys in their harems.

Nevertheless, today the most shameful fact is that there are many incidents for the harassment of homosexuals. These incidents of harassment of the homosexual community and social discrimination in India remain widespread despite years of campaigning by sexually rights groups in the country. The biggest hurdle faced by the campaign to fight discrimination based on sexual orientation in India is section 377 of the Indian Penal Code, which criminalizes unnatural sex. The law, a remnant of Victorian morality, was made in 1860, when any sexual activity that was not meant for procreation was considered a sin.
It is the time for us to change our perceptions and visualizations vis-ŕ-vis same sex marriages. We must accept that the main aim of sexual activities is not only procreation but also enjoyment of human life. It is also the time for us to protest for the rights of homosexuals and for decriminalizing the homosexual conduct. Therefore, I have attempted to highlight some reasons for the legalization of homosexuality (same sex relationship).

Reasons for the legalization of Same sex relationship:
I. Constitutional Point of View
Section 377 of IPC violates Fundamental Rights guaranteed under Part III of the Constitution
Article 14 of the Constitution provides us equality before law. The intention of this Article is that every person is equal in the eye of the law. Then why homosexuals are not treated equally with heterosexuals? This Article provides us equal protection of laws and says that the basis of the classification must have a rational or reasonable nexus with the object sought to be achieved by the legislation. However, in criminalizing homosexuality in sec. 377, the classification between natural sex and unnatural sex is that those sexual activities that are performed for procreation are natural and those that are not performed for procreation are unnatural. Thence, it labels all forms of non-procreative sexual acts as unnatural. The object that sought to be achieved by the legislation through this provision is to create a public code of sexual morality but this object does not have a reasonable and rational nexus with the classification of natural and unnatural sex.

The unreasonable classification in this provision is based on the fact that the main aim of any sexual activity is procreation. This classification seems to be unreasonable in present scenario as it took place in 1860 when any sexual activity that was not meant for procreation was considered a sin. At that time there was no concept of individuality. Individuals were attached with their caste, society, religion etc. They were not independent. Now the individuals become more independent and rational. For them, procreation is not the main aim of sexual activities. Moreover, homosexual activity can never be termed as unnatural. Modern understandings of psychiatry and psychology, no longer view homosexuality as a disease or a disorder. Thus, the very objective of the section is facile, unscientific and based upon prejudice alone. Therefore, sec. 377, which criminalizes homosexuality relying on the unreasonable classification based on the procreation, is an absolute violation of this Article.

Article 15 says that there shall be no discrimination based on sex. The intention of this Article is that no person shall be subject to any disability, liability, restriction or condition on the ground of sex or gender. Moreover, sec. 377 criminalizes the sexual relationship between two person of same sex i.e. homosexuals. Thus, this provision of IPC discriminates against the homosexuals because of their sexuality and therefore constitutes discrimination based on sexual orientation.

Article 21 of our Constitution prohibits the state from interfering with the private personal activities and personal liberty of the individual. The term personal liberty is a compendious term to include within itself all the varieties of rights that goes to make up the ‘personal liberties’ of a person. It would include the privacy and sanctity of a person’s home as well as the dignity of the individual. According to the Supreme Court of USA in Lawrence v. Texas liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining of sex. The central idea behind the concept of personal liberty and privacy is that the quest of happiness of the individual must be fulfilled. Homosexual conduct is a very personal conduct and they do it for the sake of happiness. It is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. This Article also says that a State can deprive any person from his personal liberty and privacy according to the procedure established by law. Therefore, someone can say that Sec 377 can restrict homosexuals from their personal liberty and privacy. But in Maneka Gandhi,s case, it has been held that the State can deprive any person only then the procedure cannot be arbitrary, unfair or unreasonable. The procedure in Art. 21 must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21 would not be satisfied. This provision of IPC is an arbitrary, unfair and unreasonable provision because it criminalizes homosexuals because of their infertility or unproductiveness that gives a very narrow sense of classification between homosexuals and heterosexuals. Thus, by criminalizing homosexuality in sec. 377, it restricts them to enjoy their right to personal liberty and privacy given in Article 21 and this procedure is arbitrary, unfair and unreasonable, therefore it is not a procedure at all.

The meaning and content of Fundamental Rights guaranteed in the Constitution are of sufficient amplitude to encompass all the facets of gender equality including same sex relationship. Moreover, sec. 377 criminalizes same sex relationship. Thus, this provision is not consistent with the Fundamental Rights and according to Article 13 of our constitution, which says that those laws, which are inconsistent with Fundamental Rights, must be void, sec. 377 of IPC is void. Not the whole section is void; one part of this section is void and after applying the doctrine of severability this provision of IPC must be amended.

II. Sociological Point of View
Wolfenden Report and Hart-Devlin Debate: Law shall not intervene in the private life of the people.
In 1953, British Parliament appointed a Home Office departmental committee of 15 men and women
"to consider . . . the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts". This committee is better known as Wolfenden Report, after Lord Wolfenden, the chairperson of the committee. This report says that the law’s function is to preserve public order and decency, to protect the citizens from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others. This Committee further wrote that it is not the function of the law to intervene in the private life of the citizens, or to seek to enforce any particular pattern of behavior. Homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects. The theme of this committee is that crimes are those acts that affect the society and homosexuality is not a crime unless it affects the society. So homosexual behavior was no longer a crime unless it affects the society. In India, there is no any negative effect of homosexuality on our society. In spite of this fact, we are continuously rejecting the homosexuality with the reasons that are based on only morality not on reasonableness or fairness. Following the Wolfenden Report there was a debate between Lord Devlin and Prof. H.L.A. Hart on individual moral freedom and social control. In this debate Devlin argued that every society has a variety of moral principles. Without these moral principles a society cannot survive. Society can use the law to preserve morality. Whereas Hart supported the Wolfenden report and argued that law cannot interfere in personal morality. According to Hart, Homosexuality is a very personal conduct and does not affect the society so law cannot interfere in this personal conduct until and unless it does not affect the society.

Same Sex Marriages
Each individual's journey through life is unique. Some will make this journey alone, others in loving relationships - maybe in marriage or other forms of commitment. We need to ponder our own choices and try to understand the choices of others. Love has many shapes  and colors and is not finite. It can not be measured or defined in terms of sexual orientation. "

Same sex marriages are also the burning issue of present scenario. Same sex marriage is a marriage between individuals who are of the same gender. It is also called same gender marriage, gay marriage or homosexual marriage. Lawrence J Hatter, author of ‘Changing Homosexuality in the Male’, has defined same sex marriage as one who is motivated, in adult life, by a definite preferential erotic attraction to member of the same sex and who usually, but not necessarily, engages in overt sexual relations with them. Thence analogically same sex marriage is nothing but a marriage between two persons who are of same gender. I am using the term "same-sex marriage" in place of the more commonly used "homosexual marriage" because it is more precise and inclusive. Some individuals with a bisexual orientation form loving committed same-sex relationships and want to marry. The term "same-sex marriage" covers them as well as homosexuals.

Definition of marriage shall be extended to include same sex marriages.
The traditional definition of marriage is ‘marriage is the union of a man and a woman’ and so cannot be extended to same sex couples. They may live together and love one another but cannot, on this argument, be ‘married’. But that is to dodge the real question- why not?- and to obscure the real nature of marriage, which is a binding commitment at once legal, social and personal, between two people to take on special obligations to one another. If homosexuals want to make such marital commitments to one another, and, to society, then why should they be prevented from doing so? They want to marry precisely because they see marriage as important: they want the symbolism that marriage brings, the extra sense of obligation and commitment, as well as the social recognition. The real definition of marriage is that marriage is a companionship of two persons with identical values of life and living. It is a tool for developing honest, voluntary, long lasting and mutually accountable relationship between two people. It was created for human kind not the opposite. It is the time for us to change our concepts of marriage and to recognize same sex marriages as valid marriages.

This is a primary objection against homosexuals that they cannot bear children. But no one tests heterosexuals for their fertility or desire to raise children before determining their suitability of marriage. In as much as any heterosexual couple that has remained childless has been recognized as married, it is hypothetical to resort to this fallacious logic in same sex marriages

Conclusion
It is evident, from aforesaid discussions, that homosexuality is a complex phenomenon endemic to all societies from the early days of their formation. Although, the practice of homosexuality may have been in minority, nevertheless, it has been a part of society. It can be said without hesitation that there is a pattern of discrimination against homosexuals which pervades most dimensions of our cultural life, and that is rooted in a heterocentric system that shapes our legal, economic, political, social, interpersonal, familial, historical, educational, and ecclesiastical institutions. The root cause of this pattern of discrimination is perhaps a
reasoned system of bias regarding sexual orientation that places heterosexuality as the normative form of human sexuality and thereby connotes prejudice against anyone who falls outside of that form. This biasness perhaps arises out of the assumption that heterosexuality is a normative species, but it might not be so for all. For some, heterosexuality may be only a ‘common practice’ and it is not necessary that a common practice must always be normative as well. Only because a practice is common to a large number of people does not makes it necessarily normative. Most of the commuters in a local train board it without buying tickets, but can this be called normative

I can see the rising sun of same sex relationship in India. The Supreme Court has rejected the Delhi High Court order on same sex relationships in Naz Foundation’s case. Finally, the unjust section 377 of the IPC may see a change and for the better. Wisdom seems to have finally spread to Indian shores as well. The sentiments of the Supreme Court point to a new, moderate and modern India. This humanitarian step by the Supreme Court is a welcome respite for persons who in the past have been harassed, persecuted, beaten and blackmailed. The British amended the very same law they had once promulgated in India. Now sec. 377 seems to be outdated and a moral of a bygone era. In keeping with international trends in jurisprudence and legal discourse, it is important that our law is also brought in line with international standards and the section be repealed.

***********************
End Notes:
Aids Bhedbhav Virodhi Andolan V. Union Of India (civil writ petition no.1745of 1994)
Gaur, K.D., The Indian Penal Code, P. 621,( Universal Law Publishing, New Delhi, 2004)
Kharak Singh v. State of UP [ AIR (1963) SC 1295 ]
Munn v. Illinois [ (1877) 94 US 113 ]
Maneka Gandhi v. Union of India [ AIR 1978 SC 597 ]
From the Statement of Affirmation and Reconciliation by the Quaker meeting in Aotearoa


author's contact information!The  author can be reached at :manish_bana@legalserviceindia.com

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