Some men like Jack and some like Jill; I’m glad I like them both; but still
I wonder if this freewheeling really is an enlightened thing –
or is its greater scope a sign of deviance from some party line?
In the strict ranks of Gay and Straight, What is my status?
Stray? or Great?
– Vikram Seth
Homosexuality and bisexuality, as we now know from modern research, are ubiquitous throughout the world. Whether tolerated or not, they are practiced in every culture to some degree. The differences among various cultures are the degrees of openness regarding practice.
In a democratic country like India, we have a law that abuses human rights and limits fundamental freedoms such as is enumerated in Section 377 of the Indian Penal Code, which, by prohibiting “carnal intercourse against the order of nature” in effect punitively criminalizes private, consensual sexual acts between people of the same sex.
SECTION 377 OF THE INDIAN PENAL CODE
The Indian version of the anti-sodomy law is crystallized in the form of Section 377 of the Indian Penal Code, 1860. Section 377 was enacted in the year 1860 by Lord Macaulay, as a part of controlling and regulating the Indian subject. Section 377 reads thus:
Unnatural sexual offenses: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment 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 offense described in this section.
Even upon a single glance, what would naturally flow from the definition is that it is the act of sodomy and not the homosexual act that is the act being penalized here. However, the use of this section against homosexuals flows from the centuries old misconception of equating sodomy with homosexuality. Sodomy is viewed as the only expression of homosexuality and other emotional and expressions have seldom been recognized. Thus, though the section is a de jure attempt to criminalize the act of sodomy, de facto, it is used to criminalize homosexuality. In fact, Section 377 does not per se discriminate between homosexuals and heterosexuals who have committed sodomy, both are punishable equally for the act.
SAME-SEX MARRIAGES ARE NOT INVALID UNDER INDIAN LAWS
The marriage laws of India necessitate marriage as an institution of ‘persons’; and not of a man and a woman only. The Hindu Marriage Act does not mandate in words that a marriage can be solemnized between a man and a woman alone. The Special Marriage Act, 1955, which is a uniform code, says that marriage between any two persons may be solemnized.
The argument that though these legislations do not use the words “man” and “woman” and use “persons” instead is of no importance as legislative intent is to be seen and by a total reading of the Acts the scheme can only be seen as mandating a marriage between a man and a woman is also not tenable as the right to marry is a basic human right, guaranteed as a fundamental right by various nations and recognized as a fundamental right in India. The Delhi High Court, in guaranteeing the right to marry even to a foreigner noted that:
“There is also no denial of the legal position that even a foreign national while incarcerated has certain fundamental rights and is entitled to protection and enforcement thereof. The right to marry can be said to be one of those rights. Consequently, the appellant has the right to marry either an Indian or foreign national.”
Now if we interpret the law in light of the argument that the scheme of the Acts obviates marriage as an institution of man and woman, these laws would deny this fundamental right to the citizens, and homosexuals are no doubt citizens, and thereby we would come to anomalous situation where all of India’s marriage laws would be unconstitutional. However, it is a normal canon of construction that the interpretation which would not render a law invalid is accepted as opposed to one which renders the law invalid or unconstitutional. Clearly here that interpretation would imply that the Acts see marriage as an institution of persons and not of a “man” and a “woman”.
HOMOSEXUALITY: THE ARGUMENTS
Laws regulating and/or penalizing homosexual activity impede public health programs as it drive underground many people at risk. The human species will be in danger of dying out if homosexuality is legalized due to lack of reproductive power in homosexuals.
Infact gays are giving big favour by not bringing more hungry mouth into this excessive overpopulated world. At the same time the continuity of species can never be in danger due to sexual minority which represent not even 10% of the total world population. The principle of respect, non discrimination and the people autonomy to support legal recognition of homosexual unions of the individual is not reasonable to invoke. It is something quite different to hold that activities which do not represents a significant or positive contribution to the development of the human in society can receive specific and categorical legal recognition by the State.Section 377 of IPC violates the right to life and personal liberty, the right to equality and the right to freedom guaranteed to all citizens as Fundamental Rights under Chapter III of Indian Constitution, Sodomy was illegal and was until very recently.
In countries where homosexuality is legalized sodomy law is repealed and has been considered obsolete taking into account the social dynamics. Homosexuality is a disease. The Indian Psychiatric Society also acknowledges that homosexuality is a kind of mental illness. The American Psychiatric Association has removed homosexuality from its list of mental illnesses in 1973 and the World Health Organization did the same in 1981. Decriminalization may be a step towards removing some of the stigma associated with homosexuality and may have positive repercussions on relationship between homosexual and their families. Criminalization reinforces negative societal attitude regarding homosexuality which in turn results in greater discrimination and thus impact adversely on the self esteem of many homosexuals which often leads to deception and friction within families.
This is true that the conflict between homosexuals and heterosexuals can be witnessed in the institution of marriage not only in India but across the world where sodomy law is applicable. This conflict is arising on account of the reason given in support as well as against the two different types of marriages which involves very delicate issues for social and legal recognition of sexual minority that is whether the social and legal recognition should be given or not and the same has been tabulated below:
|Homosexual marriages should not be legalized
||Homosexual marriages should be legalized
|The institution of marriage is traditionally the union between man and women.||There is no moral ground on which to support the tradition of marriage as a heterosexual institution. For e.g. slavery once existed but now abolished on humanitarian ground.|
|Institution of marriage involves procreation and rearing of children||If it was so than there would have been attempt to prohibit unions between a sterile women and a fertile man or vice versa. Nor does legislation exist which requires a married couple to have children. It is true that homosexuals cannot procreate within their union but there are many options available which enable them to have children, including adoption and artificial insemination.|
|The traditional nuclear family comprises of eight primary relations (Husband, wife, Father, Mother, Son, daughter, Brother, Son).||The traditional view of family as consisting of a mother, father and children is no longer representative of today’s society.|
|The absence of sexual complementarity in these unions creates obstacles in the normal development of children who are placed in the care of such parents. They would be deprived of the experience of either fatherhood or motherhood. Also this is gravely immoral and in open contradiction to the principle, recognized by the United Nation Convention on the rights of children, that the best interest of the children as the weaker and more vulnerable party are to be of paramount consideration in every case.||Scientific studies and psychologists are of the opinion that the love and commitment of the parents make difference not the gender. The children raised by homosexual partners are just as good as those of straight couples.|
|Marriage is a sacred institution. The homosexual inclination is however ‘objectively disordered’ and homosexual partners are ‘sins gravely contrary to chastity’.||Religion is not an obstacle. Many sects of Buddhism celebrate gay relationship freely. Instances of homosexuality are available in all major religious mythology.|
|Same sex marriages is an untried experiment.||Homosexual marriages is not an untried experiment. In Denmark since 1989 homosexuality is legally permitted. The result of the experiment suggests that homosexual marriages has actually been civilizing and strengthening, not just the institution of marriage but the society as a whole. So perhaps we should accept the fact that some one else has already done the experiment and accept the result as positive.|
|Same sex marriages would start us down a slippery slope towards legalised incest, bestial marriages, polygamy and all kinds of other horrible consequences.||If the argument were true than it would have already happened in countries where legalised gay marriages already exists.|
|Gay marriages would mean forcing businesses to provide benefits to homosexual on the same basis as Heterosexual sex couples.||There is no contradiction to the argument as all are equal and have equal fundamental rights.|
|Homosexual marriages are unnatural. Hence Sodomy law needs to be more strict.||Homosexuality is natural. There is substantial agreement amongst researchers that sexual orientation is due to genetic factor and is determined by age five or six.|
|Homosexual marriages are the outcome of today complex individualised post modern industrial utilitarian society.||Instances of homosexuality can be seen even in ancient, medieval and modern India. Its not the development of post modern society.|
|No rights exists that can compel a state to recognise any relationship contrary to the definition of traditional marriages.||Denial of legal recognition infringes the rights of citizens.|
|Decriminalised homosexual marriages will lead to an increase in homosexuality and this in turn will undermine the whole institution of marriage and family.||Sexual orientation is due to genetic factor and it is unlikely that an increase in the incidence of homosexuality will occur as a consequence of decriminalization.|
|Societal attitude is that people oppose it, hate it, even fear it. That is people are not comfortable with the idea of homosexual marriages.||Homosexual marriages have the potential to reject hierarchical concept of gender. They challenge patriarchy and the male supremacy derived from it and are consequently punished for not participating fully in daily maintenance of women oppression.|
|Heterosexuality has the advantage of slowing the speed of sexually transmitted disease.|
Every person must have the right to decide their gender identity, including transgender, transvestites and hijras.
About the Author
Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a book titled – Be Your Own Lawyer.
 http://www.bidstrup.com/phobiahistory.htm (Visited 13-12-2013)
 Section 377, Indian Penal Code, 1860
 § 5, Hindu Marriage Act, 1955; § 4, Special Marriage Act, 1954; § 4, Indian Christian Marriage Act, 1872.
 “Section 5. Condition for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)” Hindu Marriage Act, 1955
 S.4, Special Marriage Act, 1954
 Art.16, Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 (1948); Art.12, European Convention on Human Rights; Art.23, International Covenant on Civil and Political Rights, 999 U.N.T.S. 171; Art.10, Intl. Covenant on Eco.. Soc. and Cul. Rights, 6 I.L.M. 360; Art.9, Charter of Fundamental Rights of the European Union; U.K. Declaration of the Rights of People with HIV & AIDS.
 Loving v. Virginia 388 US 1; Skinner v. Oklahoma 316 US 535, Meyer v. Nebraska 262 US 390; Maynard v. Hill 125 US 190; Zablooki v. Radhail 434 US 374; Turner v. Safely 482 US 78; Eisenstadt v. Baird, 405 U.S. 438
 Gobind v. State AIR 1975 SC 1378, para.24; Rajgopal v. State AIR 1995 SC 264.
 Hegedus Lal Csaba v. Union of India 2005 Cri LJ 2486 [Hereiafter Csaba Case]
 Id at para.5
 “First attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted.” B.R. Enterprises v. State of UP (1999) 9 SCC 700