Does it befit a substantial democracy to consider homosexuality between the consenting adults as a criminal offence? What do you think, is it not a criminal offence infringing every right of an individual like right to liberty, equality, privacy and right to life?
The provision of Section 377 of the Indian Penal Code (IPC) criminalizes consensual sexual acts between the people even in private. The object of Section 377 is to outlaw the private acts of the consenting adults. But it causes no harm to the society and is in no way, in conformity with the religious or moral visions of the society. The discrimination, done by the said provision, rigorously affects the interests and rights of the homosexuals and badly ruins their dignity. The law pushes the homosexuals to spend their entire life, facing the harassment, cruelty, humiliation and undignified treatment of the law.
The Supreme Court in Suresh Kumar Koushal & Anr v. Naz Foundation & Ors upheld the constitutional validity of Section 377 by making a statement that “there are two different classes where one class consists of people who gets involved in carnal intercourse in the ordinary course and other class gets involved in carnal intercourse against the order of nature. People under the second class cannot protest that section 377 constitutes irrational classification and also leads to arbitrariness. It just defines the specific offence and imposes punishment for the same, which is to be given if the person prosecuted is guilty. Hence, the High Court was wrong in upholding section 377 as in violation of Article 14 and 15 of the Constitution”.
I fail to understand the significance behind this differentiation held between the people who ordinarily have carnal intercourse and the people who do it against the nature but are doing the same thing. The law might include heterosexuals, which would surely be in ‘rarest of rare’ cases only. Heterosexual relationships and sexual violence in marriages are generally taken as a part of life. I do not feel the need of analyzing it so deeply as the psychology and philosophy are being enough in moving forward with the justification part.
In Suresh Kumar case, the Supreme Court had stated that, “While reading Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and in last more than 150 years less than 200 persons have been prosecuted for committing offence under Section 377 and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”
This does not make any sense to me, as whether there are two hundred people or just two, at the end they are individuals who should be protected under our Constitution, but are prosecuted. Therefore, this law should be struck down on this basis as it is clearly indicating the need of it. It becomes very difficult for these people to live freely, without any interruption of the law, which comes in between their way of happiness. The important thing is that the law is not the only issue in this matter; it is lack of imagination in regard to the judgment, which is the main issue as imagination indicates the braveness and is the hallmark of compassion. This lack of imagination in my view requires to be wholeheartedly mourned by the Judges.
The legislature has proclaimed the carnal intercourse as an offence but did not considered the question as to whether it was morally right or not. In my view, the State does not have the constitutional proficiency to takeover the privacy of anybody or control his or her personal acts, on the basis of public morality. The criminalization of private consensual sexual relations with no evidence of any serious harm makes the objective of the provision both arbitrary and unreasonable. People tend to seek freedom around them, so that they can do their most intimate consensual activities in private without any interference. A society, which provides the individuals with this liberty, is more just than the society, which accepts the law to dominate over the personal dignity. Restricting someone’s privacy is insulting the human dignity. The issue is not about the gay rights, whereas, it is about all the individuals existing in the society. The concern is also about the fact that no individual, no matter how small the minority, should be discriminated on the basis of identity. The Supreme Court in Suresh Kumar case, has in literal sense, overstepped on the dignity of the honest citizens who just want the right to privacy and space to be themselves. If they are refused to have that space that would not uphold or teach them the true order of nature or some moral value. That would only result in harming the human dignity and their freedom.
Public health interventions on HIV prevention are also disrupted by it as it becomes difficult to find the homosexuals as they hide in fear of being prosecuted and tend to stay far away from the health services, which further results in violation of their right to health under Article 21 of the Constitution.
Section 377 does not discriminate on the basis of gender. It has an impact on a particular class comprising of homosexuals as it prevents homosexual orientation, which is a natural and unchanging characteristic of a homosexual person. This criminalization of identity on the basis of state’s disapproval violates the principle of equality under Article 14 and 15 of the Constitution.
Therefore, this provision of section 377 should be struck down, thereby giving the individuals, right to privacy, as this privacy enables an individual to built human relations without any interruption of the outside community or state.
Written by : Shradha Jain
Institute: Jindal Global Law School