by G.K. Goswami and Aditi Goswami
Introduction
The recent decriminalising of homosexuality by the Supreme Court of India is a milestone on the bumpy road to recognise and strengthen the rights of Lesbians, Gays, Bisexuals and Transgenders (LGBT).1 The recognition of the third gender by the Indian Apex Court was a paradigm shift for fortification of the LGBT rights in India.2 The Puttaswamy case3 laid the foundation stone for legalising homosexuality since holding privacy as a fundamental right buttressed the claim of sexual orientation as the right to self-determination. From privacy emanates several individuals' rights and homosexuality is an off-shoot of sexual preferences confined to personal choice.4 The intertwined concept of privacy and intimate liaison is described by Ackermann J. of the Republic of South Africa: “Privacy recognises 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. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”5
Decriminalisation of persons of queer orientation is a step towards India's commit-ment to integrate legal regimes with the inter-national human rights standards. However, legalising cis-sex with certain caveats is not the zenith the pink community aspired for; indeed judicial approval ignited a demand for a bundle of right discourses. Even prior to the judicial approval of homosexuality, sexual liaison among same sex individuals in the private sphere remained in practice but with a tinge of fear to face legal action, if caught. Rarely homosexual conduct of consenting adults maintaining privacy had attracted penal action in India.i However, the pink community since ages not only suffered from severe social stigma but also faced crisis in individual identity, social relations, conceptions of public space and other discourses in society.6 The discussion here is to understand the actual needs of the rainbow community and existing challenges in legal sphere in providing them a pedestal equal to that of heterosexuals so that they may not face any discrimination for enjoying the right to life with ‘dignity'.
Socio-legal Response to Homosexuality
Traditionally homosexuality was regarded as “unnatural vice”—a threat to individual and society, and sex was considered means for the purpose of procreation and not for recreation. Religions like Judaism, Christianity and Islam proscribed cis-gender sex as sin being unnatural temptation, and prescribed for punishment. Islamic jurisprudence, based on the story of Lot, holds that male-to-male sex is sin amounting to sacrilege.ii7 Some religious denominations like Hinduism, Sikhism though consider homo-sexuality a sin, but prescribe expiation measures instead of punishment. Third gender (hijira) in Hinduism was recognised since the Vedic period having mention in Hindu texts like Manusmriti and Sushruta Samhita. Medieval Hindu temples have openly depicted homosexuality and lesbianism, which may be seen on wall carvings at the Khajuraho temple of Madhya Pradesh. Buddhism forbids non-vaginal sex, including lesbian and gay, considering it sexual mis-conduct.
British imperialism is blamed for having ‘poisoned' the societies against homosexuality, despite the fact that man-to-man intercourse was taboo in the Middle Assyrian Law Codes (1075).8,9 iii In Western civilisation, sodomy-related laws mainly emanated from Christianity; and the Roman Catholic Church since the early 12th century launched a colossal campaign against homosexuals.10 Fleta, a late thirteenth century treatise of law, was the first known legal writing in England on sodomy.11,12 The Buggery Act of 1553, an enactment of British Parliament, criminalised anal penetration, bestiality and also homosexuality; and was mostly borrowed subsequently by the rest of the world. In colonial America, the sodomy statutes were introduced by the Anglo-American legal system but largely remained unenforced because man-to-man eroticism did not threaten the social structure or patriarchal ownership of wealth. In 1779, Thomas Jefferson propounded a law in Virginia for awarding a punishment of castration in place of death penalty for the guilt of sodomy. Till 1962, anal sex was a felony in every state of the United States, punished by long terms of incarceration. The dark legacy of British colonial rule remained the motivation behind introducing Section 377 of the Indian Penal Code, 1860 by Thomas Babington Macaulay, the architect of the criminal legal system of India.13 The Indian Penal Code was the first comprehensive codified law enacted anywhere under the British Empire.iv14,15
The British administration succeeded in imposing and institutionalising a set of legal codes to criminalise homosexual orientation in its colonies. France, the other big colonial giant, in addition to other colonial powers like Dutch, Spanish and Portuguese, in contrast to the British experience, did not impose institutional legacy for criminalising homosexuality.16,17 In the South Asian region, Afghanistan, Bangladesh, Bhutan, Maldives, Pakistan, Sri Lanka, still continue punishing anal sex, but Nepal has legalised it in 2007. Consensual male-to-male sexual conduct was never overtly criminalised in China. Several jurisdictions like Iran continue awarding death penalty for sodomy;v,vi18 however, Iraq has legal male-to-male sex since 2003, but it is banned in military services since 2007. Samesex marriage is illegal in Iraq. Worldwide, the demand for LGBT rights received impetus with the support of the international human rights community, and several juris-dictions have aligned sodomy laws by legalising same-sex union.
Decriminalising cis-gender sex: Global Perspective
In 1786 Pietro Leopard, the Holy Roman Emperor, abolished death penalty for all crimes including sodomy and replaced it by prison and hard labour. The French Penal Code, 1791 struck down sodomy, blasphemy, heresy and witchcraft considering them ‘victimless crimes'. The French model was imposed in French-ruled Europe under the aegis of the Napoleon Penal Code, 1810. Later Brazil (1830) and the Ottoman Empire (1858) also defaced the sodomy laws. England and Wales lifted death penalty in 1861. After the Bolshevik Revolution, V.I. Lenin decriminalised sodomy in 1919 in Russia but it was re-imposed in 1920 by Joseph Stalin.19,20
In the United Kingdom, the Wolfenden Committee considered the law relating to both prostitution and homosexuality in the backdrop of morality, legality and the role of state in regulating sexual conduct. The Committee Report, 1957 paved the way for introducing the Sexual Offences Act, 1967 to decriminalise homosexuality in England and Wales,vii while the Criminal Justice (Scotland) Act, 1980 legalised same-gender sexuality in Scotland; and in North Ireland in 1982. The European Court of Human Rights in Dudgeon v. United Kingdom21 held that penalising homosexuality breaches Article 8 of the European Convention of Human Rights (ECHR), 1950; 22 consequently Northern Ireland legalised homo-sexuality.
The Dudgeon case was cited in a landmark judgement Lawrence v. Texas23 on civil rights, where the Court of Appeals of Texas over-ruled Bowers v. Hardwick24 and paved the way for decriminalising sodomy between consenting adults at a private place and also validated homosexuality in 14 States of the United States.25 Later the Supreme Court of the United States upheld the constitutional validity of same-sex marriage in Obergefell v. Hodges,26viii though such marriages were already valid either by law or court rulings in thirtysix states. Cyprus in 2011 became the last European country repealing laws on criminalising pink sex. Of course, India has shown back and forth judicial panoptics,ix but recently on September 6, 2018 joined the club for approving queer sexuality.27 At present 71 jurisdictions globally continue to criminalise cis-gender sexuality.
Social Issues with LGBT Community
Globally, the rainbow community faces a series of social discrimination and violence against them compared to straight cis-gender people. The FBI reported that during 2013 bias against sexual orientation and gender identity accounted for more than 21 per cent of hate crimes in the USA, the second largest category after race.x Employ-ment discrimination at different levels is yet another challenge before this community in addition to homelessness and poverty. The US research findings established that LGBT workers are likely to earn less compared to the general population.xi The 113th US Congress has enacted the Employment Non-Discrimination Act (ENDA) in 2013, but discrimination and humi-liation of these victims still keep rolling based on sexual orientation and gender identity.xii No such in-depth study is available in the public domain for the Indian context. However, there is considerable social distance between the Court vedict and real social world norms.28
Sexual union under the religious text is generally meant for procreation and not for sheer emotional pleasure, and hence all religions proscribe homosexuality. History speaks that the clergy, the self-proclaimed watchdog of every religion, express vehement resistance for adopting changes in their religious ethos irrespective of the Court's verdict. People are more religion-centric in comparison to obedience of the law. The same-sex marital set-up may further affect the patriarchal and patrilineal course of society in a big way especially having the backdrop of the “traditional” mindset of the Indian populace. Discrimination and humiliation may potentially extend to the next generation when children born to cis-sex couples face bigotry from their peer groups. Without public acceptance of the intended social change, mere Court approval may not brace the desired result. In fact a society may require a long time to reconcile to the new marital outfits emerging in the 21st century.
LGBT Rights: What Next?
Decriminalising homosexuality is just the beginning of the journey towards recognising the LGBT rights in India. Now the rainbow community needs further recognition under various family laws like marriage and divorce, legitimacy of the child, inheritance, maintenance etc. In India, marriage is mainly governed by the Personal Laws in addition to the Special Marriage Act, 1954 (SMA). However, the existing legal regime only recognises heterosexual marriage, and marital knots between homo-sexuals are socially prohibited. The law of inheritance is essentially the subject matter of personal law, which again recognises only legitimate children or lineage for the purpose of devolution. Recognition of reproductive rights of the LGBT will pose greater challenge demanding the complete overhaul of family laws. In case the same-gender couple belongs to different religions, they must decide their choice.
The Indian legal acumen must address whether reproductive rights are individualistic or confined to the shackle of marital ties with regard to adopting assisted reproduction and surrogacy. For the purpose of procreation, reproductive rights of the LGBT must be streng-thened by legally permitting the use of artificial reproductive technologies (ARTs), especially the surrogacy of sperm, ovum or womb to procreate a baby. In the same-sex marriage, the child may be born by using ARTs creating multiplicity of parentage unlike normal binary parenthood.29 Among hetero-sexual couples also surrogacy of gametes or womb may enhance the number of parents.30 Adoption laws also need suitable accommodation in favour of the LGBT people.
Legitimacy of a child in India is still governed by the archaic law of the colonial period when ARTs were unknown. Presumption of legitimacy of a child is governed under Section 112 of the Indian Evidence Act, 1872 which demands the birth of a legitimate child from lawful wedlock. Section 112 further presumes that the social father (pater—the legally wedded husband of the child's mother) contributes his sperms for pregnancy but in real life due to surrogacy31 (extra-marital relations or sperm-donation), the sperm contri-butor (genitor) may be a different man who remains unrecognised under the law. DNA profiling indicates the biological genitor but the law recognises the socio-legal pater, and this creates a legal conundrum, if both are identified as different men, resulting in the innocent child being given a ‘fatherless' identity during judicial disposal of issues related to marital discord alleging infidelity. The same issue was raised in the celebrated case of Rohit Shekhar v. Narayandutta Tiwari,32 where the common public believes that the DNA match could establish the defendant as the ‘father' of Rohit, but it is not in the true spirit of the law.33
In the era of ARTs and liberal sexual liaison, a child must be legally enabled to know his genetic lineage for social and medical purposes. Since every child has the innate right to know his genetic origin to a mother and father and such right becomes more compelling in the LGBT set-up where children born to the same sex couple will yearn for knowing their genetic origin. The UN Convention on the Rights of the Child (UNCRC), 1989 recognises a father and mother as a basic right of every child, and the state's responsibility to provide assistance to establish the identity of a child.xiii The existing legal regime in India is silent on these points despite India being a signatory of the UNCRC. Legitimacy and parentage laws need the attention of law-makers.
Conclusion
‘Laws enforcing sexual morality may cause misery of a special degree', a famous quote of eminent jurist H.L.A. Hart, is a befitting reply to the entire discourse on regulating homo-sexuality.34
Endnotes
i. Reported cases in India under Section 377 of the Indian Penal Code (IPC) during 2016 were 2187 (0.1 per cent of total IPC crimes), 84.4 per cent cases were charge-sheeted by police, but the rate of conviction was 40.1 per cent. (Crime in India-2016 published by the National Crime Records Bureau, New Delhi). Most of these cases are non-consensual or with minor victims.
ii. Khaled El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 1500-1800 (University of Chicago Press: Chicago, 2005). The Holy Quran regarded that Prophet Lut ibn Haran was sent to cities of Sodom and Gomorrah (situated on the Jordan river in the land of Canaan) to preach against sinful acts of rape, incest and homosexuality. These cities were destroyed since their inhabitants ignored the Lot's message. The Holy Quran says: “Have you become so shameless that you commit such indecent acts as no one committed before you in the world?” (80). “You gratify lust with men istead of women: indeed you are a people who are transgressors of all limits” (81). [Surat al-A'raf (7) Verses 80-84]
iii. According to Human Rights Watch, the jurisdictions under the British Empire that directly inherited from the British laws on homosexual conduct included: Australia, Bangladesh, Bhutan, Botswana, Brunei, Fiji, Gambia, Ghana, Hong Kong, India, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Marshall Islands, Mauritius, Myanmar (Burma), Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, Sri Lanka, Sudan, Swaziland, Tanzania, Tonga, Tuvalu, Uganda, Western Samoa, Zambia and Zimbabwe.
iv. Together with the Queensland Penal Code of 1899, became the model for British colonies' legal systems, and was exported and imposed on various other British colonial acquisitions throughout the Asian and African continents.
v. The Islamic Penal Code of Iran of 1991: Part 2 deals with sodomy under which Article 111 punish both active and passive persons by saying ‘Sodomy involves killing if both the active and passive persons are mature, of sound mind and have free will.' Part 3 of the Code deals with Lesbianism by awarding death penalty under Article 131, if the act is repeated four times.
vi. Iran, Mauritania, Nigeria, Qatar, Saudi Arabia, Somalia, Sudan and Yemen have legal provisions awarding death penalty for homosexuality.
vii. The Act, 1967 titled “an Act to amend the law of England and Wales relating to homosexual acts” has 11 sections which decriminalised homosexuality provided the consenting parties were minimum 21 years of age. Section 2 contains two caveats: firstly it would be an offence if more than two persons are involved, and secondly when an act takes place in a laboratory having public access.
viii. The case is the consolidation of six lower court cases where the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to the same-sex couples by both the Equal Protection Clause of the Fourteen Amendment to the United Amendment to the United States Constitution.
ix. The Law Commission of India in its 172nd report titled “Review of Rape Laws” in 2000 has recommended the deletion of Section 377 IPC. In 2009, Delhi High Court in Naz Foundation v. Government of NCT Delhi [2010 Cri.LJ 94] decriminalised Section 377 IPC; however, the Supreme Court of India in December 2013 upheld the constitutional validity of Section 377 in Suresh Kumar Koushal v. Naz Foundation [(2014) 1 SCC 1] and thus reversed the judgement of the Delhi High Court; this brought back Section 377 IPC to life.
x. Latest Hate Crimes Statistics Report Released, FBI News, December 8, 2014. Available at: https://www.fbi.gov/news/stories/latest-hate-crime-statistics-report-released (last visited on September 18, 2018).
Much ink has been spilled on pros and cons for recognising the LGBT rights, now it is time to expand more rights without unwarranted fight. Legalising queer orientation is just the beginning to recognise bundle of intertwined rights necessary for pink community to live dignified life. India must learn from the experience of other jurisdictions to attune relevant laws to accommodate same-sex marriage and other allied legal issues. It is herculean task for amending relevant personal and other secular laws; indeed real test of Indian parliament and judiciary begins now as to how alignment of legal regime on the LGBT issues will take off after partly defacing Section 377 from the law statute. To begin with an expert committee comprising national experts of various disciplines including legal scholars should be constituted to explore the legal remedies. At the same time the opinion of experts from those jurisdictions which have already ventured into this complex area would also benefit.
xi. As the Congress considers action again, 21 per cent of the LGBT adults say they faced workplace discrimination, Pew Research Center, November 4, 2013. Available at: http://www.pewresearch.org/fact-tank/2013/11/04/as-congress-considers-action-again-21-of-lgbt-adults-say-they-faced-workplace-discrimination/ (last visited on September 18, 2018).
xii. A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times, Pew Research Center, June 13, 2013. Available at: http://www.pewsocialtrends.org/files/2013/06/SDT_LGBT-Americans_06-2013. pdf (last visited on September 18, 2018).
xiii. Article 7(1) of UNCRC: “as far as possible, the right to know and be cared for by his or her parents”. Article 8(2) casts duty upon state by saying, “State shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity”.
(Endnotes)
Reference
1. Navtej Singh Johar v. Union of India (2018) SCC OnLine SC 1350. The Apex Court on September 6, 2018 has partly struck down Section 377 of the IPC to permit consensual homosexuality but penal action for unnatural sex with minors and animals will remain in force.
2. National Legal Services Authority v. Union of India (2014) 5 SCC 438.
3. K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 : AIR 2017 SC 4161: 2017 SCC OnLine SC 996.
4. K. Kollman, “Same-sex unions: the globalisation of an idea” 51(2), International Studies Quarterly, 329—357 (2007).
5. National Coalition for gay and Lesbian Equality v. Minister of Justice 1998 ZACC 15 : 1998 (12) BCLR 1517 (CC).
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7. Khaled El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 1500-1800 (University of Chicago Press: Chicago, 2005).
8. Enze Han and Joseph O'Mahoney, “British colonialism and the criminalisation of homosexuality”, 27(2) Cambridge Review of International Affairs 268-288 (2014).
9. A. Gupta, “This alien legacy: the origins of ‘sodomy' laws in British colonialism” (New York: Human Rights Watch, 2008).
10. James Neill, The Origins and Role of Same-sex Relations in Human Societies (MacFarland and Company, Inc. Publishers: North Carolina, 1940).
11. H.G. Richardson and G.O. Sayles (trans.), Fleta (Seldon Society: London, 1955).
12. N. Denholm-Young, “Who Wrote “Fleta'?” 58(229) The English Historical Review 1-12 (1943).
13. Supra note 8 at 27(2).
14. M.L. Friedland, “Codification in the commonwealth: earlier efforts”, 18(3) Commonwealth Law Bulletin 1172 (1992).
15. H.F. Morris, “A history of the adoption of codes of criminal law and procedure in British colonial Africa, 1876—1935”, 18 (1) Journal of African Law 6—23 (1974).
16. D.E. Sanders, “377 and the unnatural afterlife of British colonialism in Asia”, 4(1) Asian Journal of Comparative Law, 1—30 (2009).
17. R. Tielman, and H Hammelburg, “World survey on the social and legal position of gays and lesbians” in R. Tielman, A. Hendriks and E. van der Veen (eds), The third pink book: a global view of lesbian and gay liberation and oppression 249—342 (Buffalo: Prometheus Books, 1993).
18. D. Littauer, “Four Iranian men due to be hanged for sodomy”Pink News, May 12, 2012. Available at: http://www.pinknews.co.uk/2012/05/12/four-iranian-men-due-to-behanged-for-sodomy/ (last visited on September 18, 2018).
19. Johan N. Hazard, “Unity and diversity in Socialist law” 30 Law and Contemporary Problems 270-290 (Spring 1965).
20. Donald West J. and Richard Green (eds.), Sociolegal Control of Homosexuality: A Multi-Nation Comparison 224 (Plenum Press: New York, 1997).
21. (1981) 4 ECRR 149 : [1981] ECHR 5 : IHRL 31 9ECHR 1981).
22. Article 8 of ECHR: Right to respect for private and family life.
23. 539 U.S. 558 (2003). Kennedy J. observed, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
24. 478 U.S. 186 (1986).
25. Fourteen states of US: Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia.
26. 576 U.S. _ (2015) : 192 L. Ed. 2d 609 (U.S. 2015).
27. Supra note 1.
28. Harsh Kapoor, “Landmark SC Ruling on Section 377 furthers the Frontiers on Personal Rights”, Vol. LVI, No. 39, Mainstream Weekly, September 15, 2018, pp. 3.
29. G.K. Goswami, “The genetic truth of surrogate parentage” 83 (4) Med Leg J (2015) 188-193.
30. G.K. Goswami, Assisted Reproduction and Conflicts in Rights (Satyam Law International: New Delhi, 2016).
31. G.K. Goswami, Siddhartha Goswami, “Unbridled Surrogacy: A Pathway to Next Generation Crime”, Vol. LV No. 51 Mainstream Weekly, December 9, 2017, pp. 33-35.
32. 2012 (1) JCC 169. [also see ILR (2010 Supp. (3) Del. 573]
33. Supra note 30.
34. Herbert Lionel Adolphus Hart, Law, Liberty and Morality 22 (Stanford University Press: California, 1963).
Dr G.K. Goswami, IPS, is the Joint Director, Lucknow Zone, Central Bureau of Investigation. A serving member of the Indian Police Service from the UP cadre, he is currently on deputation to the Government of India, and is also pursuing research activities at the Gujarat Forensic Sciences University, at Gandhi Nagar. His rank is that of Inspector General of Police (parent cadre: State of UP). Aditi Goswami is a student at the Jindal Global Law School, Sonepat. Dr Goswami can be contacted at e-mail: goswamigk.ips[at]gmail.com