The Inaugural Post: Consensual gay intercourse is finally decriminalised

Having received from my grandmother ideas about 'auspicious' and 'inauspicious', and having mutated them from their sun-and-moon-in-the-right-place form to a let-us-begin-with-a-note-of-hope form, it delights me to begin this blog with a post on, and about, a big day for civil liberties in India. Homosexuality is no longer illegal in India, and the judiciary has finally recognised the rights of homosexuals to consensual intercourse.

To the human rights lawyer, this judgment is poetry - many of us cried as we read it. We have spent our years at law school upset with a legal system that stands on such a beautifully crafted base of rights but persistently holds on to its archaic ugly, incongruent laws such as section of the Indian Penal Code which punished consensual sex between gay men. This judgment is going to one of the classics that law students study as a turning point in the law, that historians write about as a turning point for the country.

Section 377 of the Indian Penal Code:

Unnatural offences.--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.

Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Issues

This section has basically been interpreted such that intercourse between two consenting homosexuals was considered 'against the order' of nature. Gay men have been harassed for the longest time with threats of prosecution under this section.

The trouble with getting rid of it has been that it is the legal provision under which child sexual abusers targeting little boys are prosecuted, and if it were removed, the absence of another appropriate provision would create a significant amount of trouble.

The Judgment

The Delhi High Court found its way around the issues by reading the provision such that it applies to cases of child abuse but not to cases of consensual sex.

"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors."

More excerpts from the judgment (full text here*):

"Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself."

"The inevitable conclusion is that the discrimination caused to MSM and gay community is unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India."

"The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. "

"A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review."

UPDATE:

The Alternative Law Forum has published a primer on the Naz Foundation judgment. It can be downloaded here.

*Credit to http://lawandotherthings.blogspot.com/ for promptly posting the link to the judgment.