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Published : June 03, 2016 | Author : mkmanjunath
Category : Gay laws and Third Gender | Total Views : 1871 | Rating :

I am Adv.Manjunath Kakkalameli, completed MBA LLB ,along with having managerial experience in Healthcare management. Ph no: Ph no: 9420659628

Rationale of LGBT (Lesbian, Gay, Bisexual and Transgender)

Homosexuality is mostly a taboo subject in Indian civil society and for the government. Section 377 of the Indian Penal Code 1860 makes sex with persons of the same gender punishable by law. On 2 July 2009, in Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court (WP(C) No.7455/2001) held that provision to be unconstitutional with respect to sex between consenting adults, but the Supreme Court of India overturned that ruling on 11 December 2013, stating that the Court was instead deferring to Indian legislators to provide the sought-after clarity.[1]

Homophobia is prevalent in India.[2][3] Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years, however, attitudes towards homosexuality have shifted slightly. In particular, there have been more depictions and discussions of homosexuality in the Indian news media[3][4] and in Bollywood.[5] Several organizations, including the Naz Foundation (India) Trust,[6] the National AIDS Control Organization,[6] Law Commission of India,[7] Union Health Ministry,[8] National Human Rights Commission of India[9] and the Planning Commission of India[10] have expressed support for decriminalizing homosexuality in India, and pushed for tolerance and social equality for lesbian, gay, bisexual, and transgendered people. India is among countries with a social element of a third gender. But mental, physical, emotional and economic violence against LGBT community in India prevails.[11] Lacking support from family, society or police many gay rape victims stay don't report the crimes.[12]

Religion has played a role in shaping Indian customs and traditions. While homosexuality has not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, Hinduism has taken various positions, ranging from positive to neutral or antagonistic. Rig-Veda, one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti (Sanskrit: विकृतिः एवम्‌ प्रकृतिः। meaning what seems un-natural is also natural),[13] which some scholars believe recognizes homosexual/transsexual dimensions of human life, like all forms of universal diversities.[14] Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were not necessarily considered inferior in any way until about 18th century.[15]

History of the legislation in west: Homosexuality a crime

At the core of the controversy involved here is the penal provision Section 377 Indian Penal Code 186016, which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290 17, and later in the Britton, 1300. Both texts prescribed that sodomite should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533, which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalization of sodomy in the British Colonies.

Oral genital sexual acts were later removed from the definition of buggery in 1817 and in 1861; the death penalty for buggery was formally abolished in England and Wales. However, sodomy or buggery remained as a crime “not to be mentioned by Christians."

Indian Penal Code (IPC) 1860 was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 IPC is contained in Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”. Within this Chapter Section 377 IPC is categorized under the sub-chapter titled “Unnatural Offences “and reads as follows:

“377. 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 a term which may extend to ten years, and shall also be liable to fine”.18

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

Judicial Interpretation
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 Indian Penal Code (IPC) 1860. The expression “carnal intercourse” is used in Section 377 of IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995)19, the term “carnal” means “of the body or flesh; (2) worldly” and “sensual, sexual”. Consent is no defense to an offence under Section 377 IPC and no distinction regarding age is made in the section.

At the heart of the issue is Section 377 of the Indian Penal Code (IPC). Enacted by the British in 1860, it provides for punishment for up to 10 years or life and fine for "voluntarily having carnal intercourse against the order of nature with any man, woman or animal" .The explanation renders that penetration is sufficient to constitute the offence. The British enacted this law as they wanted to finish off the culture of plurality of sexuality, which was widely prevalent in Indian society.

Then what does it mean? Over the past 150 years, Section 377 has been interpreted to punish penile non-vaginal sex. Remember it applies to all sexualities, including heterosexuals. So if a heterosexual couple has oral sex, they are both liable for imprisonment. Of course, the police do not target heterosexuals.

Case Laws
R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382,
That inserting the penis in the mouth would not amount to an offence under Section 377 Indian Penal Code (IPC). Later, Section 377 of IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices.

In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252,
The issue was whether oral sex amounted to an offence under Section 377 IPC 1860. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.”

Draconian Law
It is just Draconian law i.e. Draconian is an adjective meaning of great severity, that derives from Draco, an Athenian law scribe under whom small offences had heavy punishments.

But in the case of gay and transgender community, it's a different matter. They have been sexually assaulted, harassed, blackmailed and extorted by the police, neighbours and even family members. They were being hounded as criminals. Criminalization of their lives perpetuated prejudice, which, in turn diminished their sense of self-worth and resulted in alienation from, and discrimination in, all sectors of society, including employment. Most of them led a closeted life and were subject of ridicule in all spheres of life, including the media.

The Delhi High Court stepped in to end this injustice. It declared in the NAZ Judgment that adult consensual sex in private would not be covered by Section 377 IPC. Most importantly, the court conferred the rights of citizens to them. The NAZ case, in other words, infused fundamental rights into the lives of the LGBT community. It changed their lives forever, profoundly, positively. Persons in the LGBT community started to come out and lead normal lives. Rightly, the Delhi High Court judgment was hailed as one of the most significant judgments around the world.

The Supreme Court verdict has reversed all that. From being treated as ordinary citizens, it has foisted criminality on all of us yet again. Of course, at the receiving end will be the LGBT community. The Supreme Court has actually told the LGBT community that they are not entitled to fundamental rights — they are second-class citizens; they cannot exercise freedom expressing the core of their personality. Has the Supreme Court shown reason and logic to overturn the judgment of the Delhi High Court? The short answer, sadly, is no.

Strange Rationale
Controversial to Constitution of India:-
The main challenge to the law from Article 21 of Constitution Of India 20(which guarantees right to life and personal liberty) protecting intimate sexual relations between consenting adults in private from intrusion from state legislation has not been considered by the Supreme Court at all. Right to privacy is implicit.

In the right to life and liberty and guaranteed to the citizens, in order to be meaningful, the pursuit of happiness encompassed within the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere require that privacy – dignity claim concerning private, consensual, sexual relations are also afforded protection within the ambit of the said fundamental right to life and liberty given under Article 21.

The court has also overlooked the challenge from Articles 14 and 15 of the Constitution which guarantees equality and prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

In such a challenge, the defendant state is obliged to sustain the validity, to show firstly that the division of the population into classes is based on rational or intelligible grounds and secondly these grounds should have a rational relationship to the object the law seeks to achieve. The Supreme Court says there is a clear difference between carnal intercourse within the order of nature and against the order of nature. That is only the first limb of the argument on Article 14 and 1520. The second part of the argument has not been dealt with at all.

Thoughts on Morality:-
According Justice A.P Shah, Delhi High Court “If an issue of morality of is to be decided by majority, then Fundamental Rights has no Meaning21.For example “Untouchability was approved by majority but the Constitution of India prohibited the Untouchability as a part of Social Engineering. Sati was also approved by majority, but now it is prohibited. But it would be completely inconsistent in today’s world.

Ancient Evidences of Homosexuality in India

The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated. Though homosexuality was considered a part of sexual practices, it was not always well accepted. There were punishments prescribed for homosexual behavior. For instance, the verse referring to sexual relations between an older woman and a virgin (woman) reads"...a woman who pollutes a damsel (virgin) shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey", 22suggesting a severe punishment. However, the verse referring to sexual relations between two virgins suggests a relatively milder punishment – "...a damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod".23These provisions, quoted out of context, seem against lesbianism, but in fact they are concerned not with the gender of the partners but with the loss of virginity that rendered a young woman unworthy of marriage.

In Rigvedha, an Ancient Scripture of Hinduism says that Vikruti Ivm Prakruti, it means Vikruti is Also Part Prakruti, there is no Vikruti without Prakruti. Many Ancient Scripture defines existence of Homosexuality in India, Like in Stories of Padma Purana, Mahabharatha.

Modern views of India:-
The two-judge bench, composed of Hon. Justices G S Singhvi and S J Mukhopadhaya, opined that homosexuality should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilization have become normal. They had also pointed out that many things, which were considered immoral 20 years ago, have become acceptable to society now. The bench said that gay sex was not an offence prior to 1860 and referred to paintings and sculptures of Khajurahoo.

Senior Advocate Amrendra Sharan,24 who opposed the Delhi High Court order of decriminalizing gay sex on behalf of the Delhi Commission for Protection of Child Rights, had then submitted that social issues cannot be decided on the basis of sculptures. The apex court bench, however, observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse. Earlier, the Supreme Court bench had asked the anti-gay rights groups, challenging legalization of gay sex to explain how such acts are against the order of nature as submitted by them.

Miss interpretation of section 377:

Though Section 377 is ostensibly neutral, it has targeted gay or transgender persons only. The Supreme Court says that the section does not mandate action against gay men but is only directed at acts. The court, however, does not appreciate that sexual acts covered under Section 377 are intimately linked to the sexuality and sexual expression of gay men. Shockingly,

Question on Minority:-
The Supreme Court says the LGBT Community that they are not entitled to fundamental rights because they are a minuscule minority. How can one countenance such thinking, more so from the apex court of the country? Take for instance a place like Mumbai where there are so many minority groups, including different groups of Brahmins, Parsis, Khojas and different sects of Bohras. Can we tell them they are not entitled to fundamental rights because they are a minority?

Misuse of law is not a reason for striking down the law. Say, the court is bent on sticking to this rationale; it should have considered that the misuse is inherent in the application of 377.

The other reason is the presumption of constitutional validity of the statute. The court seems to have overlooked that the high court had held that section 377 is invalid and the government had not filed an appeal. Therefore the presumption does not hold at all. The judgment has sent us back to the medieval ages. The judgment has, in one stroke, criminalized the lives of millions of citizens of our country. It is a blot on the annals of the Supreme Court. The court must rectify its decision with no delay.

A Question to Supreme Court:-
On Dec 11,2013 ,the Supreme Court Two Member Bench (Justice G.S. Shingavi & S.J Mukhopadyaya) overturned the decision of Delhi HC by saying that “ The High Court is Constitutionally unsustainable as parliament can change a law, not court”.25

But the question is that “Though the Delhi High Court constitutionally Unsustainable to amend a law,” Does the Supreme Court of India giving the verdict constitutionally?

The Answer is NO, because it has given the judgment on basis of Scope of High Court & not on the fundamental Rights of Indian Citizen, which he has by birth from Constitution of India which carries strong merit with LGBT Community.

A Plea from union Government makes the question on creditability of Decision of Supreme Court. Though Supreme Court verdicts against the LGBT Community. It’s become question on Constitution of India & its provisions on Fundamental Rights.

Let’s hope that the LGBT will have green days ahead in future through the Curative Plea i: e remedial Peal with no doubt & no delay.

In the case of LGBT, as it is a taboo subject in India & still into whirl of Natural –Unnatural. The Apex Court has just emphasized on morality of an ancient Indian culture & illogical Section 377 of IPC. It has been overlooked the constitutional provision on Fundamental rights which includes rights to LGBT also. To justify the LGBT community law has to be widened & should accept the CHANGE. As many countries accepting with the honor.

1. 1) Shyamantha, Asokan (11 December 2013). "India's Supreme Court turns the clock back with gay sex ban". Reuters. Retrieved 11 December 2013.
2. Bedi, Rahul (5 July 2011). "Homophobia persists in India despite court reforms". The Telegraph (UK) (London). Retrieved 3 April 2014.
a b "Fear and loathing in gay India". BBC News. 17 May 2005. Retrieved 3 April 2014.
3. "Why should homosexuality be a crime?". The Times of India. 18 April 2003. Retrieved 3 April 2014.
4. Gopinath, Gayatri (2000). "Queering Bollywood: Alternative sexualities in popular Indian cinema". Journal of homosexuality 39: 283–297. doi:10.1300/J082v39n03_13. PMID 11133137. Retrieved 3 April 2014.
5. "Anachronistic law". The Hindu (Chennai, India). 1 October 2008. Retrieved 3 April 2014.
6. "UN 2004 - NGO statement: LGBT rights in India". Geneva: International Lesbian, Gay, Bisexual, Trans and Intersex Association. 27 April 2004. Retrieved 3 April 2014.
7. Kounteya Sinha (1 October 2008). "Ramadoss to take up gay rights issue with PM". The Times of India. Archived from the original on 9 October 2008. Retrieved 20 January 2011.
8. "Gay rights should be respected, prostitution legalised: NHRC chief". The Times of India. 6 October 2008. Retrieved 12 February 2009. [dead link]
9. Syeda Hameed (13 December 2005). "The silence around sex work". India Together. Retrieved 3 April 2014.
10. "Violence against LGBT groups still prevails in India". DNA India. 24 November 2013. Retrieved 4 April 2014.
11. Priya M Menon (16 February 2013). "Lacking support, male rape victims stay silent". The Times of India. Retrieved 4 April 2014. "I did not know how the police would treat a gay man."
12. Stephen Hunt; Andrew K. T. Yip (1 December 2012). The Ashgate Research Companion to Contemporary Religion and Sexuality. Ashgate Publishing, Ltd. p. 368. ISBN 978-1-4094-7225-4. Retrieved 4 January 2014.
13. Ashok Row Kavi. "Expose the Hindu Taliban!". Rediff.com. Retrieved 4 Jan 2014.
14) Ruth Vanita; Saleem Kidwai (18 October 2008). "Indian Traditions Of Love". Tehelka. Retrieved 4 April 2014.
15) Raghavan, Vikram. "Navigating the Noteworthy and Nebulous in Naz Foundation". Retrieved 2009-11-27.
16) Indian Penal Code 1860/bareact/indiakanoon/online
17) http://www.milligazette.com/news/6202-section-377-judgement-background-i
18) en.m.wikipedia.org
19) Concise Oxford Dictionary (ninth edition, 1995)
20) The constitution Of India/art/14/15/17/19/21
21) http://archive.indianexpress.com/news/if-an-issue-of-morality-is-to-be-decided-by-majority-then-fundamental-right-has-no-meaning/1210431/
22) Manu Smriti Chapter 8, Verse 370. Text online
23) Manu Smriti Chapter 8, Verse 369. Text online
24) Naz foundation vs. NCT delhi WP(C) No.7455/2001
25) http//judis.nic.in/supremencourt/imags1.aspx?filename

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