Should Homosexuality be legalized?

Introduction:

In this paper an attempt has been made to deal in to one of the most
debatable issue in the present scenario- that is the hue and cry about the aspect
of – “Homosexuality”- Should it be legalized or not? In this paper my focus is on
the arguments for decriminalizing the homosexual conduct. The term
homosexuality has been derived from the Greek term ‘Homo’ (same as) is
intended to describe erotic love between the two persons of the same sex. It is
generally referred to as ‘Lesbianism’- when the persons involved are females.
Homosexuality is an ancient and widespread phenomenon that can involve
moral stigma and even punishment. It has existed throughout the recorded
history. The ancient Greek, Roman and Persian civilizations all condone a
measure of homosexuality and the practiced increased as these civilizations
decreased. It is popular all around the world without any age limitation. The
issue of homosexual conduct has come to this fore in recent legal and political
debates for three main reasons:

(I). Liberalization of the law (in the U.K., by the Sexual Offences Act 1967 as
amended in 2000 and some other countries by a similar legislation) has brought
with it a change in social attitudes, so that the stigma attached to the
homosexuality has to a greater extent disappeared.

(II). Campaigns for lesbian and gay rights – especially in the U.S. have taken on
an increasingly radical character, arguing for an end to all forms of
discrimination against homosexuality, and even for the legalization of ‘same
sex’ marriages.

(III). The outbreak of HIV/AIDS which has been spread in western countries to a
great extent by homosexual activity between males, has led to accusations and
counter-accusations, often of a bitter kind.

The issue of lesbians and gay has also entered the international discourse in the
last twenty years, even though they have suffered prosecution, discrimination
and injustices in many countries including India. If we look at the ancient
thinking about homosexuality what we find is that- it was thought to be the
result of excessive debauchery, a depraved predis position brought on by
autoerotic practices or the placement of a female soul in a male body. With such
reasons people despised homosexuals, their acts were considered as freakish,
but their acts were even regarded as sinful and degenerate.

The whole scenario changed in the 1970’s- whereby the

gay liberation and the women’s liberation changed the sexual landscape of the
west. Hundreds and thousands of gay men and lesbians came out openly and
affirmed same sex eroticism. They succeeded in making the repeal of certain
laws in U.S. But all this was happening only in the west. In the 21st century India
boasts of a society which is highly homophobic and a whole set of Statutes that
not only criminalizes the homosexual act of unnatural sex; but also deprive
them of fundamental and basic civil rights. The most controversial law is
Section-377 of the Indian Penal Code, in India, which criminalizes the
homosexuals.

How law deals with Homosexuality?

Homosexuality has generally been treated harshly by laws reflecting societal

standards in conservative societies that condemn all types of sexual
perversions. However the laws generated by some of the European countries
have been more lenient towards homosexuality. In India homosexual conduct is
prosecuted severely under the penal provisions against unnatural offences,
homosexuals can even be arrested for solicitation or loitering in the public
places. In India homosexual conduct is criminalized under Section- 377 of the
IPC, which provides as follows-

“Whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal shall be punished with imprisonment of either description
for a term which may extend to ten years and should also be liable to fine.”
 The offence of homosexuality is read under this section as an Unnatural
Offence. The term ‘Carnal Intercourse’ used in this section refers to sexual
intercourse between men or in other words, homosexual relationships.

The Indian law against homosexuality seems to be too harsh. The Constitutional
validity of section-377 of IPC is currently under challenge in the Delhi High Court
as being violative of fundamental rights guaranteed under the Indian
Constitution1[1]. Here it may be noted that, in practically all crimes against
human body listed under the Indian Penal Code, some sort of physical violence
or coercion is an essential element of crime. The only exception is in the favour
of section-377, which criminalizes sexual activity that leaves no victims.

Arguments in favour of Decriminalizing Homosexuality:

In the present context, there is a big hue and cry on homosexual

conduct. Gay and lesbian rights activists from various parts of the countries were
protesting for their rights and for decriminalizing the homosexual conduct. There is
a big debate in our country too- whether it should be legalized or not? I am giving
some of the arguments in favour of decriminalizing it, specifically in Indian context-
in view of Section-377 of the Indian Penal Code.

(1). It violates right to liberty guaranteed under Article-21 of the Indian

Constitution, which covers private consensual sexual relations.

The fundamental right to liberty (under Article-21) prohibits the state from
interfering with the private personal activities of the individual2[2]. The concept
of privacy is so broad that no comprehensive and all encompassing definition of
the term can be given. In the case National Coalition for Gay and Lesbian
equality V. Ministry of Justice3[3], the South African court held that, “Privacy
recognizes that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships without
interference from the outside community”. In India for the first time there has
been a demand (through the written submission by petitioners in a suit pending
before the Delhi High Court challenging Section-377 of IPC at page 21) that
there should be a recognition of the fact that central to the concept of
“personhood” is the universal need for an intimate personal sphere where the
‘pursuit of happiness’ may be fulfilled. It follows logically that to be meaningful
‘the pursuit of happiness’ must ensure that the individuals are given the right to
choose how to achieve personal happiness and more so what constitutes
personal happiness for them in the first place; that it should upheld individual
autonomy. This in turn goes on to ensure a private sphere within which the right
to life and liberty may be enjoyed. The privacy-dignity claim concerning private
consensual sexual relations is entitled to protection as a fundamental right as it
falls within both aspects of right to privacy- ordered liberty and individual
autonomy. Even at the international level, the right to privacy has been
recognized in the favour of lesbians and gay man. In the 1980’s, the European
Court of Human Rights was the first international body to hold that the laws
criminalizing consensual, private sexual activity between adults violated the
right to privacy as protected by the Article 8 of ECHR. Most recently the
European Court of Human Rights decided in ADT V. U.K.4[4], that the
criminalization of sexual activities between men when more than two men are
present also violated the right to privacy. Thus consensual private sexual
relations come within the purview of the right to privacy guaranteed under
Article-21 of the Constitution.

(2). Criminalization of homosexual conduct is unreasonable and arbitrary:

Infringement of, the right to equal protection before law requires the
determination of – whether there is a rational and objective basis to the

1[1] Aids Bhedbhav Virodhi Andolan V. Union Of India (civil writ petition no.1745of
1994)

2[2] Kharak Singh V. State of U.P. AIR 1963 SC 1295

3[3] 1999 (1) SA 6) CC

4[4] (Unreported, ECHR, 31st July 2000 Appeal No. 35765/97)

classification introduced. There should be a just and reasonable nexus between the
classification and the object sought to be achieved by the legislation. Section-377 of
IPC, its legislative objective is to criminalize all the sexual activities which are
“against the order of nature”, thus punishing the “ unnatural sex”. Section-377
assumes that –“ natural sexual act is that which is performed for procreation.”
Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This
gives a very narrow view to the distinction between the procreative and non-
procreative sexual act. Hence, the legislative intent of creating a public code of
sexual morality has no rational nexus with the classification created. Further the
very object of the section is vague, unreasonable, arbitrary and based up on the
stereotyped notion that sex is only for procreation. Now if this presumption is
accepted is correct then, what justifies the policies of family planning and the use of
the contraceptive devices? Moreover homosexual activity can never be termed as
unnatural. Modern understanding of psychiatry and psychology, no longer view
homosexuality as a disease or a disorder. Thus the very objective of the section is
facile, unscientific and based upon prejudice alone. Therefore the section, which is
talking about criminalizing the homosexual conduct, is violative of Article-14 of the
Constitution.

(3). Section-377 discriminates on the basis of sexual orientation: forbidden

under Article-15 of the Constitution.

Article-15 prohibits discrimination on several grounds, which includes ‘SEX’. By

prohibiting discrimination on the basis of sex, article-15 establishes that there is no
standard behavioral pattern attached to the gender. The prohibition on non-
procreative sexual acts imposed by section-377 prescribes traditional sexual
relations upon men and women. In so doing the provision discriminates against the
homosexuals on the basis of their sexuality and therefore constitutes discrimination
on the basis of sexual orientation.

(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians
and leads to other adverse effects:

Section-292 of IPC punishes ‘Obscenity’; the current definition of obscenity can lead
it to incriminate the gay and lesbian writings. As male homosexuality is a criminal
offence, the presumption is that it I is something depraved and can corrupt the
minds and bodies of the persons. In the prevailing atmosphere any writing about
the lesbians and the gay men can be criminalized, as homosexuality is treated as
something immoral or depraved.

The workman’s Compensation Act, 1923- provides that in

case of death caused by injury at the work place, the dependents of the
employee are entitled to receive the compensation from the employer, the
dependents will include a widow, minor legitimate son, unmarried daughter,
widowed mother and an infirm son or daughter. Thus a gay or a lesbian couple
cannot claim the benefits under this section. This is not an isolated example and
there are other such Acts that are discriminatory towards homosexuals. The
Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972 define
family in such away that a lesbian or gay couple cannot nominate each other for
receiving the PF or gratuity.

Conclusion:

On the basis of the whole discussion on the aspect of Homosexuality that is –

Should it be legalized or not? In which I have given my arguments in favour of
decriminalizing it, I finally conclude by saying that homosexuality is not an
offence, it is just a way of pursuit of happiness, a way to achieve sexual
happiness or desire. In our society people have branded homosexuals as
“queer”. Yet homosexuality is not new nor is it against the Indian culture, it has
always existed and with much lesser prosecution, that under Section-377 of the
IPC, which is based on British Offences against the Persons Act.
What should be the right approach to deal with homosexuality, the issues are
quite vast and complex. However, the desirability and feasibility of such an
approach remain to be ascertained. In any event there is a growing conviction
that our present method of criminalizing the same sex sexual activity neither
helps the homosexuals nor protects the society in general. We thus need to
decriminalize homosexuality in order to move forward in the direction of human
rights. In this wake of Human Rights, I can very affirmatively disregard all those
explanations of some disorders, or any abnormality behind the conduct of
homosexuals.