What a confused world we live in. That could be a general statement but today it is confusion over sexuality – in particular homosexuality.On 27 November in the UK we had the Supreme Court judgment in the case of Bull v Hall[1]. This was the case of the Christian hotel owners who refused a double-bedded room to a same sex couple. This case has been portrayed as one of gay rights against the couple’s right to manifest their religion – and in this case, gay rights won. In fact the arguments were a little more nuanced than that (as you might expect from a Supreme Court ruling) and if interested, Alasdair Henderson, barrister at One Crown Office Row chambers has written an interesting commentary on this case in the UK Human Rights blog[2].
Then yesterday, it was reported in the UK that gay marriages can take place from 29 March 2014 – earlier than expected following the commencement of the Marriage (Same Sex Couples) Act 2013 in July of this year. This Act legalising gay marriage (as opposed to civil partnerships) had been strongly supported by David Cameron, leader of the same Conservative Party that had previously introduced the notorious Section 28 of the Local Government Act 1988, prohibiting local authorities from intentionally promoting homosexuality. How times change. (One might also note this Act has been opposed by the Roman Catholic Church in England and Wales, the Muslim Council of Great Britain and the Network of Sikh Organisations. So much for tolerance and goodwill to all men and women).
So far, so good for gay rights and human rights in general. Then today, in a truly backward step, news from India that their Supreme Court had overturned a 2009 Delhi High Court ruling and recriminalized homosexual sex.
India inherited its penal code from their former colonisers, the British. Section 377 of the Indian Penal Code 1860 states:
'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'.
This doesn’t explicitly include homosexual sex and immediately begs the question what exactly is ‘carnal intercourse against the order of nature’. In 1884 the meaning of this was restricted to anal sex, by 1935 had broadened to include oral sex and later judgments have interpreted it further to include ‘thigh sex’[3]. The Court in the 1935 case of Khanu v Emperor seemed to limit legitimate intercourse to only those acts that could lead to conception – ie.vaginal penetrative sex between a man and a woman. So, lesbian sex, oral sex (between any couples – including presumably married heterosexual couples) and anal sex (again between any combination of consenting couples) would be illegal. Commentators have argued that, although few prosecutions against gay people have actually taken place under section 377, the social effects of discrimination against any form of sexuality outside married heterosexual sex, together with moral disapproval, has permeated Indian society and legitimized prejudice and discrimination against minorities.
The 2009 Delhi High Court judgment in the case of Naz Foundation v Union of India (2009) was therefore a landmark judgment and victory for LGBT campaigners in India – de-criminalising consensual sex of whatever nature between adults in private. In particular the Court ruled that Section 377 was against Article 15 of the Indian Constitution, which prohibits any discrimination on grounds of sex, religion, caste or place of birth. The concluding paragraphs of that judgment are worth quoting[4]:
129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, "Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future." [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants' or 'different' are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
CHIEF JUSTICE
S.MURALIDHAR, J
JULY 2, 2009
Today’s Supreme Court judgment, in reversing this decision, has had very mixed reaction in India. Mohammad Abdul Rahim Quraishi, spokesman of the All India Muslim Personal Law Board is quoted as saying, ‘We are very happy with the judgment. There is no space for homosexuality in our social setup. It is a sin, it is a heinous crime’. K. Radhakrishnan of Trust God Ministries, said ‘Homosexuality is a Western phenomenon. It has polluted the minds of young Indians. The court has recognized this. We are very grateful’[5]. Just pausing for a moment here: so K.Radhakrishnan is very grateful for a judgment upholding a section of the penal code introduced by the British Victorian colonial powers, because homosexuality is a Western phenomenon which has polluted the minds of young Indians. Oh dear.
For Subramanian Swamy, however, of the Bharatiya Janata Party, homosexuality is a ‘malfunction of the human body and should be treated medically’. He goes on to say, ‘I welcome Supreme Court judgment holding homosexuality as illegal. It is no accident that men and women are born in equal proportion. Moreover survival of the human race requires one man one woman cohabitation. The government and corporates must fund research to find a cure for homosexuality at the earliest. It is a malady that should not be celebrated but cured with compassion’[6].
For all the LGBT activists, however, and many other supporters, this has been a retrograde step, and even shocking in the 21st century when LGBT rights are being recognized and codified elsewhere. The well-known novelist Vikram Seth, a long campaigner for LGBT rights said, ‘Today is a great day for prejudice and inhumanity. And a bad day for law and love. But law develops and love is resilient. And prejudice and inhumanity will be beaten back. And Law and love will prevail. The judgement is a disgrace[7]’.
Colin Gonsalves, Indian Supreme Court advocate and Founder Director of Human Rights Law Network said, ‘This is a day of mourning for all Indians. The 2009 High Court ruling was one of the finest judgments for minority rights and for inclusion. This is a wrong and retrograde approach to fundamental rights. That the legislature should take it up and not the court is an obsolete notion. The Supreme Court has said 500 times in different judgments that it is the duty of the court to intervene when there is a violation of fundamental rights’[8]. And let's not forget this is potentially criminalising oral sex between married heterosexual couples - punishable by up to life imprisonment.
I could not find the actual judgment of today’s Indian Supreme Court but once it is made available, it will be interesting to read the legal reasoning behind this retrograde judgment. I find myself frustrated at the persistent discrimination against homosexuality in India (of course not universally held), especially in a country that prides itself on being the world’s largest democracy and seemingly with ambitions to become more of a global economic power in the world.
Homosexuality is not a ‘Western’ phenomenon that has been exported around the world. It is a human phenomenon that is present in all societies, whether legitimized or not. When the rest of the world is finally recognizing the human rights of all, regardless of sexuality, it is sad to see India take two steps backwards, away from non-discrimination, equality and inclusiveness.
Tweeter Meena Kandasamy summed it up: ‘In India, pre-marital sex = marriage (see my blog about this case here), homosexuality = illegal, marital rape = sex’ (rape within marriage is still not criminalized in India).
We hope for change.
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