Courting trouble with gender benders

In reinstating the controversial section 377, we have reverted to archaic notions and ignored fluid gender identities

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Naveen HN | December 14, 2015




Enacted in the year 1860, Section 377 of the Indian Penal Code (IPC) criminalises homosexual sex even between consenting adults and the punishment may extend to life imprisonment. The Naz Foundation in 2001 challenged the validity of the section and brought several questions to the forefront. It approached the Delhi high court with a plea stating that the section be declared constitutionally invalid insofar as it affects sexual acts among consenting adults or to read down the section to exclude consensual same-sex sexual acts between adults.

Two aspects that draw our attention here are questions of gender identity and the role of judiciary in addressing such issues. The law in general recognises and governs heterosexual relations to the exclusion of homosexual relations. Questioning of Section 377 has also questioned the gender identity. The rights of the LGBT community have been subjected to the existence of Section 377. But the question is: can gender identity, a fluid concept by itself, be subject to the narrowness of law? Does Section 377 deal with questions of sexuality or gender identity, or both?

The Delhi high court in July 2009 had ruled that Section 377 IPC that criminalises homosexuality is actually unconstitutional as it violates articles 21, 14 and 15 of the constitution. Setting aside the high court’s view, the supreme court in December 2013 held, “What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if, in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires (‘beyond powers’) Articles 14 and 15 of the constitution.

“While reading down Section 377, the high court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21,” the apex court said further.

While the high court judgment is right, a study of the latest judgment shows that there is no sound reasoning provided by the court. The conclusions arrived at are in the light of developments in LGBT movement across the globe and international conventions which further the interests of the same. On the other hand, the supreme court seems to be not addressing the pleading placed before it. Discussion is focused on the constitutional validity of pre-constitutional laws and the power of courts to strike down laws that are violating constitutional principles.

Vagueness persist
A reading of the statute shows that it is ill-defined and unclear in its phraseology. Archaic terms used in the present make us doubt their present-day validity. The phrase ‘unnatural offence’ is made use of with respect to an archaic word, ‘unnatural’, where its present-day relevance and validity are in question. How far does this medieval understanding of the phrase stand valid today? The phrase ‘whoever voluntarily’ provides for no categorisation of offenders based either on age or sex. Nor is the question of consent and adulthood given due consideration. Generalised phraseologies of this kind provide for limitless applicability of law which can have disastrous implications. The phrase ‘has carnal intercourse against the order of nature’ gives scope for a wide set of interpretations. Confusion is created by trying to

Timeline of court proceedings

2001: The Naz Foundation files a PIL in the Delhi HC challenging the validity of Section 377 of IPC

July 2, 2009: HC declares Section 377 as unconstitutional

July 9, 2009: HC verdict is challenged in the apex court

December 11, 2013: The supreme court sets aside the high court’s view leaving the question before them unaddressed. After refusing to review its decision, SC has now admitted a curative petition which is pending before it.

establish sexual intercourse and carnal intercourse as two entirely different entities. Sexuality is not limited to heterosexual relations with procreation as the only function. Categorising sexual acts as mere physical acts would mean eliminating the humane aspect of relationships amongst human beings. Having understood carnal intercourse along these lines, it would be ill-advised to define carnal intercourse amongst adults as perverse and not in accordance with nature.

Interpretation of the phrase ‘against the order of nature’ is one of the key tasks in reading down Section 377. Sexual orientations and sexual acts involving same-sex are viewed with certain social stigma. What is presumed to be ‘nature/natural’ in the eyes of the law is a culturally imposed norm within the limited sphere of heterosexuality where procreation is the only function.

Penal laws need to be well-defined as they have the notion of regulating public behaviour attached to them. Here, the vagueness apparent in the statute generates the question of whether there really is a well defined law. Now, are consensual same-sex sexual acts between adults against the order of nature? What does the history and the science have to say about this?

The book ‘Same-Sex Love in India, a Literary History’ by Ruth Vanita and Saleema Kidwai throws light on the historical aspects of the same-sex relationships. Their analysis shows that although non-heterosexual sex is categorised as subordinate to penetrative heterosexual sex, there is an overall tolerance and an absence of violent persecution. Speaking about the Kamasutra, regarded as one of the finest works on the subject, they say that sex between men and between women are described in some detail, and are often mentioned in passing.

Even medical science and psychology show that homosexuality is not a mental disorder. In 1973, the American Psychiatric Association’s Board of Trustees removed homosexuality from its official diagnostic manual. The experts deduced that homosexuality does not meet the criteria to be considered a mental illness.

Although the statute is vague, a reasoned construction of what is available provides for some clarity. An approach of this nature provides that carnal intercourse in private amongst consenting individuals, either amongst members of the opposite sex or of the same sex is not against the order of nature. History, medical science and psychology provide sufficient evidence to advance such an argument.

Fluid domain of gender identity
The court can no doubt take up the issue on grounds of constitutionality, exercising its wide powers. Doing so would place the lives of the LGBT community in sync with an archaic law which is being misused. It is clear from the facts before us that all along, a misuse of a vaguely framed statute has led to fear and abuse of people who identify themselves as members of the LGBT community. The need here is not to identify a particular gender, but to ensure that law does not discriminate one on the basis of gender or sexuality. The interpretative approach provides for a clarification ensuring that there is no abuse of law by enforcement agencies, making sure that a disguised form of the stamping out of a particular gender is not done under statutory law. This path ensures that we need not argue a case of constitutional validity and also not enter into the fluid domain of gender identity.

Law has to operate in an inclusive manner where one is not discriminated on the grounds of sexuality or gender. India is yet to take into consideration such an approach, enabling homosexuality to be under the protective cover of law. Rather than subjecting the lives of homosexuals to the validity/invalidity or relevance of an archaic law, voices need to be raised to have laws that govern them on par with others. Socio-cultural sensitivity of law needs to be accommodative to all, rather than giving preference to the majority over the minority.

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