The news made headlines around the world on July 3, 2009, as the Delhi High Court in India stated that consensual sex between two adults is a legal act, overturning a 148-year-old colonial-era law that criminalized homosexuality. The judges, much to the surprise of the country, said that this law violated sections of the Constitution and had to be repealed. But the journey doesn’t end here. A petition challenging the judgment has been filed in the Supreme Court of India, which on Monday, July 20, 2009, declined to stay the High Court verdict, saying it would wait for the government to come out with a definite stand on the issue.

Last week, GOOD spoke to Arvind Narrain, a human rights activist and a lawyer with the Alternative Law Forum, Bangalore, of which he is a founder member. He is also the author of Queer: Despised Sexuality, Law and Social Change (2004) and co-editor of Because I have a Voice: Queer Politics in India (2005). He offered his take on the implications of the ruling, the nation’s changing cultural landscape, and whether there’s yet a place in India for the religious gay man.

GOOD: As I understand, the High Court judgment applies to all of India. For those not familiar with the Indian legal system, can you explain how this works?

ARVIND NARRAIN: Both the High Court and the Supreme Court can decide the constitutionality of legislation. So there is no ambiguity and no doubt about the fact that the Delhi High Court decision applies across the length and breadth of the country. To think of it very logically, India, unlike the United States, doesn’t have a system of state constitutions, there’s only one constitution.

G: There have been very few prosecutions under this law; the discrimination against the LGBT community has been mostly social. Do you think that will change because of this ruling?

AN: One way to look at it is once the criminal law is off your back, you’re fighting with your hands untied. So then it becomes a debate like all other things, all other persecuted and marginalized segments of society. It just gives you a little more space to fight that particular battle.

Marriage is an institution, very important and central to the oppression of a certain section of the LGBT community, particularly if you take the phenomenon of lesbian suicides wherein they’re forced to get married, separately, to men and so decide they’d rather kill themselves. There, the law has very little to do with it. It’s not the law, but the social institution called family, the social institution called marriage. And changing that is a Herculean task, it’s something which takes a different level of work in imagination altogether.

G: How does the ruling affect gay Indians in their daily lives?

AN: First, the imaginative possibilities it has opened up. Some people have been quoted in the media as saying they wanted to celebrate, so they got married. The judgment doesn’t affect the law on marriage, but it opened up a realm of possibility, which people seem to take forward.

In fact, people have been open about their sexuality for the first time in families and in workspaces. So it’s really liberated people in a way in which law is very seldom a part of. It’s not often that you get such a sense of relief from a change in the law. That’s the larger level. But the more technical point is what it does is ensure that your intimate relationships are not criminalized within the sphere of your own life. Tomorrow, if a gay man is dismissed from employment or denied housing, he can take it forward in court.

G: Is there a place in India for the religious gay man?

AN: I think it is important to acknowledge that there were sections of the Muslim clergy, as well as Hindu and Christian groups, which clearly said that they might have problems with homosexuality, but didn’t believe it should be criminalized. They said they have many opinions—don’t eat beef, for instance—but it doesn’t become the law of the land. Similarly, many didn’t see why their opinion on homosexuality should become the law of the land.

Then, there are sections of the religious opinion that are also supportive of the human rights of gay, lesbian, bisexual, and transgender people and that section exists in all religions as well. I think the public perception is to some extent affected by a lot of media attention on just four or five people who express strong opinions against homosexuality. The majority is happily going about its own business. So it’s a mixed picture. It’s not fair to say that religion uniformly opposes homosexuality. We refuse to be pitted against the religious leaders; we’re religious as well and it is part of who we are. And our religion doesn’t condemn it.

G: Personally, what does this judgment mean for you?

AN: I have been working on these issues since 1997 in the National Law School, and it’s 2009. It’s quite a significant step, which kind of soothes you—the way things have changed in this country in the last 12 years. It shows you that there’s a younger generation, which is very open to different ways of livingand thinking. It tells you that the country you lived in, in 1997, is not the country you live in, in 2009

Tough to fault HC 377 ruling: Law Ministry

Maneesh Chhibber Posted online: Wednesday, Jul 22, 2009 at 0855 hrs

New Delhi : The Union Law Secretary has told the government that it’s difficult to find any lacunae in the judgment of the Delhi High Court which struck down provisions in Section 377 of the IPC that criminalised homosexuality.

This comes when the Centre has sought time from the Supreme Court to formulate its stand on the issue. On Tuesday, it told the court it did not want a stay on the July 2 verdict of the Delhi High Court that legalised gay sex among consenting adults.

In his report to Union Law Minister M Veerappa Moily, Law Secretary T K Vishwanathan is also learnt to have said that there are no sufficient grounds on the basis of which an appeal could be maintainable in the Supreme Court. He has also suggested an innovative way out of the impasse.

The Law Secretary had been asked to submit a report at a meeting of the Union Ministers of Law, Home and Health on July 3. Moily is expected to share the Secretary’s report with the Home and Health Ministers later this month.

Vishwanathan is learnt to have recommended that a March 2000 report of the Law Commission on review of the IPC and CrPC on rape could be one answer to the government’s problem.

In this report, the Commission had recommended repealing Section 377 and making rape “gender-neutral.”

At present, only a man can be charged under the offence of rape of a woman. A male member of the society can’t levy rape allegations against anybody. This offence is dealt with the section dealing with sodomy.

In its report, submitted by then Chairman of the Commission, Justice B P Jeevan Reddy (retd), to then Union Law Minister Ram Jethmalani, the Commission recommended that instead of rape, those accused under Section 375 of the IPC

should be accused of sexual assault. This would include forcible oral sex.

The panel also recommended that the minimum punishment under Section 375 be five years.

It also recommended addition of a new Section 376E in the IPC to deal with ‘Unlawful sexual contact’, which would include touching with “sexual intent any other person.

On the question of Section 377, this is what the Commission wrote: “In the light of the change effected by us in Section 375, we are of the opinion that Section 377 deserves to be deleted. After the changes effected by us in the preceding provisions (Sections 375 to 376E), the only content left in Section 377 is having voluntary carnal intercourse with any animal. We may leave such persons to their just deserts.”

Despite initially making loud noises about doing a rethink on Section 377, senior functionaries of the Union Ministers backtracked after religious leaders opposed any move to do away with laws that ban homosexuality.

JURIST Guest Columnist Anand Grover, UN Special Rapporteur on health and founder of the Lawyers Collective human rights advocacy group describes his group's decade-long fight to end discrimination based on sexual orientation in India, culminating in his recent Delhi High Court victory against India's colonial-era anti-sodomy law....

The legal philosopher and reformer Jeremy Bentham produced The Theory of Legislation in the first half of the 19th century. It propounded the great principle of utility, a veritable working manual for lawmakers all over the world: “The PUBLIC GOOD ought to be the object of the Legislator, GENERAL UTILITY ought to be the foundation of his reasonings. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good”.

The lesson was simple yet profound. He propounded that nature has placed man under the realm of pleasure and pain. To these man owes his ideas, judgments and determination of his life. Evil is pain or the cause of pain. Good is pleasure or productive of pleasure. Criminal law prescribes a series of punishments for different acts and omissions. Every punishment produces pain at least to him on whom it is inflicted. Punishment, therefore, is an evil. Its only justification is that it prevents a greater evil or produces in some other or others or the general public much more pleasure. From these two principles he had no difficulty in formulating the principles on which a rational penal code should be constructed.

The Delhi high court recently produced a memorable judgment declaring Section 377 of the Indian penal code constitutionally invalid. Lord Macaulay and his fellow commissioners who framed that code had presumably not taken Bentham’s teachings seriously, at least when they introduced their notion of Victorian morality into this section.

Voluntarily having intercourse against the order of nature with any man, woman or animal is declared a serious crime for which the punishment may well extend to 10 years and fine or both. As judicially interpreted and noticed by the Delhi high court, sexual activities hit are the following:

1. Intercourse by a man with a woman other than vaginal; such as involving the anus, mouth or any other orifice in the human body;

2. Intercourse with any male involving the anus or any other orifice;

3. Act commonly known as practice of bestiality.

Section 377 by its marginal note classifies all three as ‘unnatural offences. Macaulay did not know that the fish, iguana lizards, roosters, dogs, cats, horses, rabbits, lions and many other species mount others of the same sex. Homosexual behaviour is so rampant in non-human species that it is difficult to justify the epithet unnatural for this behaviour.

Neither Bentham nor any other rational person would see in these actions any element of producing the evil of pain. Of course my assumption is that intercourse is by free consent and does not involve minors who are incapable of consenting to remain untouched by the section.

The Delhi high court judgment is full of learning and references to literature on psychiatry, genetics, religion and judgments delivered in other jurisdictions, particularly the US and Canada. It refers to the report of the British Wolfenden Committee and the Sexual Offences Act, 1967, by which English law de-criminalised homosexuality. It fortifies its conclusions by the 172nd report of the Law Commission which also took the same view: ‘Section 377 in its present form has to go’.

The Delhi high court judgment is substantially based upon the citizen’s right to privacy and a life of dignity. The court correctly concluded that these rights can only be subordinated to some overriding public interest. Counsel for the Union of India could not point out any and the court rightly rejected his feeble argument that the law in some remote way promotes public health. The submission was in the teeth of the view of the American Psychiatric Association presented to the United States Supreme Court in 2002 in the case of Lawrence v. Texas :

“According to current scientific and professional understanding, however, the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. Moreover, these patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality”.

Now the view for which the additional solicitor general canvassed was the view of the home ministry with which the health ministry did not agree. To the best of my knowledge it has never happened that two government departments made conflicting and irreconcilable submissions in a public hearing before a high court. I hope that the government puts its house in order before the Supreme Court.

What further surprises me, is that the most effective 8th respondent, namely the National Aid Control Organisation (NACO) did not use Bentham’s powerful argument which any court should normally consider almost conclusive.

The Delhi Judgment does not recommend homosexuality or even approve of it. But it is obnoxious arrogance to claim that my conduct is natural while others violate nature. The constitution of India does not tolerate such tyranny.

No legislator or ruler can tell those who obey his laws “I am one of the elect, and God takes care to enlighten the elect as to what is good and what is evil. He reveals himself to me and speaks by my mouth. All you who are in doubt, come and receive the Oracle of God;” thus wrote Bentham.

A short reference to the history of homosexuality is called for. During the Greco Roman period, there is ample evidence to show that homosexual behavior between men as well as between women was common — and within clear conventional limits — approved. Judeo-Christian literature, however, reflects a general aversion to homosexual behaviour which was seen as an emblem of decadent paganism — godless, debauched, and heretical. For both Jews and early Christians, the Old Testament story of the destruction of Sodom became the foundation text of homophobia, even though neither Jews nor early Christians, including Christ himself, unanimously interpreted it as a text condemning homosexual behavior.

During the next thousand years between the fall of Rome and the beginning of the Renaissance, the Roman Catholic Church condemned any nonprocreative act between persons of either sex. Pope Gregory IX called sodomites ‘abominable persons — despised by the world and dreaded by the council of heaven’. In the late 13th century the first case of a homosexual being burnt at the stake came to be staged. Protestantism was equally rigorous in its condemnation.

In the 19th century, homophobia turned into hysteria. Lord Macaulay imported it into India. Homophobia is thus a western product which was unknown to sexually free India. The Delhi high court can take credit through its judgment that India is going back to its enlightened roots. Oscar Wilde and his lover Alfred Douglas had already shocked Victorian England, initiating the end of homophobia.

Our earth is a crowded planet and can not sustain more humans. Semitic religions condemn pederasty because it does not add to the population. Malthusian wisdom, which I endorse fully, is a credit item in the balance sheet of homosexuality.

The writer is a senior lawyer and former Union law minister