Latest revision as of 12:11, 8 October 2021

[edit] The legal position

[edit] As in 2021

Oct 2, 2021: The Times of India

The Section 377 of the Indian Penal Code is a colonial-era law that criminalises homosexuality and bestiality. It reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” An explanation to this section clarifies that penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The section uses the words ‘against the order of nature’, which means an act or behaviour that is perceived 'normal' and expected to occur 'naturally', if there is no artificial or man made impediment to the same. Unnatural is whatever that is contrary to what is considered natural.

What exactly is ‘unnatural’?

As per Section 377, only the peno-vaginal sexual intercourse is natural, all other forms of carnal intercourse, such as anal or oral, are unnatural. One reason could be that since only the former can lead to the birth of a life, it is logical to construe it as ‘in the order of nature’, but can it be understood to imply that all else is perverse in nature?

In September 2018, a five-judge Constitution Bench of the Supreme Court decriminalised consensual homosexual sexual activity among adults (Navtej Singh Johar v UOI). In doing so the court restored the Delhi high court’s 2009 Naz Foundation judgment, which was overruled by a two-judge bench of the SC in Suresh Kumar Kaushal v Naz Foundation (2013).

There is a misconception amongst the majority of the people that Section 377 has been repealed, but that is nowhere close to the truth. The act has only been watered down and now sexual activity of whatever nature among consenting adults, is not punishable under the law. In doing so, the court has introduced the element of consent as a ground for exemption from criminal prosecution under Section 377.

Non-consensual sexual activity among adults; and all sexual activity, irrespective of consent with minors or with animals, continues to be a punishable crime.

In addition to Section 377, the POCSO Act, 2012 also provides blanket protection to minors against sexual offences. Its dilution is a much-awaited and welcome move, as earlier this provision was utilised as a tool for harassing people with non-heteronormative orientation.

[edit] The judge and the Sushma Vs Commissioner Police case

Oct 1, 2021: The Times of India

The judgement of the Madras High Court in the case of Sushma Vs. Commissioner of Police, Greater Chennai and others, delivered on June 7, which upholds the rights of LGBTQ+ persons, must be welcomed on numerous counts. To begin with, it is a model judgement in terms of how the decision-making authority – in this case the judge, Justice N Anand Venkatesh – decided to first educate himself properly about an issue before delivering a verdict.

Justice Venkatesh’s ruling was on a petition filed by a lesbian couple who had run away from their hometown of Madurai to Chennai because they wanted to live together. Their families, who opposed the relationship, had filed two FIRs with the police, and asked for the women to be forcibly brought back. The couple moved Madras High Court seeking protection against police harassment and the threat to their lives.

The judge not only underwent counselling sessions himself, but also ordered them for the couple and their parents. He wanted to understand the concerns of the community and pass a judgement accordingly. And, in a rare instance of transparency, the judgement reproduces the report given by the counsellor seeing the judge, and does not try to hide it away in the case files.

This honest approach, while delivering justice, is extremely important. It shows acceptance of the fact that a person sitting in authority must always be open to educating himself/herself fully on the matter at hand, and then deliver an informed decision. In this case, the judge not only quashed the proceedings against the two women, but also gave directions for the sensitisation of the police, judicial officers, and even school students about the LGBTQ+ community and its issues.

The judgement in the case of Navtej Singh Johar eventually led to a reading down of Section 377 of the IPC and the decriminalisation of homosexuality in 2018. But it is a long way to go before society accepts same-sex relationships and understands that gender is not binary. The Madras High Court recognises this fact and passes the guidelines, asking the police to close the cases in such matters and directs the government to involve NGOs to bring awareness among the police, jail authorities, the judiciary, school students, parents and teachers’ associations, as well as public and private institutions, among others.

Dangerous, criminal, curable. Here's what some prominent voices say about homosexuality:

If our parents were homosexuals, then we would not have been born. So it's unnatural. I invite the gay community to my yoga ashram and I guarantee to cure them of homosexuality – Baba Ramdev

Homosexuality is dangerous to social morality. If social norms and boundaries are done away with, then there is not much difference between man and animal…- Yogi Adityanath

In Islam and in most of the major religions in the world homosexuality is a sin, it’s a crime. It will not take you to heaven it will take you to hell – Zakir Naik

This is your tendency now… and know that this tendency is not a permanent thing. It may change. I’ve seen many men who were gay, later on turn into heterosexuals, and there are those who are normal— what are called straight people — end up being gay later in life. – Sri Sri Ravi Shankar

In 2010-2011, shortly after the Delhi High Court had read down Section 377 (the ruling was later overturned by the Supreme Court in 2013) – and in a case similar to the Chennai one - two women from Mumbai had run away from their homes because they wanted to be together. The family of one of the women was affluent and influential; her father registered an FIR with the local police alleging that the women had stolen jewellery worth lakhs of rupees from his house before fleeing. The police started a hunt for the two women, not just to bring them back but also because they now had a criminal charge of theft against them. The father managed to find the address of the shelter where the women were staying, and landed there with the police and several male relatives and friends. It was only the intervention of the shelter’s caretakers that prevented an arrest of the two women.

An anticipatory bail application was filed before the Sessions Court in Mumbai. The circumstances were explained to the judge regarding the theft case filed by the father, but the judge insisted that he needed to speak personally to the women. At the same time, he refused to grant them police protection when they came to court. This was required as several male members of the family of the complainant father, used to visit the court for hearings, and there was a clear threat to the lives of the two women.

The lawyers who had filed the anticipatory bail application were also threatened, and this was brought to the notice of the Sessions judge, but he ignored it. Also, since there was a threat to the life of the women, they could not be produced before the court, so the judge rejected their anticipatory bail plea. For many months after this, the women could not leave the shelter out of fear. Eventually, one of them decided to immigrate to a European country, and the other went back to her family. If only the Sessions Court had handled the case with the sensitivity it deserved and granted the women protection, they would probably have been together today. The situation has not changed much post the Navtej Singh Johar judgement. Same-gender couples or LGBTQ+ people are still hounded by their families to change and become ‘normal’. In extreme cases, they are even forced to undergo treatments that will ‘cure’ them, and are relentlessly ill-treated if they refuse.

Recently, a woman who identified as a transgender person, came out to her family during the first lockdown and was kept in confinement for several months.

The Madras High Court order has the potential to rectify any kind of persecution against an LGBTQ+ person as it underscores the need for sensitisation of various authorities that come into direct contact with such an individual: The police, if a case is filed; the judicial set-up, when it is heard; and even authorities, like those of a home, who may take protective custody of the LGBTQ+ person or a same-gender couple. This is particularly important since not every person will be fortunate enough to have a sensitive judge. Also, a lot of time is wasted in approaching the court, getting the case listed, and seeking an order of protection. If a mechanism is developed to deal with such cases through counselling and sensitising the parties involved, the couple or the individual facing persecution will not have to deal with criminal proceedings - which are almost always initiated in such cases. In fact, the judgement tries to even fix this problem at its very origin: In school, where a youngster who appears to be ‘different’ is invariably bullied, beaten up, and in worst cases, driven to take his/her life.

Vijay Hiremath is a human rights lawyer and activist

[edit] Statistics

[edit] 2014

The Times of India, Aug 19 2015

Deeptiman Tiwary

1,148 cases of `unnatural sex' in 2014 

As many as 1,148 cases of “unnatural sex“ involving 1,156 victims were reported from across the country in 2014. The offence of “unnatural sex“ comes under Section 377 of the Indian Penal Code which has been hotly debated over the past few years with regard to the rights of the homosexual community . For the first time, National Crime Records Bureau (NCRB) has tabulated and published data on offences which come under the controversial section. According to the NCRB data for 2014, Delhi recorded the highest number of such offences with 194 cases.The Capital was followed by Haryana with 143 cases. UP recorded 137 cases while Kerala, MP and Haryana all recorded over 100 such offences. Delhi also had the highest rate of such offences at one case per one lakh population. None of the north-east states, except Sikkim, Mizoram and Tripura, recorded any such offence.