High Court judgment de-criminalises homosexuality
Law is what is legislated; law is also what the courts declare. In the constitutional scheme, the Union and the States have distinct spheres of legislative competence, while some subjects of legislative power of the Union and the States may also overlap. The validity of legislation may be tested on the question of power to legislate on a particular subject or whether it conflicts with any right guaranteed under the constitution. In recent history, no judgment of a Court has generated as much interest ( and therefore controversy as well) as the judgment of the Delhi High Court striking down a portion of the Section 377 IPC that criminalizes consensual sexual practices between adults of the same sex as violating the fundamental tenets of equality, privacy and right to life.
The forensic course in the judgment
The judgment traces the penal provision to owe its origin to Judeo-Christian moral and ethical standards (IPC was drafted by Lord Macaulay and introduced in 1861), and while the English law was reformed by Sexual Offences Act, 1967, de-criminalising homosexuality, the law has stayed in statue book in India. The government of India spoke through two voices: the Ministry of Home Affairs sought to justify the retention of section 377, where as the Ministry of Health Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. Ideas of personal liberty, right to privacy, social morality and decency are dynamic concepts that change with times and the legal regimes that respect individual liberty have changed their laws either through pro-active legislation or through judgments striking down such discriminatory laws. Lesbian, Gay, Bi-sexual and Tran-sexual (LGBT) propensities are but emotions of a minority and protection of minority rights is the new paradigm to understanding concepts of equality and non-discrimination.
Why the existing law is said to be wrong
The judgment expatiates that even if the penal provisions are not enforced (the CJI is reported to have remarked that he had not come by any instance of a case filed against consenting adults for practices of homosexuality in his long judicial career) they reduce gay men and women as “unapprehended felons”. The judgment records the contention that a law that proscribes homosexuality to be wrong in legal principle because they exceed the proper ambit and function of the criminal law in a modern society; wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change. In this respect they are like other laws of colonial times that disadvantage people on the ground of their race or sex; wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS.
How it conflicts with constitutional morality
In any way, the judgment states, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private. Section 377 IPC is facially neutral and it apparently targets not identities, but in its operation it does end up unfairly targeting a particular community. Sexual orientation is analogous to sex and discrimination on the basis of sexual orientation is not permitted by the fundamental rights protected under Articles 14 (equality), 15 (discrimination on the ground of sex), 19 (fundamental freedom guaranteeing right to privacy) and 21 ( right to personal life and liberty). The judgment examines the diverse legal regimes across the globe and takes the whiff of opinions that is blowing around to be suffused in Indian Constitutional notions of equality, privacy, personal dignity and morality.
Objections that the judgment does not address
The objections have been on the basis that (i) the judgment is against Indian sense of morality, tradition and cultural values. In other words, west is west; east is east; (ii) It is against our religion: Hinduism, Islam, Christianity, Jainism and Buddhism proscribe such sexual practices as sins; (iii) Homosexuality is a disease. It can be cured. Legitimizing it is allowing an illness to permeate into our society and fester the healthy environment; (iv) Parental objections will see a new genre of runaway gay couples coming to police stations and courts seeking for protection of their lives and liberty. Surprisingly, the judgment that runs into 105 pages written with remarkable lucidity, verve and logical persuasiveness does not examine religious objections or what are perceived as against Indian culture. One may suspect that the omission is deliberate. The court had delivered the judgment on the strength of legal reasoning that is distanced from religion and dogma. The special leave petitions to Supreme Court, as reported through the press, have challenged the judgment only on the grounds that the judgment does not deal with.
Religious texts on homosexuality
Hindu religious texts focus on love and transcendental at that. Gopika’s love for Radha or of the cowherd boys at Vrindavan to Krishna, as depicted in Bhagvatam cannot simply be treated as vulgar. The focus here is entirely on love and there is no claim or suggestion about the degree of same-sex intimacy involved other than what is described. Many of the world’s great religions have pondered as to whether or not there is sex life in the spiritual world, but in Hinduism there is no debate. Swami Prabhupada, the founder of Hare Krishna movement would expound: ‘The pastimes of Krsna with the gopis clearly demonstrate that pure, unadulterated sex enjoyment exists in the transcendental realm.’ At lesser levels of human existence, sexual preferences between members of the same sex were immortalized in 10th century Khajraho’s friezes. This is not to suggest that they were widely prevalent. They perhaps reflect the view of a powerful, creative minority; and the expression of views of minority was respected. In Jainism, liberation from material existence is achieved through extreme bodily mortifications. Monks forswear all sexual contact; the laity may marry, but must remain faithful to their spouses. Jainism is so unsympathetic to sexual contacts that it is doubtful, if it approved of homosexuality (see Sutrakritangu 1.9.10, 10.13). Buddhism founded a generation later was less rigorous and struck a middle ground, in which liberation is achieved by casting away desires. Monks and nuns were to observe chastity and the religious texts do not seem to favour homosexuality, but as it evolved in their practices in China, Japan and some East Asian countries, homosexuality was tolerated. Both Islam and Christianity through their Books, Koran(7:80-82; 27:165-175; 27:55-58; 29:28-29; 4:15-16) and Bible (there are innumerable references and hence to state a few: Levitcus 18:22, 20:13; Deuteronomy 23:17) treat homosexuality as deadly sins.
Manusmriti refers to a homosexual as kliba. The references in the text are: causing an injury to a priest, smelling wine or things that are not be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste (11.68); If a man has shed his semen in women born of the same womb as himself, with the wife of his friend or his son, with virgins or women of the lowest casted, he should carry out the vow for violating the guru’s marriage-bed (11.171); If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘Painful Heating’ vow (11.174). Kautalya’s Arthasastra states: Intercourse with a woman other than through the vagina is punishable (4.13.40); male homosexuality is punishable (4.13.40).
The debate will continue
It is irrefutable that religious texts are important sources of law and social practices. To that extent, law will follow religious prescriptions, but it is also true that zeal for reformation has taken the breadth of law to traverse beyond the confines of religion. The Hindu laws of succession, adoption, maintenance, guardianship, etc., have undergone several changes that will have no moorings with the customary Mitakshara or Dayabhaga laws. Again, except that Manusmriti has a historical value, no one is prepared to accept whatever Manu’s text states, as for instance, varnashrama dharma. Kautalya’s Arthasastra holds no more interest than how state craft was practiced in ancient India and it is doubtful if it has any contemporary relevance. Muslim personal laws have generally followed Koranic prescriptions and Hadith but criminal laws are same for all communities and punishments prescribed in Koran offer no guidance to the punishments prescribed under the Indian Penal laws for persons practicing Islam. Indeed, some of the Islamic countries have taken conscious decisions, even on the subject of homosexuality by not terming them as offences. The examples in Turkey, Jordan, Egypt and Mali are cases in point. Notwithstanding the strong biblical views on homosexuality, a host of countries that practice Christianity have changed their laws. The other opinions are, if homosexuality is a disease (many modern medical experts would disagree), why punish a sick person, if you do not punish persons having AIDS or cancer? Some may still ask ,if parental objections arise to same sex marriages, why apply a different yardstick, when law protects runaway couples seeking court’s help through police support to uphold freedom of choice and individual liberty? A judgment always does not change the course of history or annihilate deeply embedded prejudices. It only shows another way; another line of thinking. And, in Delhi High Court judgment, it finds its legitimacy from the Indian Constitution and not from religious texts.