Sexual Orientation cannot be a grounds for Discrimination
As we advent further into progressive stages of civilization, certain legal and political ideals and principles like those based on religious propaganda or community and traditions have been overthrown and replaced by newer, more individualistic principles like that of Liberty and the right to self-determination. It is due to this growing atomistic ideal that more dynamism is being introduced into the Law especially by giving Human Rights the ultimate power to trump other laws. Nevertheless, many disputes have arisen due to the clash between the old morality of the Judeo-Christian Laws and the new morality of the Age of reason and logic and thus, rights of minorities have been sought to be protected from the democratic majority of the nation states. One such highly debated topic that has gained much recognition since the __________________Revolution has been the legality of Gay rights, particularly the repudiation of the repercussions of The Buggery Act, 1837 which stated that any carnal intercourse that is unnatural must be criminalized. The problem is with that of what is considered to be unnatural. Due to Judeo-Christian propaganda, all sexual acts must have the ultimate objective of procreation, failing which, it would be deemed to be unnatural. These very principles were sought to be implemented in colonial India as well which led to the Indian Penal Code, 1860(sec 377). What most Indians are up in arms about is the fact that this sort of an outdated legislation that criminalises penile non vaginal sex, which implies that homosexuals, especially MSM (Men having Sex with Men) are criminals for indulging in such an activity even if it is within the confines of their four walls and is a purely consensual relationship. It is this issue that was sought to be contended in the Delhi High Court Naz Foudnation v. Government of NCT of Delhi and others which was appealed in the Supreme Court in Suresh Kumar Koushal and Anr v. Naz Foundation and Others.
While the Delhi High Court was commended for the sensible stand it took in the protection of sexual minorities, many religious institutions made a big racket of it and claimed that it affects the morality of the public and hurts its sentiments. The dissatisfactory point that had been made was with regards to the interpretation of the word ‘sex’ as sexual orientation, in Art 15 of The Constitution of India which protects against discrimination on the grounds of religion, race, caste, sex or place of birth. The High Court’s interpretation was one based on leading Human Rights’ judgments that said sexual orientation was based on is based on stereotypes of conduct on the basis of sex. The Court itself referred to the Human Rights Committee’s decision in Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994) in which the Tasmanian Criminal Code which criminalised sexual acts between men, was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation. [1] Hence, sexual orientation was taken as analogous to sex and since Sec 377 seeks to discriminate on this basis, it is unconstitutional and should be struck down. It is what formed a major portion of their arguments and which is why the inclusiveness of the Constitution is a principle that we will seek to discuss. Another pressure point is the classification of natural (read procreative) and unnatural sexual acts and whether such a justification can be held valid or not.
Article 15 is an application to the general right to equality under Article 14. To treat equals equally and unequals, unequally is the principle that has been enshrined in our constitution. Hence, to create a classification, one has to ensure that it is based on an intelligible differentia which distinguishes those that are grouped together from others (i.e., those indulging in unnatural sexual offences) and that differentia must have a rational relation to the object (punishment of unnatural sexual offences) sought to be achieved by the Act.
Section 377 is vague and seeks to introduce a classification which is not based on rational criteria and the object it seeks to advance is not a legitimate state object. Section 377 violates Article 15 by discriminating on the ground of sexual orientation as although facially neutral it treats homosexual men unequally compared to heterosexuals and imposes an unequal burden on them.
This differentia makes no sense in today’s world as it states that any sort of penile, non-vaginal sex is an offence as well. ‘Sex’ here refers to the ejaculation of the sperm into an orifice which would imply that any sort of oral or anal sex, despite being between consenting adults and within the exercise of their right to privacy, is illegal and criminal. Thus, those lakhs of people who practice such activities are nothing but criminals. This would imply that due to a morphed sense of ‘public morality’, a large percentage of the population live as criminals. Yet, when the matter went for discussion, only homosexuals, in particular MSMs were targeted. There is no rational nexus between the basis of classification and the offence in question because the activities are not playing any part in causing hindrance to the interest of the State.[2]
Besides, sexual orientation of a human being is something that is determined naturally. It depends on certain biological factors like secretion of hormones and the size of certain parts like the medulla oblongata or the corpus callosum.[3] Indeed, the environment also plays a huge role in the determination of the sexual orientation of a person, yet even in an extreme case, one cannot deem homosexuality to be unnatural because what is natural and unnatural should rather be determined by the extent of one’s consent to indulging in such behaviour.
Shri Huzefa Ahmadi tried to object to the inclusion of sexual orientation as part of ‘sex’ under art 15 by stating that the constituent assembly makers in the Constituent Assembly debates did not ever even deliberate this and hence, this right can be restricted. To which Fali S Nariman brilliant gave various justifications and interpretations to 377 in the High Court and stated that 377 should be interpreted in the context of its placement in the IPC as criminalizing an act in some way adversely affecting the human body and not an act which is an offence against morals as dealt with in Chapter XIV.
Section 377 targets the LGBT community by criminalizing a closely held personal characteristic such as sexual orientation. By covering within its ambit, consensual sexual acts by persons within the privacy of their homes, it is repugnant to the right to equality.
‘When there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.’ Section 377 in its interpretation and operation targets LGBT persons and deprives them of their full moral citizenship.
Yet, the Supreme Court stated that the classification that has been made is not arbitrary or can be accused of an irrational classification as all it seeks to do is act as a preventive measure by defining the offence and prescribing a punishment for it which will only be invoked when an FIR has been filed in the police station and can be accorded only once a trial has been conducted in accordance with law. Thus, as has been stated under art 32, Fundamental Rights can be curtailed only when done under due process of law and the procedure established by law. Hence, the High Court’s judgment declaring Sec 377 of the IPC as ultra vires of Art 14 and 15 was not right. They also support this argument by citing various case laws like K.A. Abbas v. The Union of India (UOI) and Anr [4] A.K. Roy and Ors. v. Union of India and Ors.[5] That justify the importance of defining crimes and the necessity of sometimes using vague expression like ‘harmony between different religious groups' or 'likely to cause disharmony or hatred or ill-will', or 'annoyance to the public’ to create a wide ambit for criminals to be prosecuted against and for the greater interest of the society.
The invalidity (of the law) arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.[6]
Though the Supreme Court managed to find a just explanation for the existence of the law and its continuance, the point to be noted here is that despite the doctrine of Separation of Powers, it is the ultimate duty of the Judiciary to interpret the law and the constitution. Though the Legislature must amend the laws, when it comes to matters of Human Rights and its protection, a popular opinion of the citizens is not necessary in order to uphold basic human rights. When a large section of the society is forced to live as criminals, then it is the duty of the judiciary to interpret the laws in favour of the human rights and not favouring public morality. The law is meant to be above the prevailing social circumstances. The law is meant to guide the society into a progressive and developed civilization. History too, teaches us how many laws that were held to be largely acceptable by the society (polygamy, sati) but due to a better understanding of liberty and equality by a few individuals in power, it was outlawed. Today, it is a part of our daily life and the contrary would be held to be unthinkable. If the Judiciary, which is made up of intelligent and widely read scholars, does not take a stand to bring in an epochal change, the judeo-christian morality that was imposed upon us during the colonial times, which has become so deeply ingrained in our consciousness, will never fade. We can never try to progress to a better and more liberal society due to our reluctance to change.
Using the spread of HIV as an excuse to criminalise homosexuality hald no ground in the courts. It was blatantly obvious that to legalise it would lead to a better control over its spread. The only reason the issue was brought up again in court was due to orthodox religious organisations that could not digest the fact that a person could be emotionally and sexually involved with one from the same sex. Using the mere act of penile non-vaginal sex seems to be an excuse. By being inclusive, the judiciary would have made a huge leap in the protection of homosexuals under Art 15. Yet now, they have to continue to live in fear of public prosecution and mental depression.
The international community has largely accepted homosexuality as well as same-sex marriages. The most progressive countries in the world, like the Netherlands, Finland, Sweden and Belgium have accepted the above. They also have been known for the lowest crime rates and corruption.
[2] Distinction based on a prohibited ground cannot be allowed regardless of how laudable the object is. If a law operates to discriminate against some persons only on the basis of a prohibited ground, it must be struck down.
