By Prashant Chandra, Advocate
An LGBTQ person may claim under his freedom of expression a right to cross dress, which is fine as freedom of expression still allows a person to wear anything subject to decency. Homosexuality became an unnatural offence under Section 377 IPC when Lord Thomas Babington Macaulay drafted Indian Penal Code in 1860. Further, the confusion over the element of voluntariness (consensual sex of homosexual nature) ended with the famous case of D.P. Minawalla v. Emperor, wherein it was held that the consensual sexual intercourse among adults of same sex comes within the purview of Section 377 IPC and is punishable under the same section. This proposition held the ground until decision of Naz Foundation v. Govt. of NCT of Delhi & others, wherein it was held that consensual sex between adults of same sex is not an offence. But this proposition was reversed in Suresh Kumar Kaushal & another v. Naz Foundation & others and the status quo ante on same law was restored. The point of difference between Naz Foundation and Suresh Kaushal at one hand and NALSA on the other is that the former deals primarily with the sexual orientation of a person whereas the latter deals primarily with the issue of gender identity of an individual/community. For the purpose of Section 377 IPC, sexual orientation and gender identity are inseparable issues.
In my understanding, decriminalizing homosexual intercourse will not solve all the purposes; rather, it will open a Pandora’s box of new rights and state responsibilities. Since the Supreme Court has started open court hearings of the Naz Foundation curative petition, a few of my observations—or better to say, my presentiments—on making gay sex legal (a direction in which people generally don’t think) are as follows:
- Trepidation of surge in iniquitous behavior: Decriminalizing homosexual conduct will provide an unrestricted liberty to engage in sexual intercourse—better to say, a doorway to male prostitution. It will motivate people (esp. males) to engage in such activities as it is easy money. Moreover, such a law giving easy pleasure to people may result in the killing of ambitions, and people might not even get aware of it, as before forming any ambition they may find an alternative for easy pleasure.
- Flooding of criminal courts and a new form of offence: The main object of sex will gradually shift from procreation to pleasure. In a country like India where people don’t feel any hitch in trying new things, this kind of liberty may backfire. When people will have options in choosing sexual orientation, then most people will tend to try both, and immature/tender people may fall towards it. Free access to such pleasure—i.e., decriminalizing consensual sex between adults in private—may result in more complaints and convictions under Section 377 IPC.
According to my experience as an advocate and as a law student, there is an un-codified classification of the offence of rape. This may be understood as Rape of 1st Degree and Rape of 2nd Degree. Under 1st Degree rape, there are cases where the victim doesn’t know the accused and has no acquaintance with them (for example, a taxi driver, watchman, unknown stalker, etc.). Such cases falling under this un-codified 1st Degree should automatically attract an instant application of Section 114A of the Indian Evidence Act, 1872, and should be dealt with sternly with the quantum of punishment always on the higher side. Under un-codified 2nd Degree rape, there are cases where the victim knows the accused or has some kind of relation or social acquaintance with them (for example, a friend, neighbour, colleague, etc.). In these cases, the meeting of the victim and accused is dependent on various circumstances, and the question of consent to sexual intercourse is always in issue; once denied by the victim, Section 114A of the Indian Evidence Act, 1872 applies. The chances of misuse of Section 375/376 IPC are always higher under this 2nd Degree rape.
In the same way, decriminalization of sexual intercourse among consenting adults of the same sex will open another category of cases where ‘consent’ to sexual intercourse will always be in question, and further, it will be very hard for a judge to determine who the real victim of non-consensual carnal intercourse is. Once sexual intercourse among consenting adults of the same sex is decriminalized, the chances of misuse of Section 377 IPC will increase. At this juncture, it won’t be a wrong foreboding that decriminalization of sexual intercourse among consenting adults of the same sex may flood our existing courtrooms with complaints and cross-complaints under Section 377 IPC. Places like prisons, night shelters, etc., will remain safe for only those who can physically dominate others. As today there can never be a combined prison for males and females, a similar scenario will apply to men as well. Hence, such a law decriminalizing sexual intercourse among consenting adults of the same sex will definitively increase the workload on the already burdened Indian Judiciary.
- Homosexual people will come up claiming a new set of rights: A gay person will claim under his freedom of expression a right to cross-dress, which is fine as freedom of expression still allows a person to wear anything subject to decency. In public, a cross-dressing male will be treated as a female, but when such a male would have to use public utilities, won’t it make him vulnerable to harassment or embarrassment if he uses the male washroom? Or if such a cross-dresser is allowed to use the female washroom, wouldn’t it make women more vulnerable to harassment? As the Hon’ble Supreme Court has now opened another justiciable and legitimate category of the third gender with provisions for separate public utilities for transgenders, won’t it be unjust to transgenders if a male cross-dresser enters their separate washroom? Are we socially as well as economically ready to recognize a fourth category of gender/gender identity? Is it the right time to address every need of the society or to first accomplish what is still remaining after 68 years of independence and plan for a systematic and harmonious social change? This will place an extra burden on the economy in the form of increased government expenditure.
Laws Which Will Require Amendment:
- Special Marriage Act, 1954: First of all, there are great chances of protests, agitations, writ petitions, or the government may itself amend marriage law (most probably the Special Marriage Act, 1954) to give homosexuals the right to marry—i.e., same-sex marriage.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: This Act may require an amendment under section 2(a), changing “aggrieved woman” with “aggrieved person” and consequent changes in the whole Act, including the name of the Act.
- Protection of Women from Domestic Violence Act, 2005: In Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr, the Hon’ble Supreme Court held: “Most significantly, the Act (Protection of Women from Domestic Violence Act, 2005) gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of ‘domestic relationship’ under Section 2(f) of the Act.” According to this law, even if it won’t apply to a man living with a man in a domestic relation, it will apply equally to women living in a domestic relation (as a wife) with another woman, and it will be utter chaos to determine rights in such cases. Although this law is for the protection of women, a feminine man living in a domestic relationship with another man may come up in future for such an amendment or interpretation to find relief under the Act.
- Section 125 Code of Criminal Procedure, 1973: Public-spirited lawyers may bring writ petitions to include “a man living as a wife with another man in a domestic relation or marriage” within the meaning of the term “wife” u/s 125 Cr.P.C.
Furthermore, various other provisions viz. Section 114A of the Indian Evidence Act, 1872 will require the “consent to sexual intercourse among consenting adults of same sex” to be determined as per the version of the victim, leading to the major chaos of determining who the victim of non-consensual carnal intercourse is.
- It will further degrade the position of women: In a society where there is no law for marital rape, decriminalizing consensual carnal intercourse may further add to the sexual abuse of a woman by her husband. A woman who suffers sexual abuse by her husband can still bring an action against her husband under Section 377 for any sexual intercourse against the order of nature irrespective of consent, but once the element of consent is kept as an exception, the same will be detrimental to women’s rights.
Recently, the Supreme Court of the U.S.A. in Obergefell v. Hodges by a majority of 5:4 held same-sex marriage valid, being contested against the violation of the Fourteenth Amendment to the U.S. Constitution which provides for the Due Process Clause and Equal Protection Clause. However, the dissenting opinion by Chief Justice John Roberts in Obergefell v. Hodges seems to be more prudent and insightful, in which CJ Roberts criticized the tradition of judicial policymaking. He further stated that if a union of two individuals irrespective of their gender is allowed to be termed as marriage, then why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry and live in a polyamorous relationship.
The judgment of the U.S. Supreme Court legalizing same-sex marriage is a blanket protection to all homosexual rights and an end to the debate over LGBT rights, transforming the meaning of marriage from a “legal union of a man and woman” to a “legal union of two persons.” However, in my opinion, such a drastic transformation in the sacred institution of marriage in a country like India should never be done in courtrooms; rather, if it has to ever happen, it should only be done by the representatives of the people of India—i.e., by the Legislature.
Now, after three landmark judgments, the need of the hour is to at least add an exception in Section 377 IPC that “The main section shall not apply to any consensual carnal intercourse in private between adult transgenders,” with a new explanation defining the meaning of transgenders. However, in this debate of “Repeal or Retain 377,” whatever the fate of Section 377 IPC may be, one always possesses a reasonable Right to Privacy, and till the time Section 377 IPC remains unamended, it is rightly said about freedom of choice that, “you are free to choose, but you are not free from the consequences of your choice.” Lastly, an obvious question arises: are we actually ready (socially, legally, and economically) for such a radical change in our society? The answer to which, in my opinion, cannot be in the affirmative.