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Homosexuality and Section-377 IPC

By: Aditi Sharma, Advocate

Introduction:

People who refuse to bring all expressions of sexuality under one homogenous umbrella to please society. People who reaffirm their rejection of singular identities. People are beaten, harassed, and imprisoned simply because of their sexual orientation. They dare to dream of an identity that allows them to marry and live with their loved ones; society recognises that good parenting has nothing to do with sexual orientation, and workplaces are free from prejudice and discrimination.
But all these dreams were crushed.
This is the world of gay, lesbian and bisexual people, the sexual minorities that have brought India and the world some of the most creative people.
Many celebrities and successful people like Elton John, Tom Cruise and George Michael have overcome the fact that they are gay and show the world that they are creative and enjoy life fully. It has nothing to do with your sexual orientation.

What is Homosexuality?

Homosexuals are as normal as “you” and “me”. But they are banished and persecuted by law just because they love “their kind.” And branded ‘queer’ and ‘aberrant’ – squarely not what they are.

Homosexuals are normal people who are attracted to their gender. Homosexuality is a sexual orientation or orientation characterised by romantic or sexual desire or attraction to members of the same sex. The term usually refers to an exclusive or predominant sexual orientation towards people of the same sex and is distinguished from both bisexuality and heterosexuality. In addition to sexual orientation, homosexuality is also used for same-sex sexual behaviour.
For women, love and sexual desire for other women are also called ‘lesbian’. The term “gay” is used primarily for men but refers to homosexuals of both sexes. Sexually oriented homosexuals are sometimes referred to as homosexuals. Many people consider the term “homosexual” derogatory or clinical because of its cold and antiseptic connotations, mainly when applied to individuals.
Homosexuality, like heterosexuality, is a direction that is not unnatural. Society will change and embrace this direction – what remains unchanged is India’s legal opinion.

Section 377, IPC: Irrelevance in Modern Context:
Section 377 of the Indian Penal Code was enacted by the British in 1860. Ironically, the British drafted this section while replacing permissive Indian attitudes towards sex with oppressive ones. This law was repealed in Britain in 1967. This section criminalises “sex crimes against the natural order.” What constitutes a natural order is nowhere defined. Still, court decisions over the past century and a half have extended the application of this section to all possible forms of sexual expression between two men. Attempts have been made, without success, to apply the law to cases of homosexuality whenever the law or authorities come across them. Homosexuality is criminalised in India under colonial rule dating back to the mid-19th century.

Section 377 of the IPC, assembled in 1860, states:
Any person who voluntarily has physical relations with a man, woman, or animal, contrary to the order of nature, shall be punished with life imprisonment or imprisonment for a term not exceeding ten years and a fine.

Clarification – Insertion is sufficient to establish the intercourse necessary for the crimes described in this section.
In all this time, very few cases related to this law have reached the level of the High Court, but the law remains a powerful tool of repression. Transgender people’s traditional social groups provide immunity to mercenary police who extort money, indulge in violence, or squeeze other benefits, including sexual favours. Hinder sexual health promotion activities such as HIV/AIDS interventions among same-sex attracted men. It discourages men from reporting rape and often encourages such rape by the police. In short, it disrupts the social existence of all same-sex-attracted people, undermines their dignity and self-esteem, and reduces them to subhuman levels of existence.
A prominent NGO in our country has filed a lawsuit against the constitutionality of this law in the Delhi High Court. It hesitated for two years before the government submitted a response. This has come only after immense pressure from civil society organisations and the passing of some strict regulations by the courts. While its dithering can be understood as a tactic to settle another troubled case in the jungle of nearly half a million lawsuits overloading India’s judiciary, the substance of his response reveals the constraints of culture.

Three things can be said about the government's attitude in this case of homosexuality:

  1. The state has the function and obligation to stop “unnatural sexual acts”; otherwise, the social order will collapse, and the law will lose its legitimacy.
  2. Our society does not tolerate homosexuality, so the criminalisation of homosexuality is justified regardless of the universality of human rights and the universal application of fundamental rights and freedoms; and
  3. It’s not ours; it’s what’s happening in the West; we don’t need to copy it. We don’t have to imitate it. In other words, the three pillars of classical culture claim to make people like us criminals.

So why is this a problem?

We know that governments have no authority to interfere in the private sexual practices of two consenting adults, regardless of their interpretation of what constitutes natural or unnatural sexual conduct. Repeatedly insisting on cultural arguments risks jeopardising the gains made by the women’s rights movement or by the civil rights movement, the movement to elevate Dalits and other oppressed castes. There is a problem- a multicultural and tolerant society, achievements in pursuing secularism, etc. All these movements are against the belief systems of the prevailing majority, and we are losing all their accomplishments. It’s a price that I don’t think is worth it.

We know that governments have no authority to interfere in the private sexual practices of two consenting adults, regardless of their interpretation of what constitutes natural or unnatural sexual conduct. Repeatedly insisting on cultural arguments risks jeopardising the gains made by the women’s rights movement or by the civil rights movement, the movement to elevate Dalits and other oppressed castes. There is a problem- a multicultural and tolerant society, achievements in pursuing secularism, etc. All these movements are against the belief systems of the prevailing majority, and we are losing all their accomplishments. It’s a price that I don’t think is worth it.

There is also the danger that Indian politics and society will be forced into an increasingly fascist mode. Only one faith is accepted and culturally accepted, so it must be sanctioned by law and anything that opposes it must be suppressed, criminalised, and eradicated. Everything is justified in the name of culture. It will herald the collapse of our cherished pluralistic and tolerant society.
The universality of human rights requires that prevailing and prevailing cultural and social norms not be asserted in such a way as to circumvent or limit fundamental and constitutional rights. If we had accepted the government’s claims, many of my country’s progressive laws would never have been enacted. Many men believe they deserve a very fat dowry simply because they were born with it. If you give in to these cultural beliefs, you can stop violence and dowry-related deaths by women and dowries. We cannot overturn the laws that we have enacted.
I read that the government must retain Section 377 because it also applies to child abuse cases and is, therefore, necessary. Despite repeated struggles and demands from women’s and children’s rights groups, not to mention the LGBT organisation, which is increasingly making the same demands, India has not had a comprehensive law against child sexual abuse. It is one of the few countries that does not have male rape laws. No one understands what is stopping governments from enacting such laws when they have long ago made international commitments to enact such laws.

Why is homosexuality considered a crime?

Is homosexuality an import from the West? The only thing imported was IPC section 377, which the UK brought in and gave us. The British must have found enough freedoms and social sanctions to make homosexuality widespread and undermine Victorian morals. Homosexuality is not a Western import and has been criminalised.
Despite changes in social attitudes, homosexuals in India are vulnerable to crime because the law does not give homosexuals the sanctity they deserve. It is a distant dream for homosexuals in Japan. Here, homosexual adoptions are banned after their sexual orientation is revealed. Trust me, lesbian or gay parents who have stayed up all night to comfort their sick child know that parenting comes from far more fundamental than sexual orientation: it comes from the heart.
Looking back on this view, we can see that many moralists and religious groups viewed homosexuality as a sin. Still, European history does not include homosexuality being tolerated or mixed with heterosexuality.
Homosexuality (especially anal sex) has been viewed as a crime in many cultures despite being a consensual act, mainly because of religious mandates against homosexuality.
From a medical standpoint, many things suggest that homosexuality is a function of biology. In 1994, a study was conducted examining 40 pairs of homosexual siblings. The study reported that 33 couples shared their set of five genetic markers. In gay minorities, it was concluded that genetics play a role.
In rural India, a recent study conducted by UNFPA found that sex between men is not uncommon. A higher proportion of men reported having sex with men than with sex workers: nearly 10% of never-married men and 3% of married men had sex with another man in the past 12 months.

Laws around the World:

Today, homosexuality is recognised worldwide, and the Netherlands was the first country to legalise marriage for gay couples. While the UK has passed laws recognising gay relationships, 37 US states have banned anti-sodomy laws.

Events like Mardi Gras in Sydney, Midsummer in Melbourne, Gay and  Lesbian Pride in Johannesburg, Women’s Celebration Week in Greece and the  Gay and Lesbian Film Festival in Lisbon represent the essence of being gay.

Positive progress at the international level:

  • In 1986, Denmark made homosexual couples equal to married couples in inheritance law.
  • In 1989, the Irish Parliament passed the Anti-Incitement to Hate Act targeting hate speech against homosexuals.
  • In May 1989, the Danish parliament enacted the Registered Partnership Act for homosexual couples.
  • Same-sex couples are not allowed to adopt children together. • In 1991, the total ban on homosexual relations in Ukraine was abolished.
  • In 1992, some Dutch municipalities began accepting formal registrations for same-sex partnerships. In October 1993, a bill was introduced in Congress to level the legal protections for “registered partners” of married couples.
  • In 1990 and 1992, Estonia and Latvia abolished laws criminalising homosexuality.
  • In June 1992, Brandenburg’s German “state” issued a new constitution emphasising state recognition of non-marital partnerships. In 1993, the state of Berlin incorporated gender identity into its constitution as a criterion against discrimination.
  • In Germany, same-sex couples denied the right to marry appealed to the Supreme Court. Judges interpreted the right to marry as an exclusive right for heterosexuals (family law does not specify gender), declared the complaint inadmissible, but emphasised Congress’ mandate to bring legal protection to same-sex partnerships.
  • In 1992, a blanket ban on homosexuality was lifted in Gibraltar and the Isle of Man (both under the jurisdiction of the UK Home Office). • In the spring of 1993, the Norwegian parliament passed a Same-Sex Partnerships Act based on Danish law.
  • France, Ireland, and the Netherlands have provisions prohibiting discrimination against gays and lesbians in the workplace. • In April 1993, the Russian parliament passed a new criminal code that did not contain a ban on homosexuality.
  • Lithuania, a member of the Council of Europe in May 1993, lifted its ban on homosexuality a month after her accession.
  • In June 1993, the Irish Parliament repealed the Homosexuality Act and set the age of consent at 17.
  • In the fall of 1993, the French government passed a law ordering insurance companies to accept joint coverage for unmarried couples. • In October 1993, Ireland’s Unfair Dismissal Act was extended to prohibit discriminatory treatment based on sexual orientation.
  • In November 1993, the German Free State of Thuringia parliament passed a new constitution banning discrimination based on sexual orientation, which required popular approval in her late 1994 referendum. A form of discrimination based on homosexual sexual orientation.
  • In June 1994, the Swedish parliament passed a partnership law based on the Danish and Norwegian models.
  • In August 1994, the total ban on homosexual relations in Serbia (including Kosovo) was lifted.
  • Homosexuality was decriminalised in Albania in January 1995. • In January 1995, a bill to repeal the ban on homosexuality was introduced in the Cypriot parliament.
  • On 15 June 1995, the Parliament of the Republic of Moldova lifted the ban on homosexuality.

Conclusion:

Gay. Lesbian. Bisexual. Trans-Gender Individuals! You have no right to marry, no right to adopt, or even a right to protest discrimination in the workplace. I have no right to be recognised as a normal person, no right to live as freely as billions of people. It’s all because of their sexual orientation. This is a terrifying sceptre for a country where more than 10% of its population is LGBT. Should we continue to allow this brutal reality? That is the question.
Indian criminal law has some sections that are anachronistic in a changing world. Section 377 is a classic example. Indeed, in its current form, Section 377 would have criminalised what Clinton did to Monica Lewinsky or what Monica Lewinsky provided to Clinton because some things can only be regulated verbally, not on paper! The possibilities are endless, and let your imagination run wild. Perhaps the solution is to claim that nature and its various orders have changed.