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| Human rights versus Section 377 | | |
Anil Divan
India must march in step with other democracies in removing legal restrictions on sexual orientation. With Section 377 of the Indian Penal Code, which criminalises homosexuality, posing a threat to public health by impeding programmes for the prevention and control of HIV/AIDS, the issue has become urgent.
THE DEBATE on the continued relevance of Section 377 of the Indian Penal Code is on centre-stage. The issue is whether homosexual practices between consenting adults, in private, should be decriminalised by amending the section.
In India, it has a very serious public health dimension relating to HIV/AIDS prevention. Sujatha Rao, the Director General of the National AIDS Control Organisation (NACO), a Central Government agency, at a recently held international conference is reported to have said that "Section 377 places a huge constraint on Government's HIV/AIDS programme ... if you criminalise any behaviour you increase the chances of it going underground. We are hoping to change that."
The letter of Vikram Seth signed by many citizens (including myself) and the statement of Amartya Sen pleading for decriminalising homosexual behaviour in private, between consenting adults, have given high visibility to this debate.
The human rights of homosexuals, as recognised in other jurisdictions, will help the Indian citizen to arrive at an informed judgment and de-stigmatise a significant segment of our population. The American Psychological Association has opined that "despite historical views of homosexuality, it is no longer viewed by mental health professionals as a `disease' or `disorder'. But obviously, neither it is simply a matter of deliberate personal selection. Homosexual orientation may well form part of the very fibre of an individual's personality." And the European Court of Human Rights, while deciding a case from Ireland, noticed that "exclusive homosexuality can be congenital or acquired." Some are born with long noses, big ears, or blond hair, so it could be with a homosexual.
In England, homosexual behaviour between consenting adults, in private, was decriminalised in 1967 pursuant to the Wolfenden Committee report.
In 1981, Jeffrey Dudgeon, a shipping clerk in Belfast, applied to the European Court of Human Rights challenging the provisions outlawing homosexuality in Northern Ireland on the ground that they violated his privacy right under Article 8 and his right to equality and non-discrimination under Article 14 of the European Convention of Human Rights. The Court declared the law, insofar as it criminalised homosexual acts between consenting adults, in private, as impinging on the privacy right under Article 8 but did not consider it necessary to deal with the equality challenge. The Court noticed that in a great majority of the member states of the Council of Europe, the sanctions of the criminal law were not applied to such practices.
In 1988, David Norris, an Irish citizen and a lecturer in English in Trinity College Dublin, and a member of the Irish Parliament who was an active homosexual and chairman of the Irish Gay Rights Movement challenged before the European Court the validity of the provisions of Irish law criminalising homosexuality in private, between consenting adults. He failed in the Irish Courts, but succeeded in the European Court, and was awarded substantial damages and costs. In 1992, Alecos Modinos, a Cyprus citizen and president of the Liberation Movement of Homosexuals in Cyprus, challenged the provisions of Cyprus laws criminalising homosexual practices in private, between consenting adults. The European Court, following its earlier judgment invalidated the law, notwithstanding the plea of the Cyprus government that as a matter of policy after the 1981 Dudgeon judgment of the European Court, no prosecution was initiated relating to homosexual behaviour in private, between consenting adults.
In the United Kingdom, interesting cases arose from the government's absolute policy of banning employment of homosexuals in the armed forces. Duncan Lustig-Prean joined the Royal Navy Reserve as a radio operator in 1982. He had a homosexual relationship with a civilian partner. On anonymous information and after an inquiry by the Military Police, his service was terminated on the ground of his sexual orientation. He failed in the High Court, the Court of Appeal, and the House of Lords. The European Court while affirming the right of every state to formulate its own policy regarding armed forces, held that on the facts of the case, his privacy right was violated and the government was unable to justify its absolute policy by concrete evidence to substantiate its allegations of negative effect on the armed forces. He was awarded non-pecuniary damages of £19000, and further £94,875 as pecuniary damages and, in addition, costs and expenses of £34,000. Ms. Jeannette Smith, who joined the Royal Air Force as a nurse and was promoted to the rank of Senior Aircraft Woman, was discharged after an anonymous tip and an inquiry, where she admitted that she was a homosexual. She succeeded before the European Court on the facts, on the ground of the violation of her privacy rights, and was awarded substantial damages and costs
The South African Constitution of 1996 alone has a unique provision in its Bill of Rights. Article 9 provides equality before the law and the equal protection and benefit of the law and enjoins the state as well as all persons not to unfairly discriminate, directly or indirectly, against anyone on several grounds including sexual orientation. In 1998, the Constitutional Court of South Africa, one of the most respected international judicial institutions, unanimously invalidated provisions of several criminal laws, which made punishable homosexual conduct between consenting adult males in private, as violative of the Equality Clause. The judgment was delivered on application of the National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission. The judgments of Ackermann and Sachs JJ, are a tour de force and summarise the law of several countries, including Australia, Canada, New Zealand, and the decisions of the European Court of Human Rights. The court observed that even though the provisions in South African law against such homosexual practices were not enforced, the provisions were invalidated because "they reduce gay men to the status of `unapprehended felons,' thus entrenching stigma and encouraging discrimination." It further observed that "the enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as a legitimate purpose."
The Hong Kong Court of Appeal, in September 2006, unanimously invalidated similar provisions in Hong Kong laws, which criminalise homosexual practices in private, between consenting adults. In August 2005, the High Court of Fiji invalidated similar laws. It is worth recalling that Justice Michael Kirby, one of the most distinguished serving judges of the High Court of Australia, and Justice Edwin Cameron, a great anti-apartheid activist and now a serving Judge of the Supreme Court of Appeal in South Africa, have publicly acknowledged their gay status for many years.
In 1986, the United States Supreme Court upheld, by 5 against 4, a Georgia statute criminalising homosexual behaviour in private, between consenting males. However, in 2003, the earlier majority judgment was overruled and the minority judgment approved, by a majority of 6 against 3, while invalidating a Texas statute and quashing the convictions based on it. The earlier minority judgment, which was reinstated, had observed that "a state can no more punish private behaviour because of religious intolerance than it can punish such behaviour because of racial animus" and "only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central in family life, community welfare and the development of human personality."
Justice Clarence Thomas, while dissenting and upholding the Texas law, made this significant observation: "I write separately to note that the law before the Court today is uncommonly silly" and "if I were a member of the Texas legislature I would vote to repeal it." Earlier, in 1995, the U.S. Supreme Court (6 against 3), invalidated an amendment to the Constitution of Colorado, adopted in a referendum, on the ground that it violated the equal protection clause. The amendment sought to repeal various local laws that banned discrimination in many activities like housing, employment, and education, on the basis of sexual orientation and protected gays or lesbians against discrimination.
India must march in step with other democracies on this human rights issue. It must emulate the sentiment of the European Court that such restrictions on the most intimate aspect of private life are not necessary in a democratic society that values tolerance and broadmindedness. It is high time the Indian Parliament brought our Penal Code in line with these international legal standards on human rights, which are applied in Europe, the U.S., Canada, South Africa, Australia, New Zealand, Hong Kong, and Fiji. This reform is urgent because Section 377 poses a threat to public health by impeding programmes for the prevention and control of HIV/AIDS. Should not our Parliament adopt the view of the ultra-conservative Justice Clarence Thomas of the U.S. Supreme Court, who, while upholding the Texas law in his dissent, characterised it as uncommonly silly and observed that he would vote to repeal it, if he were a legislator?
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