Decriminalization as Deregulation? Logics of Sodomy and the State

The International Journal of Human Rights, 2019

This article gives the readers a brief description of the strides the Supreme Court of India has taken in terms of gender justice, and particularly queer justice. It provides an account of the recent decision of the Court in Navtej Singh Johar v. Union of India ('Navtej'). In Navtej, the Court read down section 377 of the Indian Penal Code, 1860 which criminalised 'carnal intercourse against the order of nature'. This article will shed light on how the Court is now keen to analyse the substantive effects a law has on the people affected rather than merely following a formalistic approach. Furthermore, it argues that in Navtej, the Court has recognised the right to sexual orientation in dignity rather privacy. By doing so, the Court has completely side-stepped the criticism that the Supreme Court of the United States had to face in the aftermath of Lawrence v. Texas. This article further examines the nature of decriminalisation of section 377 undertaken in Navtej. It argues that in the absence of a gender-neutral rape legislation in India, the Navtej court deemed it fit to let section 377 govern non-consensual sexual acts of carnal intercourse.

LEXKHOJ INTERNATIONAL JOURNAL OF CRIMINAL LAW ISSN 2456-2297, 2017

Our Society is formed with vibrant traditions and customs which are foundational pillars. India, a country of cultural values cannot afford to fall into western ways. But since growing economy and people getting more and more aware, our country finally has to step out and walk with the rest of the world by confirming LGBT rights. Modernization has made life practical and has led to casting off our old morals and values. The occasion has come for all of us to realize and accept that we have to shed our fence sitting attitude and come up with provisions, which are just fair and reasonable to tackle these fresh avenues efficiently. Marriage is considered as a sacrament in our country and our constitution provides for right to live life happily, therefore if two people of same sex want to be together and that is what makes them happy then nobody should get authority to rebuke or punish them just on the basis of their sexual orientation. In India public discussion of homosexuality is been inhibited in any form and it is a taboo too. The British enacted section 377 of the Indian Penal code in 1860, which was meant to criminalize “sexual offences against the order of nature” but the order of nature has not been defined anywhere. Though over the years the judicial pronouncements has extended the application of this section to all kinds of sexual expressions which are generally possible between two male persons. Homosexuality in India stands criminalized because of a mid 19th century colonial law. Laws cannot be stagnant, as with passing time there is a need to sync with these new issues cropping up. The taboos of inhibiting these issues and not discussing them are no solution. It’s time to come out of our closets and accept that they are not a “hoax” rather take a step forward towards protecting our basic human rights. Moreover the criminalization of homosexual conduct is unreasonable and arbitrary, there should be just and reasonable nexus between the classification and the object to be achieved by legislation.

Rethinking Law and Violence, 2020

RUNAS. Journal of Education and Culture, 2021

In India, homosexual intercourse is legal now, but the legalization battle was not so easy; many obstacles were there. In 1860, Section 377 was introduced in the constitution by the British Government which declared homosexual intercourse illegal. As a result, the law considers the individuals of the LGBT community criminal. So, for gay rights, many NGOs and gay social activists have protested 377 repeatedly. They through the legal path achieved success by legalizing adult homosexuality on September 6, 2018. This theoretical case study focuses on the elaborative discussion on the pathetic social status of homosexuals from 1991 to 2018 due to article 377 which makes it clear why the read down of article 377 is needed for the sake of the Right to Privacy given by the Constitution of India.

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising 'carnal intercourse against the order of nature‘. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi-legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter-majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly-reasoned judgments and a breakdown of stare decisis.

Frontline Magazine, 2003

A movement is taking shape opposing the government stand against the repeal of Section 377 of the IPC, which criminalises private consensual sex between adults. Published in Frontline Magazine, Vol. 20, Issue 26, December 20, 2003 to Jan 2, 2004

of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws, such as § 377, have predictable and detrimental health effects. Such laws create legal and social barriers to effective prevention and treatment of HIV/AIDS. The resulting limited access to medical information and treatment for life-threatening conditions (HIV/AIDS) violates the constitutionally guaranteed and internationally recognized right to health of lesbian gay bisexual and transgender persons and men who have sex with men. However, this paper argues that public health arguments to repeal homophobic laws may act as a double-edged sword if not appropriately placed within a human rights framework. Basing the repeal of such laws on a public health rationale (namely, the increased prevalence of HIV/AIDS in these high risk communities as well as amongst the general population) only further associates lesbian gay bisexual and transgender persons and men who have sex with men with sexual diseases and haphazardly premises their rights on medical reports and expertise and not their fundamental human rights. Reports, affidavits and articles submitted on behalf of the petitioners and interveners in Suresh Kumar Koushal v. Naz Foundation indicate that § 377 creates a discriminatory environment through the institutionalization of stigma and police harassment, negatively impacting the access to HIV/AIDS prevention, treatment information and resources for gay bisexual and transgender persons living in India. Furthermore, international comparative studies of countries in which same-sex conduct is criminalized demonstrate consequential reduced access to HIV/AIDS information and services. In such countries, high-risk groups (e.g. men who have sex with men) are ashamed and afraid to provide vital sexual information to health providers for fear of social harassment and potential arrest. The Supreme Court’s recent decision to reinstate § 377’s application to private consensual same sex conduct unfortunately overlooks these important health considerations, and will likely lead to similar negative health outcomes— thus, in turn, resulting in constitutional violations of the right to health and, consequently, the right to life of the sexual and gender minority persons living in India.

SexPolitics: Trends & Tensions in the 21st Century -Critical Issues. Publicado por Sexual Policy Watch (SPW), 2018

Sexuality Research and Social Policy, 2016

On December 11, 2013, the Indian Supreme Court recriminalized non-peno-vaginal sex under Sec. 377 of the Indian Penal Code (IPC), overturning a 2009 ruling that deemed IPC Sec. 377 unconstitutional. Similar Bsodomy laws^in other countries have been associated with increased violence, harassment, and other discrimination against men who have sex with men (MSM) and transgender women. However, few studies have looked at the effects of such a law in an Indian context. This study examined experiences of victimization among MSM and hijra/transgender women (MSM-H) in the State of Maharashtra using a mixed-method approach. Data came from a quantitative survey and qualitative focus groups and interviews from an HIV prevention study as well as qualitative media and case reports from a local MSM-H-serving community-based organization. MSM-H in Maharashtra reported experiencing a high frequency of harassment, violence, and extortion, particularly from male sex partners met online and police. IPC Sec. 377 was implicated across qualitative sources as creating a culture of protection for harassment against MSM-H by being used directly as a tool for harassment, hindering victims of harassment from seeking legal recourse, and adversely impacting HIV and healthcare services. The reinstated IPC Sec. 377 may directly and indirectly facilitate negative health outcomes among MSM-H. Health agencies and advocates should continue to monitor the impact of IPC Sec. 377, incorporate rights-based approaches to protect MSM-H identities while addressing their health and well-being, and explore avenues to initiate discussions with the government to work toward repealing the law.