Homosexuality in the light of the Right to Privacy Judgement

By Shikha Mukesh Meena, National Law University, Jodhpur.

“The lamp of history destroys the darkness of ignorance”

-The Mahabharata

The term ‘homosexuality’ was coined in the late 19th century by a German psychologist, Karoly Maria Benkert. Homosexuality refers to sexual behaviors and desires between males or between females.

Homosexuality is a social stigma which is still prevalent in many countries including India. Indian society which is considered to be traditional and conventional in many ways is also not impervious to this difference. India has had a conservative background which has been very difficult to break through, and whenever something unconventional is practiced the same is shunned. Homosexuality for one would be considered unconventional. Though the question remains is it unconventional? Or is it the people’s ignorance?

The importance of the questions raised above is very important to determine as homosexuality has been a recurring issue in Indian society which has gone from being criminalized to decriminalized to recriminalized again and the fight for which continues till date. This issue is being raised today in the light of the recent Right to Privacy Judgement which has given hope to this fraction of the Indian society who had lived in shadows and terror for a long time, that it may be time to come out and not be afraid or ashamed of their personal choices.

The (Unnaturally) Natural Homosexuality

Variations in gender and sexuality have been discussed in sacred Hindu Text for over two millennia; same sex love flourished in pre-colonial India, without any extended history of persecution. Ancient Hindu ascetic traditions see all desire, including sexual desire as problematic because it causes beings to be trapped in a cycle of death and birth in the phenomenal world. This has been countered in Hindu devotional practice and also philosophy and literature by an emphasis on the Gods as erotic beings, and Kama (desire) as one of the four normative aims of life. In another indicator of the liberal Hindu heritage, Kama Sutra, a classic written in the first millennium by Sage Vatsyayana, devotes a whole chapter to homosexual sex saying “it is to be engaged in and enjoyed for its own sake as one of the arts”.

It was when British colonized India, they inscribed modern homophobia into education, law and policy. Homophobic trends that were marginal in premodern India thus became dominant in modern India. It is evident not only in the anti-sodomy law introduced by the British in the Indian Penal Code of 1860, but also in the deliberate heterosexualization of entire literary canons and genres. Most Indian nationalists internalized this homophobia and came to view homosexuality as an unspeakable crime, as opposed to heterosexual monogamous marriage. Prior to this, homosexuality had never been considered unspeakable in Indian texts or religions.

The point here is that homosexual nature has been a part of the natural law of God. There has been a history of homoeroticism, of a long historical tradition which did not view same-sex love as inferior. It is not an unconventional practice but a forgotten one which from then on has been labelled as something unnatural.

A Fruitful End or an Unending Struggle?

Section 377 of the Indian Penal Code (IPC), dating back to 1861, makes sexual activities “against the order of nature” punishable by law and carries a life sentence. There has been a continuous struggle to decriminalize homosexuality and strike down this cruel and discriminatory rule.

In 2002, Naz Foundation had filed a PIL in Delhi HC seeking legalization of gay sex which was dismissed in September 2004 by the HC, which was then placed for a review petition by gay rights activists which also ended up getting dismissed, against this order of the HC, the activists approached the SC. On April 3, 2006, the SC had directed the HC to reconsider the matter on merit.

On July 2, 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck off S. 377 of the IPC as being unconstitutional as far as Consensual Sex was concerned. The view of the High Court was that a statutory provision targeting homosexuals as a class violates Article 14, and amounted to a hostile discrimination on the grounds of sexual orientation. The Court held that to the extent S. 377 criminalized consensual non-vaginal sexual acts between adults, it violated an individual’s fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India.

However, just over four years later in 2013, in the case Suresh Kumar Koushal v. Naz Foundation, the Supreme Court reversed this finding. Here, a bench of two judges, through a judgment delivered by Justice G.S. Singhvi, resolutely refused to see the LGBT community as equals in our citizenry. Instead, the Court restored Section 377 in its archaic ingloriousness, granting validity, in the process, to the State’s ability to criminalize acts based on perceived moral grounds, notwithstanding the effect that such laws might have on the fundamental right of a person to be treated with equal concern, and of the right that such persons have to be allowed to freely make ethical choices on how they seek to live their lives.

On 18 December, 2015, Shashi Tharoor, a member of the Indian National Congress, introduced a Private Member’s Bill for the Decriminalization of Section 377 of the Indian Penal Code in the Lok Sabha, but the motion was rejected by the House by a vote of 71-24 with one abstention.

On 2 February, 2016, the Supreme Court agreed to reconsider its 2013 Judgment; it said it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.

The SC in its recent Privacy Judgement 2017, Justice K S Puttaswamy (Retd.), and Anr. v Union of India, provided a big boost to the LGBT community by declaring that the 2014 order by a two-judge bench had gravely erred in annulling a Delhi HC verdict decriminalizing gay sex between consenting adults. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. The right to privacy and the protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. The Supreme Court held that popular acceptance cannot be the basis to disregard rights whereas in its previous judgment the Court had taken a majoritarian view.

The judgement on Right to Privacy could make a huge difference towards decriminalizing the draconian Section 377 of the Indian Penal Code, offering a new ray of hope to the LGBTQ community. There is still a curative petition pending before the SC after its 2013 Judgement and Justice D.Y. Chandrachud has indicated that the privacy decision could impact SC’s previous decision on homosexuality.  However, it remains to be seen how the Constitution bench will view the case in light of the Right to Privacy Judgment.