LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Legal status

Homosexual relations are legally still a crime in India under an old British era statute dating from 1860 called Section 377 of the Indian Penal Code which criminalises 'carnal intercourse against the order of nature.' The vague nature of the legislation has resulted in it being used against a wide range sexual behaviour like oral sex (heterosexual and homosexual), sodomy, bestiality, etc. The punishment ranges from ten years to lifelong imprisonment.

The relevant section reads:

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.[18]

None of the major Indian political parties have endorsed gay rights concerns into their official party manifesto or platform. However, one of the Politburo members of the Communist Party of India (Marxist), Brinda Karat, did write an open letter in 2003 to the then Minister of Law and Justice, Arun Jaitley, demanding a repeal of section 377, IPC.[19]

[edit] Enforcement of the law and Rights violations

Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights Watch argue that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men, and other groups at risk of the disease.[20] The group documents arrests in Lucknow of 4 men in 2006 and another 4 in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals (hijras and kothis) in India.

[edit] Demands for law reform

In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, a sexual health NGO called the Naz Foundation had no locus standi in the matter. Since nobody has been prosecuted in the recent past under this section it would perhaps seem unlikely that the section will be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. However, this does not rule out the possibility of some other High Court ruling on this section or even the Supreme Court in a "Public Interest Litigation" (PIL). Naz Foundation won its appeal in the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider on its merits.[21] The Delhi High Court has been reconsidering the petition since October 2006. There has been a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377'. Voices has supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.[22]

In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality.[23]

The law continues to be on the books. It is used by some to threaten and blackmail homosexuals. It has been used in the past to harass people involved in condom distribution amongst homosexuals. It is also used by the police when registering complaints lodged by the parents of the parties involved. For instance, a lesbian couple that ran away together in Uttar Pradesh, India were arrested and handed back to their parents, in spite of both parties being of legal age by applying this section as the legal basis for their arrest.

There is increasing demand from activists to decriminalize homosexual relationships. An impressive collection of academic articles and personal stories celebrating diverse sexuality is Because I have a Voice: Queer Politics in India, edited by Arvind Narrain and Gautam Bhan.[24] The book documents current struggles at personal and political levels.

In September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth came together with scores of other prominent Indians in public life to publicly demand this change in the legal regime.[25] The open letter demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.' You can add your name to the letter here.

On July 29th, 2008, Delhi held its first ever gay pride march, along with similar gatherings in Bangalore and Calcutta.[26]

[edit] Recognition of same-sex couples

There is no legal recognition of same-sex couples under Indian law. During a recent visit to India by the Canadian Prime Minister Paul Martin, the Indian Prime Minister Manmohan Singh was asked by a journalist what he thought of the new law allowing gay marriage in Canada. His reply was that "there would not be much appreciation for a law like that in India," and he went on to talk about how they were culturally very different societies.

The supreme Sikh religious body, the Akal Takht, has issued an edict condemning gay marriage and has told Sikhs living in Canada not to support or allow gay marriages in gurudwaras. In 2005, two unnamed women in Hyderabad asked the Darul Qaza, an Islamic court, for a fatwa allowing them to marry, but permission was denied with a rebuke from the chief qazi. None of the principal Christian denominations in India allow same-sex marriage.

However, since 1987, when the national press carried the story of two policewomen who married each other by Hindu rites in central India,[27] the press has reported many same-sex marriages, all over the country, mostly between lower middle class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions). In "Same-Sex Love in India : Readings from Literature and History", author Ruth Vanita analyzes dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious, and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.

There have also been a couple of high profile celebrity same-sex marriages, such as the civil union of designer Wendell Rodericks with his French partner, conducted under French law in Goa, India. Several LGBT rights organizations have demanded the right to same-sex marriage, and, recently, several Indian television talk shows, inspired both by news from the West, such as Elton John's civil partnership, and by reports about Indian same-sex couples eloping and facing persecution by families and by police, have discussed the issue.

"Loved reading this piece by amit gupta_lawyer?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Criminal Law, Other Articles by - amit gupta_lawyer