1'/-
= FROM
"WTHELAWYERSW
coLLEcT/yE
I :
. d +
.·>:%::S:..C...'.".:.:.........>:.>:"j>jj'<y: "'¶¶Zg "+ ·:.'C.::i:...rry.::S::. ".:.:::'.·... jfr,". · .FrY ,c. ·f.·.t.KZ:.:.·Z:.·:<:.:¥:. .... _4 .. . " .:;. i :.· : =%/;?:"m=l,3'l
·-~ .¥ -
Gay Rights
Honlos&ruality has for long been a tabooed subject — neoer spoken oF neUer discussed and
yet practiced. The social outlook toimrds homosexuality rous codyied in the 1/7iu in the
seUerdy punitiUe Section 377 of the Indian Penal Code of 1860. TodaV, the Section stands out
as an anachronism, in shaip miiance with international Iluu, coUenunts to which India is a
signatory and the Indian Constitution itselG Shamona Dianna outlines the changing attitudes
tozoards homosexualihj — both socMl mid legal — and shaVhl focusses on the need for l? change
r in the Icitu on hmnose.ruaiit,i/.
r
u
t Patriarchal society has for cen- cominon law countries. The to exist and therefore were not "
C
IP
q
turies attempted to ajnttxji English buggery statute of 1533 pmscribed. The Sexual Offences ib
! human sexual behaviour thmugh prescribed death for socbmy and Act, 1956 consolidated all the
P
severe social and legal sanctions in sered instances, executions existing law on the subject,
egainst any deviations from the were carried out. The 1861 Of" On the recommendation of the
stereotype tamiIy — male fences Against the Person Act &ipartmental committee on
headed, hete=exual, mono- removed the death penalty for homosexual offences and pros-
dP
This exhortation and the " immoral purposes" were sodomy statutes of their own, - .
d%truction of Sodom and tightened and made to apply to and those that did not, incor-
GomDrrah is seen as the Source male hcjlnosexuals. hbian ac- porated the common law prin- ' ·
of criminalisation of sodomy by tivities wem not ackrlo6vled6ed ciples from the old En6lish laws.
7"7
sufficient to constitute the carnal
Many of these people had
interco urse nectzssa ry to the of- been tricked, tempted or even
fence described in this section." kidnapped and taken to lonely
The exact scope of this vague places and raped. Thus, though
definition — "ca rnal intercourse the scope of the Section covers
against the .order of natue'" — all cases of sodomy, whether
101
)'
has been a major subject of consensua l or non-consensual, an
debate in the existing case law. overview of the cases actually
It has generally been interpreted
pmsecuted reveals that they are
to include acts of anal Sex
mainly rape cases.
i3 r (coitus per ununt) as well as oral What purpose does this law
sex (coitus per (b") between males.
serve exept to create another
The possibility of this definition group of persons vulnerable to
.I being extended to hetencjsexLlal blackmail by the police and sec-
-"~
W~
nistribution of cases decided by jIi2h Courts & the Supreme Court (1830 · 1989) ·t
W
between Consent. A;e and QUantuln of Sentences.
CONSENT AGE PUNISHMENTS
183&1879 1 1 - - 1 - - 1 - - 10 years -
t
P
1880-1929 6 2 1 4 1 4 - 2 - - 5 vears 2
iu
1930-1939 8 5 2 5 ] 6 ] 1 (attempt) 5 years .2 -
4 mths RI + 20 years RI
RI Stripes
1940-1949 2 0 - 2
"b
- 1 ] - dP qp m qp
M
1950-1959 2 i - - 2 - - 2 - m
+ ~
'7
(dead)
K Rf Rl + 20
stripes ·r
T
¶ ,
tions of the public. The assistant prosecution. The extension of the tended to Qover gises of mpe of
mmmissioner of police, crime, Immoral Traffic (Prevention) Act, men by men. Given the actual
New Delhi, Shri Virendm Singh 1986 to men as well as women manner in which Section 377 is
C
q
" stated in an interview that the has cmly wcxsened lhe situation. implemented, its existence is
city crime mcords for 1 990-91 redundant. Its repeal becomes
In Eniperor u/S. Kaku j\·h?shShld
show that not even one case even more urgent, given the un-
[AIR 1944 Sind 33], while con-
was registered in Delhi under
told distress it causes to gay
sidering whether corrubomtion of
Section 377. According " to the victims storv, a bov of eight men.
newspaper reports, the two cas% years, that Kala Mashghul had
of sodomy in Delhi in 1992, sodomised hi m, was necessary, Right to Privacy .
have both been non-consensual, the court applied the rule of
one of an 8 year old boy, and In 1955, the Americtin Law
evidence applicable Kc) rape cases
the other where an adult man after examining the large body Institute Model Pena! Code
was raped by two men. stated that every individual is
F
of statutory and case law ap-
P
entitled to pnMection "against
plicable to rape. This principle
Yet, every evening, state interference in his personal
I has been follo\ved ever since.
0
plainclothes policemen spread out affairs when he is not harming , ,
I
over gay meeting places in all There is thus no reason why others" and eliminated the ,¥.
i
b
.
metropolitan cities to entrap, the law relating to rape of sodomy statutes. In 1957, the
r
humiliate, extort money fmm, women bv men [Sections 375, \Vdfenden Committee (UK)
r
and even force sex on gay men 376 IPC, " Section 114A Indian stated that "it is not the func-
under the threat of criminal Evidence ACt] cannot be ex· tion of cciniinal law to intervene
' Q
!
r
cial interpretation and a fled- state that no person shall be 113), it was held that a Texas I
personal liberty.
law" and a right to privacv, or 6tst 3 months of pregnancy, on r
I
I
·. .·. fy r:
·· ·r:';'h·.-·
". .
- -ux.:.".'t?i¢+i
"·:·:"G'y'««b"·.··
-
· "·"
847; Bl|chall|ul u's. BtUchelor 401 Geo®a statute which Q
%zi:Z,t.. Iy:¶,¶:i". " '""#"" 438) the court held that the charged with committing sodoiny
' m , tetTortse Yana · " :! Grisuu/d principle protected more on a consenting male adult in I
I
.' >:?50~":... ' '· ":·//1 ·//(·.' . . · ·. ....
It) chcxjse for themselves, free the state "to provide that it has j
P
,
0
was asked t(} go tc) a police sta- Free(h)m ol' Expression and
l9!!i
tion where he was q uestioned Equality
for almost 4 1/2 hours about
his sexual life. With a view tD
Article 19, Universal Declara-
tion ()f H uman Rights (UDHR)
institute proceedings for g mss
and Artic|% IS and 19, Interna-
indecency, the polie sent his
tional Covenant on Civil and
file to the director cjf public
Pditical Rights (ICCPR) guaran-
pmsecutions. One yea r later, in
tee the frezdom of thought and
Februarv 1977, Mr. Dudgeon :vas
infornjeZ that charges were not exp ression. n rig ht to freedom
of speech and expression is
being pressed and his pa pers
mcognised in Article 19(1)(a) of "'
returned.
the Indian Constitution. Eb'
Mr. Dudgeon petitioned the ' Article 2 UDHR bars "distinc-
Eurupean Commission of Human
tion of any kind such as race,
Rights alleging violation of Ar-
S:.;: j ticle S of the Eumpean Conven-
tion on Human Rights,
cnlnur, Sex, language, religion,
politiml or other opinion, nation-
al or social origin, property,
corm.spanding to n rticle 12,
birth nr other Status." A similar
Universal Declara tion of H uman
right is recognised in Article 26
... . Rights.
Tht: Eurupean Court cjf
ICCPR, and in Articles 14 and
15 of our Constituticm as inter"
Human Rights held: "the legisla- preted by the Supreme Court.
·f....:.:.:.:<.<'<· "r;~.Z .-" -"-""->:·:-:-:·:
:::::).:.:,,$E;:;i;i(K:Ymk^:gEa';|!!iiiiiitj'eZi::!!!!!
ir ' 'r·'·'·'.:·'·"·"' ' " ----
tion cmnplained ()f interferes
E::!i; ·.'· ..' almmmmmmIL«:!:'z?^Y<.,:.:.: The Siracusa Principles (UN
.'."."JJL
with D's riXht to respect for his
<
·' · ':.?':%~%$ii@iz%'amzFE:i:zi:i::,...:t':'i:i:,:i:,:,:,:zz#kz;ki Document E/CN.4/194/4) recog-
private life guaranteed by Article nise certain limitations which can
X.1 (ECO HR) in so far as it be pul on the rights in the :
a compelling inten2st in regula t-
prohibits honiosexual acts com-
ing such Hhaviour and that the ICCPR, but also state in the ,'
mitted in private between can- "General Interpretative Pri nciples '
statute was the most narrowly
drawn means of achieving that
senting males."' On v,'hether this Relating to the Justification of ir
breach was justified, the majority
end" [760 F 2d 1202]. Limitation":-
opininn was that it was not.
The US Supreme Court
"(9) No limitation on a right
The fact that the authorities recognised by the Covenant shall
reversed the judgment with a
in Northern Ireland had discriminate cnntrary to Article 2
narrow 5:4 ma®n. The dissent- retrained in the past years fmm
ing judges observed "the concept
para 1 of UDHR.
p rosecuti rig h()mosexl|d acts in
of privacy embodies the moral
private between consenting men
kct that a person belongs tij
himself and not others nor to
cwer the ijKe uf 21 years and
capable ()f valid a)rLsent and
77
seiety as a whole."
tFmt no evidence was bmught to
show this had been injurious to
The question also came before
the m()ral standards . in ihe
the European Court of Human
countrv was noted by the court.
qµ
Rikhts in /LZt}"el/ Ditdgeon u/s. .
The court accepted' that in a
Northern hrltind '[European Court
of Human Rights, Series A, democratic society scmie degree
rc
volume 45]. Jeffrey Dudgeon, 35 of regulation of male
h{]mc)sexual amd uct is necessa ry.
vears old and consciouslv
hom(NexLlal frum the age of i4, but that the pment legislation
lived in Belfast, Northern was totally unjustified and its =
¶P
II' mjuimd in the terms of the dismissal from their jobs. When by the US Board of hnmigration lt
Covenant to be "necessary' this Lila Natndeo and Urmila Srivas- Appeals in the matter of Accoshi
l
term implies the Iimitafion, — tava decided to cement their [J.D. 2986; BIA 1985, P. 31]
m'
long standing friendship with while interpreting the phrase
a) is based on one of the bembership in a particular so-
P
b) responds to a pressing Though the a·jthorities freely kinship ties ... It must be one
public or social need, vocalised their fear for "dis- that the uiembers cjf the group
cipline" in the ranks, on paper cannot change, or should not be
C) pursues a legitimate aim,
the reason for dismissal was required to change because it is
and
"absence wi thout leave.°° fundamental to their individual
d) is proportionate to that aim. identities or conscience."
_A. Any assessment of the neces- Social Norms In the light of this interpreta-
,j sity of a limitation shall be Hom()sexua|ity has been
tion, the Texas hnmigration
made on objective considerations. Court [Files: A 23 220644; T U/S.
' treated in various ways by
°'(12) The burden of justifyinj" us INS; 3 February 1986] found
society. A sin against god, a
that the applicant in being a
a limitation upon a right heresv which can onlv be ab-
guaranteed by the Covenant lies snived by fire, a sexual deviance homosexual was a member of
' with the state." Such a group of persons.
which must be given deterrent
Attention must also be dmwn punishment, a mental aberraticm
to the tact that even in times of that must & treated. Conclusion
public emergency, the ICCPR However, evidence is piling Since homosexuality is art im-
prescribes in Article 4.1 that a up that hom[)sexua|ity is neither mutable part of a person's
derogation of the obligation is a disease nor' a crime, but is in- being, the state has no right to
not allowed if involving "dis- herent t() human nature. The treat his or her sexual behavkur
crimination solely on the ground Kinsey 'reports ()j"j male and as criminal, and under Article 2
of race, co!our, sex, language, female sexual behaviour (1948 UDHR, and Article 26 ICCPR,
religion or social origin." It is and 1953) concluded that such a person has a right
clear that the right against dis- homusexual behaviour was against discrimination on the
crimination is not to be violated neither unnatu ral, abnormal nor Sround of sexual preference. It
MK "* even in the most desperate neurotic, but that it represented is of no use to a person to
" times. allow him a homosexual inclina-
an '°inherent physiologic
' In the UK, inspite of the 1967 capacity", and is found °'in tion, without the right to freely
m '" amendment to the criminal law, every age group, in rverv scjciai express this sexuality in his con-
serious onslaughts on the rights level, in every ccmceiva"ble oc- duct, without fear that such ex-
of gay men and lesbians con- cupation, in cities and on farms, pression will lead tcj retributive
tinue. In 1986, the British and in the most remote areas." attacks on his person, his fami-
U government enacted Clause 2.8 ly, or his job.
To quote just one instance, a
banning the "pnomotian of report from the Indiana Institute The burden of proof is on
W : homosexuality (as a) pretended
for Sex Research (Bell, \·Veinbe[g the indian state to show why
family relationship." and Hammersmith, 1991) based Section 377 IPC is retained in
|t ' Clause 25 of the Criminal Jl1s· spite of the fact that it 'is sel-
(jn exhaustive questioning of
. tice Bill, still under debate, in- dom used and then largely in
persons of cc)ntrasting sexual
cludes provisions for higher orientation found that '° there is cases of non-consensual sex with
.
;
sentences for soliciting, procuring no reason to think it would be minors, and is used by the
and indecency by gay men. The anv easier fnr h()mc)sexual men police and some sections of the
and women tU reverse their public to termrise and blackmail.
Children's Bill, 1991 seeks to
ban lesbians and gay men from sexual orientation than it would
0 The Indian state must show
fosteri ng children. Clea rly, merelv be for hetemsexual (persons) to
why social and legal controls on
become padoininantly or ex-
heterosexual behaviour cannot be
. 3,·" to the
of decriminalise
problem. is not the end clusively humosexual.'°
extended to homosexuals, and
In India, the verv existence of rk)m[)sexL1a1ity is as much a for the rest they are given the
homosexuality is ° denied, and part of a person as is his respect and acceptance due to
those who are 'found out' face cdour, sex, race, religion, etc. them. w