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Published : May 09, 2010 | Author : sauravrmlnlu
Category : Gay laws and Third Gender | Total Views : 5028 | Unrated

saurav singh 2nd year Student of Dr. Ram Manohar Lohiya National Law University, Lucknow

Homosexuality: Question On Basic Facet Of Human Right, Legislation, Individuality & Integrity

Homosexuality refers to a sexual contract between two person of same sex as man and man or female and female. The word homosexual is etymologically Greek and Latin. The word ‘homo’ derives “same”. The burning issue in the current legal and non legal field now a day is the constitutional validity of section 377[1], which prohibits unnatural sex even in private. The matter is significant particularly after the celebrated judgment of the Delhi High Court in Naz Foundation v. Government of NCT and Ors[2]., where the court stricken down the section to the extent it prohibits the homosexuality in private. However even if the decision of the court has come, but has not yet settled the debate all over country as the relief which is given to the so called community of homosexual is traced from the fundamental right of liberty, equality and right to privacy. But as the issue involved here is not just legal but inclusive of lot of other points as ethical, social and religious aspects as well. Therefore keeping the note of the point that the judgment of the hon’ble High Court is thoroughly criticized, the issue cannot be settled until unless a determination which will satisfy all the sections of societies with a reasoning having a balance between social and legal requirement will come.

If we look into the provision making the wrong as a crime, it was enacted in 1860 and it cannot be neglected that the social believes at that time had an impact over the penal law covering most of the wrongs. Indian Penal Code was largely influenced by English law as well as it was drafted by Lord Macaulay. One more point which is significant here is that the same law which was there in England was taken for India as well and in England which was later amended and the Homosexuality with some limitation was made legal on account of personal liberty and privacy. Moreover if we trace the origin of the law prohibiting the homosexuality, it is from the Christianity which says that any kind of sexual activity which will not lead to procreation is unnatural which should be punished with death penalty.

The provision in India making the homosexuality a crime even if it is done with the full consent is truly influenced by the Christianity. Now the debate in India is that whether the homosexuality to the extent of voluntarily doing in the private should be allowed or not. The major Argument which is given to eliminate the penal provision is that the right to personal liberty which is given under the constitution includes the right to have privacy as well as right to enjoy the life in the manor as anyone wants, subjected to the restriction that other should not be harmed with this. Now the major proposition in this regards is that the same right is also provided to the homosexuals and they also can enjoy their life the way they wants, therefore keeping in mind the right to life under Article 21, the section 377 of the Indian Penal Code is violating the fundamental right.

The Second point which activists of Gay and Lesbian Rights raise is that the section 377 is making a classification between Gays and other people which is not on a reasonable basis, therefore they says that Article 14 is violated. Now the third point which particularly in the case of Naz Foundation was raised was that the section 377 is making a classification only on the basis of sex which is not a valid classification and violation of the Article 15 of the Constitution.

Now it appears prima facie from these provisions that section 377 is violation of the constitution of India, but keeping in mind that law has a function to run the society without any chaos, and for this purpose law can impose reasonable restrictions upon the fundamental or any right given to its citizens, as Article 21 provides for the right to life and liberty but at the same time it also says that the right can be taken away by procedure established by law and section 377 is just such a procedure which is established by law. Now again there is one more point to be considered that such procedure under Article 21[3] has to be just fair and reasonable. Again after the much appreciated judgment of Maneka Gandhi[4], it has been settled that if a restriction is imposed upon the fundamental right, then the test of just fair and reasonableness will be applicable even in case of a substantive provision imposing restriction. Therefore the section 377 is nothing but a substantive provision which is imposing restrictions upon the fundamental rights which are said to be violated.

Now the job which is there in front of courts is to judge whether the procedure through which this restriction upon the right is imposed is just fair and reasonable or not. Now for this purpose we have to take note of the fact that a restriction upon a right is valid if the exercise of that right is encroaching upon the enjoyment of the others. As in the case of section 377, if the homosexual relations are being entered into in a private room so this way they are not harming anyone therefore the restrictions by 377 are not valid. But the issue we have to judge in light of the social status of our country as well as it is proposed in many legal works that the law can impose a restriction upon any right on the basis of immorality. In India so far the homosexuality is considered to be immoral. And this judgment regarding immorality is made with the assumption with few religious backing that the purpose of Sex is just that of Procreation and not the enjoyment. And the Act of Homosexuality is leading towards enjoyment not the procreation as there is no such possibility involved. Any such sexual activity which does not lead to the procreation is considered to be unnatural. This unnaturality is prohibited in India. There are lot of cases which are decided by the Apex court with this regards.

The point of conflict which comes into picture is that whether law can impose a restriction upon the fundamental right on the ground of immoral exercise. And secondly that if such an act is done inside a closed room, then whether law should enter there and impose the restriction of immorality.

The act which was an offence in the England earlier, was removed from the domain of criminal law on the basis of the findings of the Wolfenden Committiee[5], which said that the state power can be validly exercised only with certain limits which J S Mills has rightly propounded in his theories, where it was said that those act which are not bothering even a single person cannot be held to be immoral and law cannot affect the exercise of that act. Now going by this proposition, the section 377 seems to be violation of the constitution.

But contrary to this, one more view which is very much famous and accepted is that the every society has a basis structure and that basic structure is based upon some morality which everyone needs to follow. Whether in following this basis structure, some of the rights of the members are curtailed that should not be taken as harm to the rights and if this order is not followed, then the society cannot run properly. Further this is also believed that the enforcement of the morals which are necessary for the society can be done through the weapon of the criminal law and same is done in case of section 377[6]of IPC,1860 . Therefore if this theory of basic morals of a society is accepted, and homosexuality is considered as immoral in any part of the word, then criminal law can come into picture and curtail that particular evil.

The theory seems to be very practical in case of the India as there are lot of evils which are not harming the society as a whole but still they are considered to be bad and law has also made those things as criminal wrong such as dowry, incest, prostitution etc.

If we consider the case of prostitution, then the act is done in private but merely by being done it in the private as well the prostitution is harming the social value and law comes into picture for any such wrong otherwise if we consider it from a different perspective then we can take it as a valid contract of service. But on the ground of immorality it is banned, therefore the theory that the basic principles which are prevailing in the society can be enforced in the society through criminal law. The problem comes into picture when it is said that Indian society has evolved so much that it can tolerate even homosexuality, now this is a question of fact which cannot be settled upon the paper and some other measures has to be taken for this purpose.

In the regard of the opinion of the public in India, it was determined through the 5th law commission that the society in India tends to deviate from homosexuality and that is a valid proposition to settle that the homosexuality is immoral in India and the intervention of the criminal law is justified. It was said in the law commission report that on the basis of the fact that the Indian society tends to deviate from homosexuality the only safe option is to continue with the criminal provision. But again the law commission in subsequent years proposed that the punishment of the offence should be reduced, but that was not adopted by the legislature.

Here we need to note that the society keep changing itself with time and the practices which were considered to be bad before some time are socially accepted today, as Plato also has said that certain values which man follows keeps changing as per the human reasons, therefore as the determination that the Indian society is disapproving the homosexuality was made log before so a fresh findings will have to be done for this purpose.

Two more theory which has a role to play in the dispute here are that of Natural law theory and legal positivism. Both theories tends to be against each other, as per the legal positivism, there are always few positive things which keep happening and with an experiment, if society thinks it to proper to adopt that practice, it can always do so without a sanction from morals to an extent. Therefore this theory is rejecting the intervention of the law in case a practice is not moral but accepted. The theory quashes the need of the practice to satisfy a basic test of law for acceptance and curtails the functions of the law in this regards. Therefore following this, the individual if he is involved in homosexual activity in a private room, then the intervention of law is not justified.

The natural law theory says that the legal validity of any act is connected directly with the morality of the act as any discovery of a human conduct should be confirmed by manmade law. Therefore the natural practices have to have a baking of the law with it in order to be valid in a society.

Therefore with above stated theories, it is well clear that the law imposing restrictions upon the liberty and individuality from the perspective of homosexuality will be valid in any country if the society shows a tolerance skills to the evil on account of the human rights involved, otherwise all categories of rights have their own importance and the restrictions so imposed will be held as unconstitutional.

Emphasizing upon the importance of the rights in question, the Apex court in various matters has determined that right to privacy is a fundamental right. In the matter of Kharak Singh v. State of U.P[7]., supreme court accepted that though the right to maintain privacy is not express but it is one of the essential ingredients of Article 21, hence a fundamental right. In some cases, to maintain this right conferred by Article 21, the right to speech and expression is also restricted. In the similar sequence the right to privacy will be maintained only if the person will not come into light for such a wrong which is already considered to be violation of freedom of liberty. Therefore this way the right to have a homosexual relation seems to be better protected under right to liberty.

In the recent matter of Naz Foundation, court referred to the well known nexus between Article 14, 19 and 21 and stated the principle evolved in Maneka Gandhi that a procedure under Article 21 is no procedure in case it does not follow the test of article 14, as it is already contended by the activists that the provision in IPC under section 377 does not fulfil the said test so it is violation of the principle of liberty.

So on the issue of right to privacy, it is propounded that the right to privacy guarantees some space to the individual where no one from state authorities can have a say, therefore through the section 377, state is entering into that space and violating that freedom. However this point is already rebutted on the basis of the entering on account of immorality.

Further apart from these constitutional mandates, one more aspect is there in the issue, i.e. violation of Human Rights. As it is already settled through various surveys etc. of Ministry of Health Affairs that a considerable population of the HIV/AIDS carriers is that of gays and lesbians and this problem is not being taken care of because of the penal provision under section 377.

As per the Affidavit of the Ministry, the penal provision for homosexuality is having a derogatory impact upon the controlling of AIDS. Therefore in addition to the alleged violation of fundamental right, this provision is causing the violation of the human rights as well.

As the same time, there appeared a contradiction between two ministries of the government itself through the affidavit submitted to the court. As the ministry of Home Affairs stated that the Indian society has still not evolved so much so that it can tolerate the wrong of homosexuality. Contrary to this the Ministry of Health said that the section 377 is leading to the violation of Human Rights and causing more harm than serving a fruitful purpose.

Therefore the entire allegation as violation of Human Rights, Integrity, individuality, privacy is there upon section 377. It is held In the matter of Naz Foundation that the section 377 is not constitutional. While stating this, court has said that the object of the law should be to eliminate any wrong which is done with respect to the state as a whole or to a body consisting of some person at least but if an act which is done in privacy and not harming anyone else, and if then it is penalized then this exercise is encroaching upon the privacy and individuality of that person as to have a homosexual relation is basic need of the concerned, then law in private cannot prohibit that.

However the reasoning given in the matter does not seems to be stable as it does not answer the various questions legitimately rising such as the morality issue. Merely by saying that if homosexual relations are established in private, then they are not a criminal act, court is also encouraging a petition seeking the wrong of incest to be held to be a valid exercise. This way many activities which our society has not being witness of will have to observe and that will definitely harm the order of the society.

Therefore what the requirement if today with regard to the issue is that the ascertainment of the fact that whether people in India are capable enough to tolerate the homosexuality or not need to be done. After that the question will be automatically solved because the barrier of morality will not come to picture then.

As it is well established that certain rights of the gays and lesbians are encroached upon by the section 377 and as also the science also says that the homosexuality is not a disease, then the to eliminate the provision from the law the exercise must be to ascertain that the sex does not mean only for procreation but also for the enjoyment and this point particularly in India needs to be proved with reference to some religious literature so that people will quickly accept the findings. The other point rests to be ascertained is that the society as a whole will not be in trouble after repeal of the provision as the various aspects of child abuse etc. are covered under the section. The need will be to reframe the law so that only intended liberalism should take place and undue advantage will not go to anyone as in Private sector workers may have a Title VII action under a quid pro quo sexual harassment theory[8] ,a "hostile work environment" theory[9], a sexual stereotyping theory[10],

But still lot of efforts are to be done as to reply to the question from the side of the morality will not be easy.

[1] Section 377 of Indian penal code, 1860: Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
[2] 160(2009)DLT277
[3] Article 21 of constitution of India: Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
[4] AIR1978 SC8S3
[5] http://en.wikipedia.org/wiki/Wolfenden_report
[6] Unnatural offences: 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 term which may extend to ten years, and shall also be liable to fine
[7] 1964) 1 SCR 332
[8] Kelly v. City of Oakland, 198 F.3d 779, 81 Fair Empl. Prac. Cas. (BNA) 1455, 77 Empl. Prac. Dec. (CCH) P 46281 (9th Cir. 1999)
[9] Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998, 1002 (1998)
[10] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Authors contact info - articles The  author can be reached at: sauravrmlnlu@legalserviceindia.com

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