Leave Gays Alone

Leave Gays Alone

Rajeev Dhavan

Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.

The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.

In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.

Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.

Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.

The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.