a

HOMOSEXUALITY AND CRIMINALIZATION – A CASE

FOR THE DECRIMINALIZATION OF HOMOSEXUAL

INTERCOURSE

BY

ANIL DE SANTANA RODRIGUES

DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENT FOR THE AWARD OF THE DEGREE OF MASTER

OF LAWS (L.L.M)

DR. M.R.K.PRASAD

RESEARCH GUIDE

DEPARTMENT OF LAW

V.M.SALGAOCAR COLLEGE OF LAW

GOA UNIVERSITY

TALEIGAO PLATEAU-GOA

2011-2012

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DECLARATION

I hereby declare that the Dissertation, entitled “HOMOSEXUALITY AND

CRIMINALIZATION – A CASE FOR THE DECRIMINALIZATION OF

HOMOSEXUAL INTERCOURSE” has been written by me and that it has not formed

the basis for award of any Degree, Diploma, Associateship, fellowship or other similar

title.

(ANIL DE SANTANA RODRIGUES)

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CERTIFICATE

TO WHOM IT MAY CONCERN

This is to certify that Mr. Anil De Santana Rodrigues is a bonafide student of L.L.M

Programme of the Goa University, conducted by V.M. Salgaocar College of Law,

Miramar, Panaji-Goa, during the Academic periods 2010-2011 and 2011-2012.

This Dissertation entitled “HOMOSEXUALITY AND CRIMINALIZATION – A

CASE FOR THE DECRIMINALIZATION OF HOMOSEXUAL INTERCOURSE” is

a bonafide work of the above mentioned student carried out by him as a part of the

requirement for the award of the Degree of MASTER OF LAWS of Goa University.

Dr. M.Pinheiro

Principal V.M. Salgaocar College of Law

d

CERTIFICATE

This is to certify that this Dissertation entitled “HOMOSEXUALITY AND

CRIMINALIZATION – A CASE FOR THE DECRIMINALIZATION OF

HOMOSEXUAL INTERCOURSE” is a bonafide work done by Mr. Anil De Santana

Rodrigues during the Academic Period 2011-2012 under my guidance and constant

supervision as part fulfilment of the requirement for the award of the Degree of Master

of Laws. This Dissertation did not previously form the basis for award to the candidate

of any Degree, Diploma, and Associateship, Fellowship or other similar title.

Dr. M.R.K. Prasad

(Research Guide and Supervisor)

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ACKNOWLEDGEMENTS

I express deep gratitude to my Professor and Guide Dr. M.R.K. Prasad for his persistent

encouragement and erudite guidance. I also place on record my sincere appreciation of

the Professor for making himself available on short notice and at all odd times to sort

out my intermittent queries and consolidate my thought processes during this project,

which has finally reached its successful completion.

I am also extremely indebted to my Principal Dr. M. Pinheiro, who imparted his vast

experience and wisdom to me during both the formal academic sessions and informal

chats and for also having the conviction that I would take up the controversial topic on

homosexuality and see it to its final conclusion.

I am also grateful to the faculty and staff of V.M. Salgaocar College of law, lawyers,

Judiciary, the police, my colleagues and friends who have shared their experiences and

knowledge with me during the course of this study.

I take this opportunity to also thank my family, especially my wife Sanchita and son

Jatan who are both firm supporters of my sudden interest in the pursuit of higher

education at a relatively late age and who are the sounding boards for my propositions

and theories.

I hope that this dissertation will be read by many and improved upon, so that new

rational ideas and concepts will evolve which can benefit mankind in this fragile world,

till such time the great Sun stops shining for us.

Anil De Santana Rodrigues

f

ABBREVIATIONS

ACP = Assistant Commissioner of Police

AIDS = Acquired Immune Deficiency Syndrome

CID = Criminal Investigation Department

CJM = Chief Judicial Magistrate

GLBT = Gay, Lesbian, Bisexual, Transgender

HDI = Human Development Index

HIV = Human Immunodeficiency Virus

ICCPR = International Covenant on Civil and Political Rights

IPC = Indian Penal Code 1860

MSM = Men who have sex with men

MSW = Male Sex Workers

NACO = National Aids Control Organization

NGO = Non Governmental Organization

OCCUR = Japan Association for the Lesbian and Gay Movement

RTI = Right to Information Act 2005

SDF = Self Defence Force

UN = United Nations

USA = United States of America

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LIST OF CASES

Bowers v. Hardwick - Cit. 478 U.S. 186 (1986)

Calvin Francis v. State of Orissa – Cit. 1992 (2) Crimes 455 (Ori)

Campbell v. Sundquist – Cit. 926 S.W.2d 250 (1996)

Commonwealth v. Bonadio – Cit. 415 A.2d 47 (Pa. 1980)

Commonwealth v. Wasson – Cit. 842 S.W.2d 487 (Ky. 1992)

Corbiere v. Canada (Minister of Indian and Northern Affairs) – Cit. [1999] 2 S.C.R.203

Doe v. Ventura – Cit. no. MC 01-489, 2001 WL 543734

GLAD v. Attorney General – Cit. SJC-08539

Gryczan v. Montana – Cit. 942 P.2d 112 (1997)

Jagjir Singh v. State – Cit. 1969 PLR 34 (SN)

Jegley v. Picado - Cit. 80 S.W.3d 332 (Ark. 2001)

Khanu v. Emperor – Cit. AIR 1932 Cal 487

Lawrence v. Texas - Cit. 539 U.S. 558 (2003)

Lohana Vasantlal Devchand v. The State – Cit. 1968 Cr LJ 1277

National Coalition for Gay and Lesbian Equality v. The Minister of Justice, SA – Cit. (CCT11/98)

[1998] ZACC 15

Naz Foundation v. Government of NCT of Delhi - Cit. 2009 (160) DLT 277

Nowshiriwan Irani v. Emperor - Cit. AIR 1934 Sind: 37 CrLJ 728

Organization for Human Rights v. Kelley – Cit. No. 88-815820 Cz Slip op. (MI 1990)

People v. Onofre – Cit. 415 N.E.2d 936 (N.Y. 1980)

Powell v. Georgia - Cit. 510 S.E.2d 18 (1998)

State Govt. of NCT of Delhi v. Sunil – Cit. 2001 Cri.L.J 504

Toonen v. Australia – Cit. No. 488/1992, U.N. Doc PR/C/50/D/488/1992 (1994)

Williams v. State – Cit. 1998 Extra LEXIS 260

h

CONTENTS

Chapter Topic Pages

1 INTRODUCTION

1 – Overview

1.1 – Need for Study

1.2 – Objective of Study

1.3 – Hypothesis

1.4 – Methodology

1.5 – Limitation of Study

1.6 – Scheme of Study

1 – 8

2 RELIGION AND HOMOSEXUALITY

2 – Sexual Reproduction and Sexual Intercourse

2.1 – Historical Perspective – The Monotheistic (Abrahamic) Religions of Judaism, Christianity and Islam

2.2 – Judaism and Homosexuality

2.3 – The Old Testament and Homosexuality

2.4 – The New Testament and Homosexuality

2.5 – The Catholic Church and Homosexuality

2.6 – Islam and Homosexuality

2.7 – Hinduism and its Derivatives Jainism and Buddhism

2.8 – Hindu Texts and homosexuality

2.9 – Jainism and Homosexuality

2.10 – Buddhism and Homosexuality

9 – 29

i

2.11 – Observations on Chapter 2

3 SCIENCE AND HOMOSEXUALITY

3 – Is homosexuality Genetic or an Individual Choice

3.1 – Psycho-Sociological Theories of Homosexuality

3.2 – Ancient Theory

3.3 – Freudian Theory of Homosexuality

3.4 – Parental Manipulation and Kin Selection Theory

3.5 – Planophysical Theory

3.6 – Michel Foucault and the Social Sexuality Theory

3.7 – Alfred Kinsey’s Research

3.8 – Homosexuality and Pathology

3.9 – Biology, Genetics and Homosexuality

3.10 – Havelock Ellis’ Research

3.11 – The Twin Studies

3.12 – The Gene Studies

3.13 – The Hypothalamus and Homosexuality

3.14 – Animal Homosexuality and Natural Diversity

3.15 – Observations on Chapter 3

30 – 51

4 LAW AND HOMOSEXUALITY

4 – International Perspective – Human Rights and GLBT’s

4.1 – International Laws on Homosexuality

4.2 – Norway

4.3 – Sweden

4.4 – Australia

52 – 104

j

4.5 – United States of America

4.6 – Japan

4.7 – Indian Perspective – Constitution of India

4.8 – Indian Perspective – Criminal Laws

4.9 – The Beginning of the Decriminalization of Homosexuality

4.10 – Observations on Chapter 4

5 EMPIRICAL INVESTIGATION ON HOMOSEXUALITY

5 – Information furnished by Goa Police on Section 377

5.1 – Questionnaire

5.2 – Interviews and Investigation

5.3 – Observations on Chapter 5

105 – 119

6 CONCLUSION

6 - Religion and Homosexuality

6.1 – Science and Homosexuality

6.2 – Law and Homosexuality

6.3 – Empirical Data on Homosexuality

6.4 – Final Observations and Suggestions

120 – 132

BIBLIOGRAPHY AND REFERENCES 133 – 139

APPENDIX (Annexure A) -

1

Chapter 1 – INTRODUCTION

1 Overview

The entire history of social improvement has been a series of transitions, by which one

custom or institution after another, from being a supposed primary necessity of social

existence, has passed into the ranks of a universally stigmatized injustice and tyranny1.

Sexual intercourse even today is considered to be a taboo subject linked to wrong and

homosexual intercourse is regarded as anathema and a sin. Sex and sexual intercourse is

looked at upon as an act meant for procreation and not as a pleasurable and necessary

activity fuelled by hormones. This orthodox view has been inherited by humankind

from age old beliefs which have their roots embedded in religion. Traditionally it is the

case of religion that sexual intercourse outside the function of procreation is perverse

and as such an individual’s sexual orientation or preference has no place in the religious

texts. Even in modern society when a case is made for legitimacy of same-sex love,

critics rush in from all quarters with three defences, i.e. it is contrary to nature, it is

condemned by scripture and that its acceptance would ruin the foundation of society.

That man and woman, man and man or woman and woman have sexual intercourse on

account of biological, sociological and psychological needs is not an acceptable

proposition to most people. The notion that homosexual behaviour is a wrong has been

largely absorbed by people from religious teachings and texts which have resulted in

labelling homosexual intercourse as a criminal offence. It is of interest to note that way

back in the last century Sigmund Freud said that it is a great injustice to persecute

homosexuality as a crime2.

1 John Stuart Mill, Utilitarianism, Chapter V 2 Sigmund Freud, Letter to an unnamed mother dated 9th April, 1935

2

To begin let us start with what is homosexuality. The term ‘Homosexuality’ was coined

in the late 19th century by the German psychologist, Karoly Maria Benkert3. The

Merriam Webster dictionary defines homosexuality as that relating to, or characterized

by a tendency to direct sexual desire towards another of the same sex or involving

sexual intercourse between persons of the same sex.

Today in the age of the Hubble space telescope and the internet we need to ask the

following valid questions. Is homosexuality a crime? Is an individual’s sexual

orientation or preference reason enough for calling the individual a criminal? Does

genuine affection between two consenting humans of the same sex have to be treated as

a crime? Is a consensual act sans mens rea to be treated as a crime? How have our

criminal laws incorporated homosexual intercourse as a crime? Is a 140 years old

legislation which has been thrust upon us by a colonial ruler prohibiting “unnatural”

sexual acts valid today?

India today is progressing in leaps and bounds and there is a growing influence of

modern western culture on our thought processes which has resulted in our pseudo-

occidental lifestyle. This new Indian lifestyle ably helped by the main stream media has

brought the subject of homosexuality out of the closet and made it part and parcel of the

average Indian. In this scenario we as free Indians in a sovereign country need to test

the logic whether consensual sex outside of a heterosexual relationship is right or

wrong. Thus it is important to critically understand homosexuality from the religious

point of view vis-a-vis the scientific point of view, so that homosexuals who are also

part of the human race are not ostracized and treated as criminals and can live a normal

and healthy life like any other citizen.

3 Stanford Encyclopedia of philosophy

3

Indian society’s views and understanding of homosexuality is very limited as it

approaches the subject of sexuality with extreme trepidation and embarrassment, thus

resulting in adopting a rigid stand that Gays, Lesbians, Bisexuals and Transgender

people are unnatural and abhorrent and their requirement for sexual intercourse is to be

condemned as immoral and criminal. Modern day rights available to same-sex couples

such as to marry and adopt children and to protest against discrimination at the

workplace is yet to be recognised as a human right in our Country. It is a matter of

concern that in today’s liberal and human rights oriented world, where even mass

murderers and terrorists are given an opportunity to disprove their evil intent, the

homosexual who abides by the law, just like any other citizen is still not recognized as a

normal human being and allowed to live a life free from persecution because of his or

her sexual orientation. This is a reality, especially for a country where more than ten per

cent of the population comprises of Gays, Lesbians, Bisexuals and Transsexuals.

Thus there is a need in this age of liberal outlooks and designer fashions that the

homosexual community which thinks, eats, works, cries, loves, lives and dies like any

other heterosexual human but “makes love” differently be looked at from a different and

more scientific perspective. Thus it is time to seriously ponder on the issue of

homosexuality and homosexual intercourse as a crime in the best interests of society

and the nation.

1.1 Need for Study

With the changing trends in society and new research in the various branches of science,

it is of great importance that the issue of homosexuality and homosexual intercourse is

studied in a more objective manner by delineating the religious context of homosexual

behaviour as something sinful from the more liberal human rights standpoint which

4

regard the homosexual as a human being who also has his or her right to enjoy sex

consensually in his or her preferred way.

To label consensual homosexual intercourse as a criminal activity subject to punishment

as stated in section 377 of the Indian Penal Code4, is unfair, unjust and against all norms

of civilized behaviour and progressive law. Laws are to be made for good governance

and not to incorporate concepts of morality of a bygone age. The government has the

power to crack down on criminals, but it should not lead to a situation where if there are

not enough criminals, one makes them and one declares so many things to be a crime

that it becomes impossible for men to live without breaking laws5. The sexual

orientation and behaviour of an individual who otherwise is a law abiding citizen is

nothing but a prejudice inbuilt in our society because of religious intolerance bred by an

age old criminal jurisprudence.

With India on the threshold of gaining world superpower status, it is time for the people

and the Government to recognise homosexuality as another facet of the species Homo

sapiens and not as a criminal activity.

It is necessary to study the impact of religious texts on the issue of homosexuality as a

moral wrong and as a crime vis-à-vis modern knowledge supported by scientific

research on homosexual behaviour. This study on homosexuality is aimed to benefit the

homosexual community and pave a way for their assimilation into the mainstream of

society by shaking off the criminal label thrust upon them and also to ensure that

homosexuality and consensual homosexual intercourse are decriminalized.

4Whoever 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 term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section 5 Ayn Rand, Atlas Shrugge

5

1.2 Objective of Study

The primary objective of this study is to document whether the changing trends in

modern society coupled with scientific studies in biology, psychology, sociology and

genetics have made an impact on the thought processes of the current generation thus

bringing in the realisation that religion and the objectives of science and law are

different and that morality is not the combined sum of what is mentioned in the

scriptures but what an individual thinks of another human in a society which is always

in a flux.

The secondary objective of this study is Goa being cosmopolitan in its composition with

a high number of the educated class amongst its residents who are exposed to foreign

cultures on account of its rule by the Portuguese and its booming tourism industry, it

would be worthwhile to understand and map the perceptions of the Goan people with

respect to homosexuality, homosexual intercourse and decriminalising consensual

homosexual intercourse.

1.3 Hypothesis

Historically criminalization of homosexual intercourse is attributable to the texts of the

Abrahamic6 religions, however with a better scientific, psychological and sociological

understanding of homosexual behaviour it is no longer looked upon as a criminal

offence. Thus section 377 of the Indian Penal Code which criminalizes homosexual

intercourse needs to be amended to exclude consensual homosexual intercourse as a

criminal offence.

1.4 Methodology

6 Judaism, Christianity and Islam

6

This study is based on readings from subjects such as religion, science, medicine,

genetics, philosophy, history, psychiatry, criminology, law and literature and the main

source for the reference material was the internet and its highly informative websites

there being a dearth of printed material on the subject available in Goa.

In addition to the material from the internet an empirical study was done based on data

furnished under the Right to Information Act and also data obtained from questionnaires

furnished to and interviews conducted with select people residing in Goa.

The questionnaire was prepared with the aim of mapping the thought process of Goan

residents on the subject of the historical religious bias against homosexuality and their

perception of homosexual intercourse as a crime. The questionnaire has been circulated

to all age groups with a focus on the relatively younger generation.

The interviews have been informal and have been conducted with government and

police officials, lawyers, academics, judicial authorities and members of the general

public who have been selected at random.

1.5 Limitation of the Study

The empirical study is limited to the data available with regard to homosexual offences

in the state of Goa. So also the data collected from the questionnaires furnished and

interviews conducted pertains to the local population.

1.6 Scheme of the Study

Chapter 1 is a brief overview on the concept of homosexuality and why it is perceived

as a crime in society today, especially as we live in a human rights enabled world which

focuses on treating all communities as humans rather than applying defunct and

7

irrational laws to certain groups of people. The objective of the study is to find the

impact of religion on the issue of criminalization of homosexual intercourse and

whether this criminal law is valid today in the Indian context. It also states the

hypothesis formulated, the methodology followed and the limitations of the study along

with a synopsis of the scheme of the study.

Chapter 2 primarily focuses on the aspect of how different religions deal with the

subject of homosexuality in their sacred texts and doctrines. The chapter looks at two

schools of religious thought; (1) the Abrahamic religions of Judaism, Christianity and

Islam which have had a profound influence on the western world and the Middle East

and have made inroads into the east through colonial rule. (2) Hinduism and its

derivative branches of Buddhism and Jainism which are the main religious doctrines

practiced in India and the Far East.

Chapter 3 focuses on Homosexuality and modern scientific research and knowledge

which empirically states how homosexuality, homosexual behaviour and homosexual

intercourse are looked at from the scientific viewpoint. The coverage is based on the

scientific fields of biology, psychology, sociology and genetics. Also modern concepts

of social construction of homosexuality are covered.

Chapter 4 covers the Law vis-à-vis Homosexuality. The law is split up into three parts;

(1) from the Human rights perspective (2) Foreign laws of selected foreign countries;

which are first world countries who have surpassed themselves in good governance. (3)

Indian law and homosexuality as a criminal offence. As there is not much data available

on homosexual intercourse as a crime in India the topic will cover the concept of

homosexuality from the constitutional angle and focus on the recent Naz Foundation v.

Government of NCT of Delhi case.

8

Chapter 5 is the empirical investigation with a select sample and how it views the law

and homosexuality in general as existing in India. The factual data obtained under RTI

from the Police authorities will focus on the quantum of crimes related to section 377 of

the IPC which have been reported, booked and investigated for the past ten years in

Goa. Various empirical data which has been collected by way of a questionnaire is

collated to bring out how the sample understands the relationship between

homosexuality, religion, science and crime. The interviews conducted have been

informal and open so as to a real understanding of homosexual behaviour and how it is

viewed.

Chapter 6 is the conclusion based on the research done and the data collected as well as

a personal insight of the author on homosexuality and homosexual intercourse as a

crime.

9

Chapter 2 – RELIGION AND HOMOSEXUALITY

This section of the study will focus on influence of religious texts on the subject of

right, wrong, morality and homosexuality. The topic will emphasize the relevant

portions of various Abrahamic religious texts which portray homosexual intercourse as

wrong. It will also focus on how Hinduism and its derivative religions deal with the

topic of homosexuality since ancient times. The study for better comparative analysis is

split into two distinct categories; (1) Abrahamic religions (2) Hinduism and its

derivative religions.

2 Sexual Reproduction and Sexual Intercourse

There are also third-sexed citizens, sometimes greatly attached to each other and with

complete faith in one another, who get married together7. In this context it is important

to understand the difference between sexual reproduction and sexual intercourse before

exploring the topic of religion, its sacred texts and the role and reasoning of religion on

the subject of homosexuality.

Sexual reproduction is a mode of reproduction involving the fusion of female gamete

(ovum) and male gamete (spermatozoon), which forms a zygote8 that develops into

genetically distinct offspring. It usually entails processes such as meiosis9 and

fertilization. Meiosis is an important process to generate gametes that are haploid10 and

genetically different so that during fertilization, the newly formed zygote will contain

7 Vatsayana, The Kamasutra 8 the cell resulting from the union of an ovum and a spermatozoon 9 The process of cell division in sexually reproducing organisms that reduces the number of chromosomes in reproductive cells from diploid to haploid, leading to the production of gametes in animals and spores in plants 10 A cell or an organism having half of the number of chromosomes in somatic cells

10

the original number of chromosomes but with a genome that is different from either

parent11.

In contrast to sexual reproduction, sexual intercourse or coitus in a strict biological

sense refers to the insertion of the male penis into the female vagina for the purpose of

reproduction and it is prevalent among all mammalian species. Traditionally sexual

intercourse is viewed as the natural endpoint of sexual contact between man and

woman, but with the complexity of today’s society and the ever changing roles of the

male and female of our species the meaning of the term has been broadened in recent

years to include a wider range of behaviours and a wider set of motivations and

intentions. In both popular and professional usage, intercourse now labels at least three

different sex acts, two of which are not directly linked to conceiving a child. These three

types of intercourse are; vaginal intercourse, involving vaginal penetration by the penis,

oral intercourse, involving oral caress of the sex organs (male or female), and anal

intercourse, involving insertion of the male penis into his partner's anus. Intercourse and

relationships are no longer limited to partnerships between individuals of opposite

genders but also same-sex or homosexual encounters. So also sexual intercourse is not

limited to peno-vaginal intercourse but includes oral sex, anal penetration, digital sex

(use of fingers or hands) and mutual masturbation as forms of sexual intercourse.

Thus it can be stated that there exists a substantial difference between the natures of

sexual reproduction as compared with sexual intercourse. Where reproduction is

common to almost all the species intercourse is definitely more prevalent amongst the

mammalian species and in fact sex researchers and therapists have come to recognize

that humans engage in sexual intercourse for many reasons beyond procreation. Sexual

intercourse is among the most intimate behaviours possible between two people, and, 11 http://www.biology-online.org/dictionary/Sexual_reproduction

11

for many people, it is also one of the most pleasurable and emotionally satisfying

experiences. The endpoint of sexual intercourse is experiencing an orgasm for one or

both partners, which is a complex chemical reaction which induces a significant sense

of well-being both physical and emotional.

Thus in the big thought divide between sexual reproduction vis-à-vis sexual intercourse,

where does mankind get its notion that homosexual intercourse is unnatural, immoral,

wrong, and a crime? To understand what is “unnatural” and “immoral” in homosexual

behaviour it is necessary to enter the realm of religion its doctrines and texts.

2.1 Historical Perspective - The Monotheistic12 (Abrahamic) Religions of

Judaism, Christianity and Islam

Religion historically has been the fountainhead of morals and what constitutes morality.

It is religious texts which decide and judge what is perceived as good, bad, right or

wrong. Religion is a philosophy which though to some extent has guided man in his

search for meaning to his existence has never been tolerant towards many areas of

human behaviour. Amongst the followers of the monotheistic or Abrahamic religions

perceptions of right and wrong has been nurtured by religious doctrine. The religious

texts which have been inherited by us from millennia are nothing but the writings of a

primitive people who in order to understand their existence in a chaotic and hostile

world looked up to the cosmos to unravel the futile predicament of life and death. As

time passed by ideas of good and bad filtered into the religious texts, and over the

centuries certain kinds of behaviour in mankind which could not be understood in a

clear cut way because of lack of scientific research was labelled as bad and against the

12 Belief in a single entity as the almighty God

12

laws of God. This resulted in the era of religious intolerance which is our legacy even

today.

Human behaviour and what makes some humans different from others has never been

the key focus area of religion. The monotheistic religions never relied on science,

psychology, sociology or idea of plain love and affection towards a fellow creature as

the basis of their rules of “do’s” and “don’ts”. Blind faith, limited knowledge, a narrow

outlook and intolerance of other races and modes of living have always been the fuel of

religion. The narrow thought processes of the ancients have percolated into the thinking

system of the modern age which has caused many biases due to the dictates of religion

and religious texts written thousands of yours ago. Mankind influenced by monotheistic

religions texts has inherited the concepts of right, wrong, morals and law and as such

the subject of homosexuality and homosexual intercourse labelled as a criminal activity

is the end result of certain references in these texts.

2.2 Judaism and Homosexuality

Traditionally Judaism like most old religions was concerned with increasing the number

of its tribes and the population of its people. It was of paramount importance to the

close communities of the past to focus on increasing their population in order to gain

advantage in the struggle for survival especially when pitted against other foreign races

and tribes. To have a large population was the quintessence of the old communities and

many laws and rules were made to encourage this end. The dictum of “increasing the

number of the people of the tribe” was disseminated in the form of religious texts which

were used to govern the primitive people and as such the Jewish scriptures i.e. Torah

and Talmud incorporated over generations certain ideals of right and wrong in

13

furtherance of this objective. One of the ‘wrongs’ disseminated by Judaism was

homosexuality and homosexual intercourse.

The ancient Jewish religion based its ideology on certain traditions and notions, which

if they were not in conformity and in conjunction with nature was perceived as wrong.

This led to certain rules and laws being made in the form of mandatory religious

dictates which are observed even today. Thus in this orthodox scenario the religious

texts of the Jews sowed the first seeds of intolerance towards homosexuality by treating

homosexual behaviour as wrong and immoral.

To critically appreciate how homosexuality was viewed by the Judaic religion it is

necessary to transcribe excerpts from the scriptures of the Jewish faith.

Excerpts from the Torah13 and the Talmud14

“Thou shalt not lie with mankind as with womankind; it is abomination15.”

“If a man also lie with mankind as he lieth with a woman, both of them have committed

an abomination. They shall surely be put to death: their blood shall be upon them16.”

“God did not create the earth to be empty, but formed it to be inhabited.17”

“At the root of the percept lies the reason that the Eternal Lord blessed is He, desires

the settlement of the world He created. Therefore, He commanded us that human seed

should not be destroyed by carnal relations with males. For this is indeed destruction,

13 The first five books of the Hebrew Scriptures 14 The collection of ancient Rabbinic writings consisting of the Mishnah and the Gemara, constituting the basis of religious authority in Orthodox Judaism 15 Leviticus 18:22 16 Levicticus 20:13 17 Isaiah 45:18

14

since there can be no fruitful benefit of offspring from it, nor fulfilment of the religious

duty of conjugal right.18”

“An unmarried man must not tend cattle, nor may two unmarried men sleep together

under the same cover.19”

“And in these generations when licentiousness is prevalent, two men a man should not

be alone with another man.20”

If an analysis is made of the above excerpts it can be inferred that numerous references

to homosexual intercourse as wrong vis-à-vis sex for procreation as right are the dictates

of God through his prophets. The religious texts of Judaism focused on homosexuality

as wrong for the simple reason that homosexual activity would hamper procreation,

which would in course of time weaken the Jewish community and consequently result

in weakening the Jewish people and exposing them to hostile attacks from other

powerful and aggressive peoples, which would lead to the extinction of the Jewish race.

At this juncture it is pertinent to mention that even a few millennia ago, man’s instinct

for survival was governed by Charles Darwin’s principle of the survival of the fittest.

2.3 The Old Testament and Homosexuality

The Old Testament of the Christian Holy Bible is mostly derived from the Torah and as

such there is not much difference in this text on the subject of homosexuality. The Story

of Sodom, Gomorrah and Lot21 in the Old Testament once again show the reasoning of

the primitive people on the subject of homosexuality. It is of interest to note that in the

story of Sodom and Gomorrah Lot’s act of offering his virgin daughters for sexual 18 Chinuch Mitzvah, 209 19 Kiddushin 82A 20 Shulchan Aruch, Even Ha-Ezer 24:1 21 In the Bible, Abraham's nephew, whose wife was turned into a pillar of salt when she looked back as they fled Sodom

15

intercourse is considered preferable to homosexual intercourse. A brief excerpt of the

story is transcribed here.

“Two angels in disguise visit the city of Sodom and are offered hospitality and shelter

by Lot. During the night, the men of Sodom demand that Lot hand over his guests for

homosexual intercourse, Lot refuses and even offers his two virgin daughters in place of

his guests, but the men of Sodom reject the offer, preferring homosexual sex over

heterosexual sex. Finally Lot refuses, and the angels blind the men of Sodom and

consequently Lot and his household escape and the city is destroyed by fire because the

outcry against its people had become great before the Lord.22”

Thus throughout the history both Jewish and Christian scholars have recognized that

one of the main sins involved in God’s destruction of Sodom was the homosexual

behaviour of it people and the Sodomites who were singled out for special criticism by

God. This led to the branding of homosexuals as criminals.

2.4 The New Testament and Homosexuality

The New Testament of the Holy Bible also derives most of its religious material from

the Old Testament except that Jesus Christ a Jew by birth broke free from the

oppressive and orthodox Jewish faith which consequently resulted in a new religion

called Christianity. The New Testament though having diluted many of the draconian

and orthodox requirements of the Jewish faith did not eradicate the Jewish thought

processes and as such homosexuality continued to be referred to in the text as wrong.

Just like Judaism the Christian religion born two millennia ago had on its agenda the

pressing need for more people to follow the new Christian faith and the only acceptable

avenue available to them similar to Judaism was to focus on sexual activity for the 22 Genesis 19:8-9 & 13

16

purpose of procreation. The idea that common people participated in sexual intercourse

for pleasure was not envisaged by the Christian texts and feelings of love and affection

linked to behavioural patterns were not understood, hence what was perceived as ‘not

natural’ was considered wrong and homosexual intercourse was believed to be an

activity not in conformity with the laws of nature and labelled as sinful and abhorrent.

St. Paul’s condemnations of homosexuals are legend in the otherwise more liberal and

progressive New Testament and in this context Jesus’ preaching of “love thy

neighbour” and “judge not others lest you be judged yourself” still remain dead letters.

Excerpts from St. Paul’s writing

“For this reason God gave them up to dishonourable passions. Their women exchanged

natural relations for unnatural, and the men likewise gave up natural relations with

women and were consumed with passion for one another, men committing shameless

acts with men and receiving in their own persons the due penalty for their error. And

since they did not see fit to acknowledge God, God gave them up to a base mind and to

improper conduct. . . . Though they know God’s decree that those who do such things

deserve to die, they not only do them but approve those who practice them.23”

“Do you not know that the wicked will not inherit the kingdom of God? Do not be

deceived: Neither the sexually immoral nor idolaters nor adulterers nor male

prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor

slanderers nor swindlers will inherit the kingdom of God.24”

2.5 The Catholic Church and Homosexuality

23 Romans 1:26-28,32 24 Corinthians 6:9-10, NIV

17

Europe prior to Christianity was comprised of people of different races who were

Pantheistic (or commonly referred to as Pagan) in their faith who believed in a plethora

of Gods and Goddesses and who had elaborate rituals and ceremonies sponsored by the

Emperors of Rome. When Christianity reached Europe there was persecution of the

Christian people by the Pagans and a struggle for survival was on. Finally a pact was

made by the Romans and Christians during the regime of Emperor Constantine to

follow Christianity and continue the grand ceremonies and rituals of the pagans. This

fusion of Christianity and Paganism resulted into the formation of the Roman Catholic

Church. The references to homosexuality in the volumes of dogmas and doctrines of the

Roman Catholic Church are the legacy of the Christian faith which has its roots in

Judaism.

An excerpt from the book of Catechism of The Roman Catholic Church

“Basing itself on sacred Scripture, which presents homosexual acts as acts of grave

depravity, tradition has always declared that homosexual acts are intrinsically

disordered. They are contrary to the natural law. They close the sexual act to the gift of

life. They do not proceed from a genuine affective and sexual complementarity. Under

no circumstances can they be approved.25”

The Church acknowledges that the psychological genesis of homosexuality remains

unexplained and that men and women who have deep-seated homosexual tendencies

cannot be ignored. The Church believes that this homosexual inclination of certain men

and women constitutes a trial for this select community and that homosexuals must be

accepted with respect, compassion, and sensitivity and that every sign of unjust

discrimination in their regard should be avoided. Thus the Church issued directives

25 Catechism of the Catholic Church 2357

18

stating that the sin of homosexuality can be overcome by adhering to Christian methods

of approaching salvation. It is interesting to note that even in this liberal outlook of the

Church, homosexuality is looked at from the angle of something sinful which requires

Christian help for salvation of the soul.

An excerpt from the book of Catechism

“Homosexual persons are called to chastity. By the virtues of self-mastery that teach

them inner freedom, at times by the support of disinterested friendship, by prayer and

sacramental grace, they can and should gradually and resolutely approach Christian

perfection.26”

It is pertinent to note here that the change in the perception of homosexuality by the

Catholic Church can only be attributed to the central thought of all the Abrahamic

religions which is to ultimately have more soldiers for God. Thus the Church in its

wisdom probably realised that homosexual or not, the most important aspect of religious

politics deems that they follow the Catholic faith and ostracizing the homosexual people

would be detrimental to the interests of the Church and its agenda for world dominion.

2.6 Islam and Homosexuality

The most recent of the Monotheistic religions is Islam which was founded by the

prophet Mohammed in the 7th century of the Common Era. Islam too derives a lot of its

theological and philosophical maxims from Judaism and Christianity and as such the

Koran is replete with references of intolerance towards homosexual intercourse.

Excerpts from the religious texts of the Qur’an and Hadith27 are transcribed here.

26 Catechism of the Catholic Church 2357-2359 27 A report of the sayings or actions of Muhammad or his companions, together with the tradition of its chain of transmission

19

“Of all the creatures in the world, will ye approach males, and leave those whom Allah

has created for you to be your mates? Nay, ye are a people transgressing all limits.28”

“Would ye really approach men in your lusts rather than women? Nay, ye are a people

grossly ignorant.29”

“And remember Lut (Lot): behold, he said to his people: "Ye do commit lewdness, such

as no people in Creation ever committed before you. Do ye indeed approach men, and

cut off the highway? - and practise wickedness even in your councils?" But his people

gave no answer but this: they said: "Bring us the Wrath of God if thou tellest the

truth.30”

The Hadith has references to homosexuality as transcribed.

“The Prophet said: A man should not look at the private parts of another man, and a

woman should not look at the private parts of another woman. A man should not lie

with another man without wearing lower garment under one cover; and a woman

should not be lying with another woman without wearing lower garment under one

cover.31”

“The Prophet said: A man should not lie with another man and a woman should not lie

with another woman without covering their private parts except a child or a father.32”

It is worthwhile to mention here that till today it is not clear whether the Qur’an allows

the husband the right to have anal intercourse with his wife. The Ulema33 have

28 Qur’an, verses 026.165-166 29 Qur’an, verses 027.055 30 Qur’an, verses 029.028-29 31 Abu Sa’id al-Khudri narration 32 Abu Hurayrah narration 33 Muslim scholars trained in Islam and Islamic law

20

contrasting interpretations of a particular verse transcribed here for the reader’s perusal

and judgment.

“Your wives are as a tilth34 unto you; so approach your tilth when or how ye will. But

do some good act for your souls beforehand; and fear Allah and know that ye are to

meet Him in the Hereafter and give these good tidings to those who believe.35”

So like the other monotheistic religions which evolved from Judaism, Islam also

censures and condemns homosexual intercourse between same sexes, but even having

said this the question of anal sex with women is a hotly debated topic, which goes to

show the pleasure principle is always male-centric in some faiths.

2.7 Hinduism and its Derivatives Jainism and Buddhism

In contrast to the monotheistic religions the majority of the people in the Indian sub-

continent follow Hinduism. It has to be mentioned here that Hinduism and its age old

concepts linked to mythology and nature cannot be treated per se as religion in the very

technical sense, but as more of a documentation of cultural and ritualistic norms of a

very advanced and complex society. So also the offshoot religions of Hinduism, i.e.

Jainism and Buddhism have no ‘God’ concept and are atheistic in their very nature with

a philosophy focused on the self and with pain and reward being two sides of the same

coin and are the result of man’s actions. These religions have a high tolerance level for

all that nature produces and as such their outlook towards sexuality is markedly

different from the Abrahamic religions.

2.8 Hindu Texts and Homosexuality

34 Arable land that is worked by ploughing and sowing and raising crops 35 Qur’an, verses 2:223

21

Hinduism is not considered as a religion per se but as a way of living. With millions of

Hindu Gods and Goddesses and the varied rituals and customs followed by the Hindu in

different geographical locations of the sub-continent, the concept of religion as

portrayed by the monotheistic religions of the middle eastern and the western

hemisphere does not find a place in Hinduism. Hindu religious philosophy is mainly

found in The Vedas and Puranas, the epics Mahabharata, Ramayana and the Manusmirti

all of which are considered sacred by the Hindu. In this context Hinduism is not

comparable with the dogmatic approach of the other religions and as such the references

to homosexuality are not about it being evil or wrong but only something irregular.

Hinduism right from the ancient past has accepted and tolerated homosexuality and

homosexual behavior. Thus it is necessary to critically analyze what the ancient Vedas

say about homosexuality. In Vedic society homosexuality was generally accepted and

its practice came under the label 'tritiya prakriti' or the third sex. It is interesting to note

that while in Western conception biological sex and sexual orientation are separate; the

Vedic conception puts these two together by their physical and behavioural

characteristics to judge one's psychophysical identity. Thus in Vedic scriptures, there is

pums-prakriti (men), striy-prakriti (women), and tritiya-prakriti which included the

napumsaka (homosexual men) and nastriya or svairini (lesbians). The present-day

hijras are a testament to the existence of the third sex in Vedic culture. Even many

deities have a male, female and third-sexed form, such as Vishnu, Mohini36 and

Vallabhavardhana37. The Vedas and Puranas do not refer explicitly to homosexuality,

but the people of the third gender ‘tritiya-prakriti’, who are not fully men or women, are

36 Mohini in Hindu mythology is the name of the only female avatar of the god Vishnu. She is portrayed as a femme fatale, an enchantress, who maddens lovers, sometimes leading them to their doom 37 Sri Vallabhavardhana is the hermaphrodite form of Lord Vishnu and Laksmi-devi combined

22

mentioned but not defined and are portrayed as effeminate men with no desire for

women.

The Mahabharata also treats homosexuality in a very tolerant manner and accepts

homosexuality as part and parcel of the world and the varied ways in which nature

functions. This is highlighted by two excerpts from the Mahabharata a précis of which

is transcribed below.

“Arjuna as the result of a curse he was compelled to honour takes a "vow of

eunuchism", that is, to live as the third sex for a year: "O lord of the Earth, I will

declare myself as one of the "neuter" sex. O monarch, it is, indeed difficult to hide the

marks of the bowstring on my arms. I will, however, cover both my cicatrized arms with

bangles. Wearing brilliant rings on my ears and conch-bangles on my wrists and

causing a braid to hang down from my head, I shall, O king, appear as one of the third

sex, Vrihannala38 by name.”

“Shikhandi39, is born female, but raised as a boy. Sihkandi's father, King Drupada, had

begged the god Mahadeva to give him a son, to which Mahadeva replied: "Thou shalt

have a child who will be a female and male. Desist, O king, it will not be otherwise."

When Sikhandi comes of age and marries, Sikhandi's wife soon comes to know that

Sikhandi was a woman like herself and refuses him. Finally fleeing from the unnamed

wife's enraged father, Sikhandi encounters a male Yaksha (nature spirit) in the forest,

and they agree to swap sexes.”

38 Vrihannala, was the name assumed by Arjuna, who was in disguise as a transgender (on account of a curse by Urvasi) 39 Shikhandi is a character in the Hindu epic, the Mahābhārata. He was originally born as a girl child named 'Shikhandini' to Drupada, the king of Panchala

23

So also the Krittivasa40 version of the Ramayana has references to homosexual union in

the narration where two queens conceive a child together. The précis of the story is

transcribed here.

“When the famous king of the Sun Dynasty, Maharaja Dilipa, died, the demigods

became concerned that he did not have a son to continue his line. Lord Shiva therefore

appeared before the king's two widowed queens and commanded them, "You two make

love together and by my blessings you will bear a beautiful son." The two wives, with

great affection for each other, executed Shiva's order until one of them conceived a

child.”

The Manusmirti which are the laws of Manu is the only Hindu sacred text which mildly

strictures homosexual intercourse but even so it is very tolerant towards homosexual

relationships as seen from the excerpts here.

“On the issue of two Brahmin men having sex:

A twice-born man who has intercourse with a male, or with a female in a cart drawn by

oxen, in water, or in the day-time, shall bathe, dressed in his clothes.

On the issue of lesbian sex:

If two kanya41 have sex, each must be fined two hundred (panas), pay the double of her

nuptial fee, and receive ten lashes with a rod.”

Throughout Hindu and Vedic texts there are many descriptions of saints, demigods and

even the Supreme Lord transcending gender norms and manifesting multiple

combinations of sex and gender. These include male, female, hermaphrodite, and other 40 The Bengali Ramayana was written by Krittivasa Ohja in the 15th century and was the first to be translated in a Indian language other than Sanskrit 41 Virgins

24

possibilities. In Hinduism, God is recognized as unlimited and untethered by any

gender restrictions. For the purpose of enjoying transcendental pastimes (lila), the

Supreme Lord manifests innumerable types of forms just like an actor on a stage.

As part and parcel of the Supreme Lord, the various living entities can also be seen to

manifest within the full spectrum of sex and gender possibilities. According to Hindu

texts and from the impersonal perspective, the soul is not male, female, or

hermaphrodite, but from the personal perspective the soul assumes such forms

according to desire. In the ordinary sphere, the soul manifests various gender roles in

the pursuit of material enjoyment, but in the spiritual world these roles are adopted for

the transcendental purpose of reciprocating with the Supreme Lord and rendering loving

service.

The following list of Hindu deities provides interesting examples of saints, demigods,

and incarnations of the Supreme Being associated with gender transformation and

diversity. These include:

(1) Deities that are hermaphrodite (i.e. half man, half woman)

(2) Deities that manifest in all three genders

(3) Male deities who become female or female deities who become male

(4) Male deities with female moods or female deities with male moods

(5) Deities born from two males or from two females

(6) Deities born from a single male or from a single female

(7) Deities who avoid the opposite sex, and

(8) Deities with principal companions of the same gender

All of these examples demonstrate the remarkable amount of gender-variance found

within Hinduism. In India, people of the third sex i.e. homosexuals, transgender,

25

bisexuals, hermaphrodites, transsexuals, etc. identify with these deities and worship

them with great reverence and devotion. In traditional Hinduism these transgendered

people were associated with divine personalities due to their combined male and female

natures and were included in the various religious ceremonies and viewed as auspicious

symbols of peace, good fortune and culture.

Listed out here are a number of deities which are transgendered, bisexual or

homosexual; Sri Ardhanarisvara, Sri Arjuna, Sri Ayyappa, Sri Bahucara-Devi, Sri

Bhagavati-Devi, Sri Bhagiratha Maharaja, Sri Brahma, Sri Caitanya Mahaprabhu, Sri

Chandi-Chamunda, Sri Durga-Devi, Sri Gadadhara, Sri Ganesha, Sri Gangamma-Devi,

Sri Harihara, Sri Iravan, Sri Jagannatha, Sri Kali, Sri Kartikeya, Sri Krsna, Sri

Minakshi-Devi, Sri Mitra-Varuna, Sri Mohini-Murti, Sri Narada Muni, Sri Ramacandra,

Sri Siva, The Six Goswamis, Sri Sukracarya, Sri Surya, Sri Vallabhavardhana and Sri

Yellamma-Devi42

2.9 Jainism and Homosexuality

In Jainism the only appropriate avenue for sex and sexuality is within marriage, and

homosexuality is believed to lead to negative karma because the sexual act is outside

marriage. There is also a mention of correction to lead a normal life as homosexuality is

considered a mental imbalance which can be cured. Thus Jainism does not censure

homosexuality as wrong which has to be condemned but just an imbalance in a person

which is curable.

2.10 Buddhism and Homosexuality

42 http://www.galva108.org/deities.html#1

26

Buddhism in its fundamental form does not define what is right and what is wrong in

absolute terms therefore to determine whether or not homosexuality is acceptable to a

person is not a religious matter as far as basic Buddhism is concerned.

Buddhism does not encourage sensual enjoyment and sexuality in general and as such

monks are expected to refrain from all sexual activity and in many instances are

prohibited from sexual intercourse. It is also interesting to note that in Buddhism, anal,

oral as well as vaginal intercourse amount to sexual intercourse. The Dalai Lama

considers certain forms of homosexual intercourse as sexual misconduct but he supports

human rights for all, regardless of sexual orientation. According to the Dalai Lama,

from point of view of society, mutually agreeable homosexual relations can be of

mutual benefit, enjoyable and harmless.43 The Indian Buddhist texts of Vasubandhu44,

Asanga45, and Ashvaghosha46 are a source which deals with what is inappropriate

sexual behaviour.

It is of interest to note that the Japanese Buddhists have a different outlook towards

homosexuality and the Japanese 17th century Buddhist scholar Kitamura Kigin47 in his

homoerotic work Iwatsutsuji or Wild Azaleas wrote that the Buddha advocated

homosexuality over heterosexuality amongst priests and that heterosexuality was to be

avoided for priests and homosexuality encouraged.

2.11 Observations on Chapter 2 43 Dalai Lama, June 11, 1997, at a press conference in San Francisco, Cited in "According to Buddhist Tradition", by Steve Peskind, Shambhala Sun, March 1998. 44 Vasubandhu (4th c.) was, according to Mahayana Buddhist tradition, an Indian Buddhist scholar-monk, and along with his half-brother Asanga, one of the main founders of the Indian Yogācāra school. 45 Asaṅga (also called Āryāsaṅga), (c. 300-370 CE), was a major exponent of the Yogācāra tradition in India, also called Vijñānavāda. Traditionally, he and his half-brother Vasubandhu are regarded as the founders of this school 46 Indian poet who lived about the second century, He wrote in Sanskrit, Born in Ayodhya (modern Oudh) into a Brahman family. His narrative poem Buddhacarita, on the life of Buddha, contains 28 songs in the Chinese and Tibetan translations (only 13 ½ songs have been preserved in the original Sanskrit version) 47 Kitamura Kigin (1625-1705) was a poet and haiku teacher of Matsuo Basho,He was a famous writer and compiler of the early Edo period

27

Thus from the discussion on religion and homosexuality the main reason for

homosexual behaviour to be considered wrong and an abhorrent criminal act is the

religious texts of the three main monotheistic or Abrahamic faiths of Judaism,

Christianity and Islam. After reading and interpreting the references made to

homosexuality in the scriptures of the Abhrahamic religions the conclusion that can be

culled out is that the survival of ancient and primitive man depended on the strength of

its people, tribe and race and due to this any form of sexual gratification outside that of

heterosexual marriage which resulted in the breeding of children was considered

immoral and criminal.

The survival prospects of the ancient races would be compromised if sexual satisfaction

was achieved through same sex intercourse or through methods other than the

traditional penal-vaginal intercourse. Thus in order to survive, the people of old

instinctively labelled any sexual act apart from that of sexual intercourse for the purpose

of procreation as illegitimate and wrong, as with their limited knowledge they probably

realised that the hedonistic urge which humans have for experiencing pure sexual

pleasure would eventually be preferred over regular heterosexual intercourse and its

resultant burden and responsibility of rearing children. Thus same sex intercourse was

looked at from the angle of procreation and not as an emotional, physiological and

psychological need.

It is worth mentioning here that today the western world has shifted its focus from the

activity of rearing children and families in favour of amassing material wealth and as

such modern jurisprudence is focused on promulgating laws which are used to curb the

accumulation of wealth. These laws surprisingly do not focus on the intelligence or the

circumstances of an individual which lead him to maximize wealth, but simply focus on

28

the fact that having too much is wrong. The point being made here is that in our modern

society we consider having too much as something wrong which was not prevalent in

ancient times when monarchs ruled everyone justly, but in contrast in ancient times

humans felt the need for existence and survival more than anything else and as such

laws were made to further the goal of procreation.

Historically Indian society was far more advanced than their western and middle eastern

counterparts in matters such as sexuality and their thought processes did not only focus

on procreation as the main purpose of sexual intercourse. In fact Indian society was very

progressive in ancient times and the act of making love with a partner or partners of

one’s choice was to achieve pleasure in a relationship. Pleasure was not limited to

penal-vaginal sexual intercourse but encompassed all forms of sexual intercourse;

heterosexual, homosexual or bisexual. The story of Indian art and sculpture goes back to

2nd and 3rd century BC from the time of Indus Civilization and the sculptures found in

places like Khajuraho, Ajanta, Ellora and in numerous caves of South India are

testimony of an Indian era which glorified eroticism and sex. In fact the sculptures in

the Ellora caves are assimilation between the three religions of Hinduism, Buddhism

and Jainism. So also the classic Kamasutra is a paean to Indian sexuality which is not

limited to the sexual union between the male and female sex but also of the same sex. In

fact India in its historical and cultural perspective glorified sexuality and it was the

influence of western culture that has made it biased towards this aspect of our age old

civilization by treating homosexuality as a crime.

After discussing how historically religion looks at homosexuality it is necessary to show

how modern science and its highly specialised branches of psychology, sociology and

genetics view the whole issue of homosexual behaviour. The next chapter will cover the

29

specialised scientific knowledge gained from empirical research with its modern data

driven methods of understanding homosexual behaviour. The chapter on science and

homosexuality being highly technical in nature the content has a lot of specialised and

esoteric words, meanings of which have been explained in the footnotes to the chapter.

30

Chapter 3 – SCIENCE AND HOMOSEXUALITY

This chapter studies the scientific research being conducted on the subject of

homosexuality on humans as well as the other species which inhabit the planet Earth.

The research studies referred to in this chapter cover a huge canvas on the

psychological, sociological, genetic and biological nature of homosexual behaviour and

do not limit itself to humans but also includes the animal world. The study will bring

out the key areas of research on the subject of homosexuality.

3 Is Homosexuality Genetic or an Individual Choice

Homosexuality is defined as sexual behaviour among people of the same gender. Male

homosexuals are called gays while female homosexuals are referred to as lesbians. In

recent years homosexuality has been the subject of scientific study in the fields of

biology, pathology, psychology and sociology.

Science with its fact finding mission based on empirical and observable data has been at

the forefront of research of trying to understand the reason for homosexual behaviour,

thus homosexuality is being studied in various scientific fields from biology to

sociology. Scientists today are on a quest to prove whether homosexuality is a natural

phenomenon or a result of complex psychological and sociological forces. The studies

attempt to discover if homosexuals are born with the inclination, or if they develop this

behaviour due to their exposure to a peculiar environment. The studies conducted are

statistical and theoretical, and based on two parallel theories for the cause of

homosexuality; they are the biological theory and the psycho-social theory. The

biological theory proposes that genetic factors, hormones and neural structures are the

root causes, whereas the psycho-social theory states that social environment is the main

triggering factor.

31

Science has found that sexuality and sexual orientation are some of the most complex

aspects of people and the answers to questions like "What causes homosexuality?” are

not simple. In research carried out on twins the conclusion arrived at was that that if one

twin is homosexual, the number of times the other twin is also homosexual occurs more

often than the general rates of homosexuality in society. Studies have also found that the

rate of homosexuality within certain families having twins, including adopted siblings

was 200-300% more frequent than the general rate in society. This made researchers

realise that something is causing homosexuality to occur more frequently in some

families and the question of whether this occurrence was due to genetics or psychology

was a challenge to be answered.

Research has also studied hormones and brain structures looking for other possible

causes that are biological but not genetic. While it has been found that there may be

biological differences between heterosexuals and homosexuals, it is not possible to

determine if these differences cause homosexuality or they are the result of homosexual

activity. Other research made on sociological and psychological causes for

homosexuality has generated substantial evidence to show that homosexuality is

developed or something you grow into, and that sexual orientation is not fixed but

changeable.

Today most researchers agree that homosexuality is multi-causal and complex; many

factors contribute to the development of same-sex attraction. It is also important to note

that the combination of factors is different for each person and that the genes which are

the hardware combined with the data of life’s experiences when processed through the

sexual software results in sexual identity. Thus to put it analogically, the sexual

software is a mixture of both genes and environment, in much the same way the

32

software of a computer is a mixture of what is installed at the factory and what is added

by the user.48

Another question which is asked about homosexual behaviour is; is homosexuality a

choice? Human choice can be accurately viewed as one of the factors influencing the

development of sexual orientation but this does not mean that people consciously decide

their sexual orientation. No one decides on a specific day that from a particular day

onwards he or she will be a homosexual or a heterosexual and as such it is impossible to

decide whether an individual will experience opposite-sex or same-sex attractions.

Instead, sexual orientation is shaped and reshaped by a series of many choices and

response to circumstances in an individual’s life coupled with enormous social and

cultural pressures.49

The question of whether homosexuality is genetic or a choice is difficult to answer and

the simple question of what causes homosexuality appears to have a rather complicated

answer, and as such it is unjust to adopt an over simplistic either/or approach when

looking for what causes homosexuality.

3.1 Psycho-sociological Theories of Homosexuality

In our modern age amongst the most passionately debated topics under scrutiny of

socio-biologists is to determine the causation and origins of homosexuality. Basically

society has two views of homosexuality, which are; the conservative view that

homosexuality is an aberration, the orientation is a disorder, and the behaviour is

pathological and the progressive view that homosexuality is a normal variant in the

human condition and that homosexual behaviour is natural. The progressive thinkers

48 P. Copeland and D. Hamer (1994), The Science of Desire (New York: Simon and Schuster). 49 http://www.exodusglobalalliance.org/causesc37.php

33

have been successful in gaining acceptance for their view. In debating sexual

orientation, much is unknown and as such we do not even know the final cause of

sexuality as the whole subject is hidden in darkness.50

Conservative thinkers argue that the individual's upbringing can directly influence

sexual orientation and thus conveniently tie in the idea of morality to homosexuality.

Today social science data is available to answer the questions posed by the conservative

view and to separate falsehood from facts concerning sexual orientation. Scientist have

felt the need to explore the subject of sexual orientation as an experience which is both

very complex and also highly variable, and which is undoubtedly influenced by both

biological and societal factors.

Most psychoanalytic theories stress the role of parental and family dynamics and not of

the society as a whole. Behaviourists believe that some sexual and gender identification

differences result from roles imposed by family and friends upon children, such as the

masculine and the feminine stereotypes. It is agreed amongst researchers that an

element of gender ID is based on the decision made by parents on how to raise the child

along with other elements such as development of language skills, naming of sexual

behaviours and the naming process related to these behaviours with other contributions

like the frequency of parental interactions, tolerance of aggression levels, and the vigour

of play during childhood.51

3.2 Ancient Theory

In 'Aristophanes' Speech in Plato's Symposium, Aristophanes investigates

homosexuality as a desire by men to share a long-term fulfilment of the soul.

50 Johnson, Ryan. “Homosexuality nature or nurture” Online 30 April 2003 51 Himel Shagor, Homosexuality: A brief study, 4th April, 2006

34

Aristophanes believed that two souls have a longing for each other and to be together,

as such the sexual desire for each other is not a factor strong enough to create

homosexuality, but that the cultural environment allows or forbids the relationship to

occur. In Greece it is well known that many men engaged in same-sex relationships;

however they were teenagers going through the transition to adulthood. Two instances

where the culture is a contributory agent of homosexual expression are in New Guinea

and Crete. In New Guinea, young boys are inseminated by the young male warriors of

the tribe and in Crete every teenager undertakes a homosexual relationship as a rite of

passage into manhood. In these two cultures homosexuality is accepted.

3.3 Freudian Theory of Homosexuality

Psychoanalytic theory is a general term for approaches to psychoanalysis which attempt

to provide a conceptual framework more-or-less independent of clinical practice and are

based more on empirical analysis of clinical cases. Sigmund Freud, Melanie Klein52,

and Jacques Lacan53 are the foremost thinkers within the field of psychoanalytic theory.

Freud's psychoanalytic theory provided a radically new approach to the analysis and

treatment of 'abnormal' adult behaviour. Earlier views tended to ignore behaviour and

look for a physiological explanation of 'abnormality'. Freud's approach was in

recognizing that neurotic behaviour is not random or meaningless but goal-directed.

Thus, by looking for the purpose behind so-called 'abnormal' behavioural patterns, the

analyst was given a method for understanding behaviour as meaningful and informative,

without denying its physiological aspects.

52 Melanie Reizes Klein (30 March 1882 – 22 September 1960) devised novel therapeutic techniques for children that had an impact on child psychology and contemporary psychoanalysis 53 Jacques Marie Émile Lacan (April 13, 1901 – September 9, 1981) a psychiatrist who made prominent contributions to psychoanalysis and philosophy

35

According to Freud, a boy's close relation to his mother, as the primary love-object,

leads to a desire for complete union with her. A girl, on the other hand, who is similarly

attached to the mother and thus caught up in a "homosexual" desire, directs her libido

toward her father. This produces a triadic relationship regardless of the individuals’ sex,

with the parent of the same sex cast in the role of a rival for the affections of the parent

of the opposite sex.

In 1935, Freud wrote that Homosexuality is assuredly no advantage, but it is nothing to

be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider

it to be a variation of the sexual function produced by a certain arrest of sexual

development. Many highly respectable individuals of ancient and modern times have

been homosexuals, several of the greatest men among them (Plato, Michelangelo,

Leonardo da Vinci, etc.) and that it is a great injustice to persecute homosexuality as a

crime.54

3.4 Parental Manipulation and Kin Selection Theory

Within the realm of psychology there exists the Parental Manipulation Theory, which

states that one or both parents of a child work to control their offspring in order to

promote their (the parental) evolutionary fitness. This control allows for genes to be

passed onto the next generation, ensuring the survival of the parental genes.

Psychologists believe that in this theory parents pressure their children to engage in

heterosexual behaviour to facilitate the passage of their genes into the next generation.

However, the Kin-Selection Theory states that it does not matter how the genes are

passed down into the next generation, as long as they are in some form. If a child

engages in homosexual relations though, the only way they will be able to have a baby,

54 Sigmund Freud, Letter to an unnamed mother dated 9th April, 1935

36

would be to adopt, therefore, the original parental genes would not be passed down

then. It seems to me then that the Parental Manipulation Theory would be the most

likely scenario for parents to adopt if they are concerned with the transmission of their

genes.

3.5 Planophysical Theory

The Planophysical theory states that homosexuality is an error of nature a freak

produced no doubt, by nature, but not in accordance with her grand plan. D. Halperin55

believed in the Planophysical theory. This theory propagates the Freudian idea that

homosexuality is derived from an unresolved Oedipus complex. The theory postulates

that a weak father and strong mother, with an unresolved Oedipus complex will lead to

a weak, and then homosexual son, because the mother has too strong an image,

compared to the weak state of the father. Psychologists argue that this same

arrangement could also possibly lead to a stronger son, striving for compensation of the

father's weakness.

3.6 Michel Foucault56 and the Social Sexuality Theory

Michel Foucalt another social theorist, argued, that homosexuality became because we

made it so. Foucault gives root to the social derivation of homosexuality believing that

homosexuality appeared as one of the forms of sexuality, only after it was transposed

from the practice of sodomy into a kind of interior androgyny, a hermaphrodism of the

soul. In “The History of Sexuality" he argues on the historical analysis of the word

"sexuality" against the common thesis that sexuality always has been repressed in

55 David A. Halperin (September 1, 1934 - December 3, 2003) was an American psychiatrist and Associate Clinical Professor of Psychiatry at Mount Sinai School of Medicine 56 Michel Foucault (15 October 1926 – 25 June 1984), was a French philosopher, social theorist and historian of ideas. He held a chair at the Collège de France with the title "History of Systems of Thought," and lectured at the University at Buffalo and the University of California, Berkeley

37

western society. Historically, there have been two ways of viewing sexuality, according

to Foucault. In China, Japan and India sexuality is seen as an "Ars erotica" or erotic art,

where sex is seen as an art and a special experience and not something dirty and

shameful. It is something to be kept secret only because otherwise it would lose its

power and pleasure if spoken about.

In western society something completely different has been created, what Foucault calls

"scientia sexualis", the science of sexuality. It is a phenomenon diametrically opposed

to ‘Ars erotica’; it is based on the concept of confession and as such sexuality is

something which society has the urge to talk. Western society has a fixation with

finding out the "truth" about sexuality, a truth that is to be confessed. It is as if sexuality

did not exist unless it is confessed. Foucault writes that western society has become an

extraordinarily confessing society. Confession has spread its effects far and wide: in the

judicial system, in medicine, in pedagogy, in familial relations, in amorous

relationships, in everyday life and in the most solemn rituals; crimes are confessed, sins

are confessed, thoughts and desires are confessed, one's past and one's dreams are

confessed, one's childhood is confessed; one's diseases and problems are confessed. In

this scenario the term "Coming out" as a concept did not exist when Foucault wrote

"The History of Sexuality", but this process of confessing homosexuality can surely be

interpreted as an expression of this urge to confess. There seems to be a compulsion to

reveal one's sexuality to confirm its existence in our society. In ‘Ars erotica’ a very

different view is held, and people are content to let it remain a secret in the positive

sense of the word.

With more enlightenment the view of sexuality as something sinful to be confessed

changed. It was adapted to modern demands of rationality by turning itself into a

38

science. The doctrines on sexuality postulated several "unnatural" sexual behaviours.

Just as in the 16th century, the focus was on regulating the sexuality of the married

couple, ignoring other forms of sexual relations; today we identify groups through their

sexuality; children, criminals, mentally ill and gays. Sexuality became the core of

identity. Homosexual relations, seen as a sin that could be committed from time to time,

now emerge as a group of "homosexuals" and as such the sodomite who was once

considered a recidivist today is a species. The closeted homosexual of the 19th century

became a person of the past, and today’s homosexual has a personality and a lifestyle.

In modern times seeing gays as a group is taken for granted whereas before the 18th

century it was simply not seen as being a fundamental part of the person, but instead as

an action, something he or she did.

Foucault emphasizes that the aim of these new moral codes was not to abolish all forms

of sexuality, but instead to preserve health and procreation. Many forms of sexuality

were seen as harmful and they wanted to protect health and the purity of the race. A

mixture of ideas on population growth, venereal diseases and heredity created the idea

that many forms of sexual conduct where dangerous. Now that sexual actions were

being identified and their naturalness and healthiness was analysed, the concept of

"sexuality" was created. Thus Foucault claimed that sexuality and sexual conduct is not

a natural category, having a foundation in reality but that it is a question of social

constructions, categories only having an existence in a particular society and what we

now call homosexuality cannot exist outside our specific cultural context. Thus for the

first time, sexuality was analysed as a social construction, a perspective making it

39

possible to study the origins and the development of our view of sexuality in a totally

new way57.

3.7 Alfred Kinsey’s58 Research

Kinsey carried out research on human sexuality with the main objective of the study

being to find out how many adult males engaged in homosexual behaviour. Then end

result of the research was; that a large percentage of the population who were tested

answered ‘no’ to the question whether they had engaged in homosexual sexual relations,

however when asked if they had engaged in same-sex sexual relations, the percentage

answering 'yes' nearly doubled and also that 30% of males had experienced orgasm in a

homosexual act. The results of this research became the widely popularised Kinsey

Scale of Sexuality which rates all individuals on a spectrum of sexuality, ranging from

100% heterosexual to 100% homosexual, and everything in between.59

3.8 Homosexuality and Pathology

Homosexual behaviour and intercourse is when some human beings engage in the

sexual act with others of the same sex. Historically, however, the focus was on the acts

themselves rather than on the actors. The historian John Boswell of Yale University has

stated that during the middle Ages "same-sex sex" was regarded as a sin, but those who

committed that sin were not defined as constituting a type of people different from

others. It was between the 16th and 18th century that same-sex sex became a crime as

57 Foucault, Michel. 1980. The History of Sexuality, Volume 1: An Introduction. New York: Vintage Books 58 Alfred Charles Kinsey (June 23, 1894 – August 25, 1956) was an American biologist and professor of entomology and zoology, who in 1947 founded the Institute for Sex Research at Indiana University 59 Kinsey, Alfred C., et al. 1948/1998. Sexual Behavior in the Human Male, Philadelphia: Bloomington, IN: Indiana University Press. Kinsey, Alfred C., et al. 1953/1998. Sexual Behavior in the Human Female, Philadelphia PA: W.B. Saunders; Bloomington: Indiana University Press.

40

well as a sin, but unfortunately those who committed such crimes were not categorized

as a class of human being. This utterly biased thinking process changed in the 19th

century, when modern medicine and particularly the science of psychiatry came to view

homosexuality as a form of mental illness with pathological reasons and as such

homosexuality was discussed as an aspect of psychopathic, paranoid, and schizoid

personality disorders. Thus homosexuality was defined by psychiatrists as a

pathological subject and doctors decided that it required treatment. This view of

homosexuality was distinctly different from the religious and primitive view that it was

a sin and a crime.

Homosexuality was considered a disease which was the result of many psychological,

psychiatric and sociological factors and it is a fact that homosexuals were subjected to

sometimes inhuman treatment to cure them of their sexual orientation.

It is pertinent to mention here for the sake of information and enlightenment the

methods of treatment used on homosexuals, which were documented in 1992 by

psychologist James Harrison60 in the documentary film “Changing Our Minds”.

Harrison shows how the medical profession also treated homosexuality with abhorrence

and cruelty, where lesbians were forced to submit to hysterectomies61 and estrogen62

injections even though neither of these had any effect on their sexual orientation and

Gay men were subjected to similar abuses. One such cruel treatment was known as

transorbital lobotomy63. Another treatment recorded was used by the U.S. Navy where

an electric shock was applied to the head in an attempt to cure a person of his sexual

orientation. 60 Dr. Jim Harrison is PhD in Clinical Psychology from the University of North Texas 61 Surgical removal of part or all of the uterus 62 Any of several steroid hormones produced chiefly by the ovaries and responsible for promoting estrus and the development and maintenance of female secondary sex characteristics 63 a method of performing prefrontal lobotomy in which the surgical knife is inserted above the eyeball and moved to cut brain fibres

41

Homosexuality was found to be very common across lines of family, class, and

educational and geographic background. In the attempt to find patients who had been

converted from homosexuality to heterosexuality during therapy, researchers did not

find a single subject whose sexual orientation had changed. When they interviewed

persons who claimed they had been homosexuals but were now functioning

heterosexually, they found that all these men were simply suppressing homosexual

behaviour and that they used homosexual fantasies to maintain potency during sexual

intercourse. In the course of research one homosexual male subject even claimed that

although he had once been actively homosexual he had now stopped thinking about men

except when he masturbated.

Evelyn Hooker64 whose training had been in the area of homosexuality as pathology,

did research on a group of thirty gay men as the objects of her research and thirty

straight men as controls; none of the sixty had ever sought or undergone psychiatric

treatment. It was also the first time that homosexuals had been studied outside a medical

setting or prison. Hooker administered psychological tests to her sixty subjects,

including the Rorschach ink-blot test, producing sixty psychological profiles. She

removed all identifying marks, including those indicating sexual orientation, and, to

eliminate her own biases, gave them for interpretation to three eminent psychologists.

As it turned out, none of the three psychologists could tell the homosexuals and

heterosexuals apart. In side-by-side comparisons of matched profiles, the heterosexuals

64 Evelyn Hooker (September 2, 1907–November 18, 1996) was a North American psychologist most notable for her 1957 paper "The Adjustment of the Male Overt Homosexual"

42

and homosexuals were indistinguishable, demonstrating an equal distribution of

pathology and mental health.65

Hooker's research study was the first of many showing that homosexuality could not be

defined as pathology. Consequent to Hooker’s and other research in field of

homosexuality and pathology the American Psychiatric Association in 1973 finally

concluded that homosexuality is neither a mental illness nor a moral depravity and that

it is the way a portion of the population expresses human love and sexuality and

removed homosexuality from its official Diagnostic and Statistical Manual, signifying

the end of homosexuality's official status as a disease. Today psychiatrists and

psychologists, with very few exceptions, do not try to change sexual orientation, and

those aspiring to work in the fields of psychiatry and psychology are now trained not to

regard homosexuality as a disease.

3.9 Biology, Genetics and Homosexuality

After homosexuality moved from the realm of psychiatric pathology into the realm of

normal variants of human sexual behaviour, research efforts took a new turn. Psychiatry

had succeeded in defining what homosexuality is not, but not in explaining what it is.

Thus biology and genetics took the field in conducting research and finding a scientific

reason for homosexuality and homosexual behaviour.

Homosexuality is an issue that has always sparked debate in the entire world. The

question is whether it is possible that one is born with the characteristic of being

65 Hooker, E. (1958), the adjustment of the male overt homosexual. Journal of Projective Techniques, 21, 18-31. Hooker, E. (1958). Male homosexuality in the Rorschach Journal of Projective Techniques, 22, 33-54 Hooker, E. (1968). Sexual behaviour: Homosexuality. In D. L. Sills (Ed.) International Encyclopaedia of the Social Sciences (pp. 222-223) New York: Macmillan Hooker, E. (1993). Reflections of a 40-year exploration: A scientific view on homosexuality. American Psychologist, 48, 450-453.

43

homosexual, or is it solely a learned behaviour embedded in cultural norms?

Researchers since the 1950’s have studied homosexuality in a variety of ways, through

genetics, animal behaviour, and even birth order. These research studies have made

much progress since the time homosexuality was merely considered a curse from God

and a sin based on religious texts.

The magazine “Health and Medicine Week” in March 2004 published research findings

from the study of homosexuality in rams (male sheep) where scientists at Oregon Health

and Science University School of Medicine looked at the biological foundations of a

male sheep's homosexuality. They used rams because they had consistently and

thoroughly studied this animal in the past and as such it provided for a controllable

experiment. They studied the oSDN (ovine sexually dimorphic nucleus) which is an

irregularly shaped, densely packed cluster of nerve cells in the hypothalamus of the

sheep brain as the hypothalamus is an important part of the brain that regulates body

temperature, blood pressure, as well as sexual behaviour. The researchers found that the

oSDN was larger and contained more neurons in male-oriented rams. While this study

was solely on ram behaviour, it is believed that homosexuality can be found in many

different species, not limited to humans. This is also important because it is the first

time that a relationship existed between variations in sexual partner preference and

brain structure in an animal, which could provide insight into how humans are studied

and what should be looked for in humans to unlock the clues of biological causes of

homosexuality.

Besides studying animals ground breaking research was done on humans. The prenatal

hormone theory is a provocative explanation of the link between biology and

homosexual tendencies. It is based on the idea that hormones can affect a foetus in the

44

womb and can influence brain development. Studies on the neuroendocrine66 function

in homosexuality has shown that while levels of testosterone and estrogens do not

typically vary along the lines of homo and heterosexuality, it is one's response

mechanisms to these hormones that can play a role in sexual orientation. Hence the

central nervous system which mediates behaviour and physiological responses can be

heavily affected by the level of hormones present.

It is also believed that birth order has a direct relation to whether or not one is gay. It is

possible that a woman's foetus builds up certain antibodies in her first pregnancy, if it is

with a male, to male antibodies, and these affect the development of male foetuses in

subsequent pregnancies and as such for each older brother, humans are believed to be

approximately 33% more likely to be homosexual.67

Thus Biological theorists have found substantial instances of anatomical, genetic, and

endocrine evidence to support their arguments on homosexuality and the current debate

is whether or not homosexuality is a result of nature; a person's environment and

surroundings, or of his biology and genetics. The key research in the biological and

genetic fields is briefly mentioned here.

3.10 Havelock Ellis’68 Research

Early in the 20th century it was Havelock Ellis who first raised the question of the

biological basis of sexual orientation by arguing that homosexuality was inborn not

immoral and not a disease and that many homosexuals made outstanding contributions

66 Of, relating to, or involving the interaction between the nervous system and the hormones of the endocrine glands 67 Lawrence, Georgia “The science of homosexuality” online 13.3.2006 at Serendip.brynmawr.edu 68 Havelock Ellis (2 February 1859 – 8 July 1939), was a British physician and psychologist, writer, and social reformer who studied human sexuality

45

to society. Havelock Ellis and Edward Carpenter69 argued that laws against same-sex

sexual activities should be dropped because people engaging in such activities were

biologically different from those with opposite-sex partners: they called such people

'inverts'. In fact the use of the word 'homosexual' as a noun to describe a certain kind of

person, rather than an adjective referring to specific activities, dates from this period70.

3.11 The Twin Studies

In 1952 F. Kallman71 conducted the earliest twin study where in his research he

obtained 85 male index cases that were predominantly or exclusively homosexual

members of a twin-ship. Of these 85 index cases, 40 were monozygotic72 (MZ) twins,

and 45 were dizygotic73 (DZ) twins. The recruitment of the subjects or index cases was

organized with the aid of psychiatric, correctional, and charitable agencies, and also

through direct contacts with the clandestine homosexual world. In the research for the

dizygotic twins category Kallman found a concordance rate of 11.5% for predominant

homosexuality and 42.3% for any type of homosexuality. For the monozygotic twins, a

very different picture emerged, where of the 37 index cases whose co-twins were

classified; all were concordant for homosexuality with a concordance rate of 100%.

J. M. Bailey74 and R. Pillard75 also studied the gayness between MZ twins, DZ twins,

and non-related adopted brothers. They determined the zygosity76 of the subjects using a

questionnaire containing items relating to physical similarity. They examined how many 69 Edward Carpenter (29 August 1844 – 28 June 1929) was an English socialist poet, socialist philosopher, anthologist, and early gay activist 70 Sexual Inversion (1897) (with J.A. Symonds) 71 Franz Josef Kallmann (July 24, 1897– May 12, 1965), a German-born American psychiatrist, was one of the pioneers in the study of the genetic basis of psychiatric disorders 72 Derived from a single fertilized ovum or embryonic cell mass, used especially of identical twins 73 Derived from two separately fertilized eggs, used especially of fraternal twins 74 John Michael Bailey (born July 2, 1957) is an American psychologist and professor at Northwestern University. He is best known among scientists for his work on the etiology of sexual orientation 75 Richard Colestock Pillard (born 11 October 1933) is a professor of psychiatry at the Boston University School of Medicine best known for his work on biology and sexual orientation 76 The genetic condition of a zygote, especially with respect to its being a homozygote or a heterozygote

46

of the sample population examined were gay and how many were straight. They found

that 52% of MZ twins were both self-identified homosexuals, that 22% of DZ twins

were homosexual and that only 5% of non-related adopted brothers were homosexual.

This research found that twins as subjects of the research provided a powerful means of

separating the influences of genetic and environmental factors on psychological and

behavioural traits as an identical monozygotic twin has exactly the same genes as his

co-twin, and the dizygotic twins, on the other hand, are related genetically like other

normal siblings (i.e. approx. 50% of their genes are the same). Thus the research proved

that the more closely genetically linked a pair is, the more likely they both are to exhibit

gay or straight tendencies77.

3.12 The Gene Studies

Another researcher Dean Hamer78 in the 'gay gene study' was of the opinion that

homosexuality is an X-Chromosome linked trait (X-linkage) and in furtherance of this

theory examined the family trees of gay men. The 40 DNA samples he genetically

examined from homosexual men showed that there was a 'remarkable concordance' for

5 genetic markers on the section of the X-Chromosome called Xq28 which in statistical

probability of the 5 genetic markers on Xq28 to have matched randomly was calculated

to be 1/100,000. The finding of a possible 'gay gene' gave research a new direction to

look into evolutionary concepts and how they are affected. The Superior Heterozygote

Theory states if the person's genetic code is Heterozygotic (one homosexual gene and

one heterosexual gene) and if the homosexual allele or half of the genetic code is passed

77 Pillard, Richard and J. M. Bailey, 1998, Human sexual orientation has a heritable component. Human Biology 70: 347-65; Bailey, J. Michael, et al. 1999. A family history study of male sexual orientation using three independent samples Behaviour Genetics, 29; 79-86; Bailey, J. Michael and R. Pillard 1991, A genetic study of male sexual orientation. Archives of General Psychiatry 48: 1089-96 78 Dr. Dean Hamer (born 1951) is an American geneticist, author, and filmmaker. He is known for his contributions to biotechnology and AIDS prevention, his research on the genetics of human behavior including sexual orientation and spirituality

47

on to the next generation, it will become the phenotype. These Heterozygotes are only

capable of being passed through to the next generation by mothers (as the Y-

chromosome is incapable of Heterozygosity) and this links homosexuality to X-

linkage79.

3.13 The Hypothalamus and Homosexuality

Genetic scientist D. F. Swaab80 in 1990 conducted an experiment which documented a

physiological difference in the anatomical structure of a gay man's brain. Swaab found

in his examination of homosexual males' brains that a portion of the hypothalamus81 of

the brain was structurally different than a heterosexual brain. The hypothalamus also

controls body temperature, hunger and thirst, and sexual activity. In the homosexual

brains examined, a small portion of the hypothalamus, termed the suprachiasmatic

nucleus82 (SCN), was found to be twice the size of its heterosexual counterpart. Then in

1991, Simon LeVay83 reported that the third interstitial nucleus of the anterior

hypothalamus (INAH-3) was also smaller in homosexual men than in heterosexual men

and concluded that homosexual and heterosexual men differ in the central neuronal

mechanisms that control sexual behaviour and that this difference in anatomy was not a

product of upbringing or environment, but rather prenatal cerebral development and

structural differentiation84. Laura Allen and Roger Groski85 who were also researching

79 Hamer, D; S. Hu; V. Magnuson; N. Hu; and A. Pattatucci. 1993. A linkage between DNA markers on the X chromosome 80 Dick Swaab, MD, PhD, Director of the Netherlands Institute for Brain Research 81 he part of the brain that lies below the thalamus, forming the major portion of the ventral region of the diencephalon and functioning to regulate bodily temperature, certain metabolic processes, and other autonomic activities 82 A tiny region on the brain's midline situated directly above the optic chiasm. It is responsible for controlling circadian rhythms. The neuronal and hormonal activities it generates regulate many different body functions in a 24-hour cycle 83 Simon LeVay (born 28 August 1943) is a British-American neuroscientist. He is known for his studies about brain structures and sexual orientation 84 Levay, S. 1991, A difference in hypothalamic structure between heterosexual and homosexual men Science 253: 1034-37

48

on the hypothalamus and sexuality found that the anterior commissure86 (AC) of the

hypothalamus was also significantly larger in the homosexual subjects than that of the

heterosexuals87. Thus Swaab's, LeVay’s and Allen’s research became a standing ground

for the biological argument on homosexuality.

3.14 Animal Homosexuality and Natural Diversity

Scientific research studies on the behavioural patterns of species other than the human

species have shown that approximately 450 of the species have clear homosexual

behaviour. This homosexual behaviour runs the gamut from mutual masturbation to

anal and oral sex, petting, kissing and caressing. It was researched that 130 species of

birds are reported to have peculiar sexual characteristics and that south-eastern

blueberry bees have homosexual tendencies. It has also been found that same sex pairs

of animals kiss and caress each other with obvious affection and tenderness. Male pairs

and female pairs form long-lasting pair-bonds and reject, threaten, and even fight off

potential opposite sex partners when they are presented with them. Same sex partners

engage in almost every conceivable means of sexual expression throughout the animal

kingdom. It has been observed that every other sexual behaviour engaged in by human

homosexuals has been observed in homosexual animals. It has been observed that

dolphins use their blowhole as a receptive orifice for homosexual intercourse.88

85 Laura S. Allen, PhD, Assistant Researcher, and Roger A. Gorski, PhD, Professor, in the Laboratory of Neuroendocrinology at the David Geffen School of Medicine at the University of California at Los Angeles (UCLA) 86 The anterior commissure (also known as the precommissure) is a bundle of nerve fibers, connecting the two cerebral hemispheres across the midline, and placed in front of the columns of the fornix 87 L.S. Allen and R.A. Gorski, "Sexual Orientation and the size of the anterior commissure in the human brain," Proc. Natl. Acad. Sci. 89 (1992): pp. 7199-7202, cited in Byne and Parsons, op. cit. p. 235. 88 Shagor, Himel “Homosexuality: A brief study” at www.mukta-mona.com

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Some examples of homosexuality in the animal kingdom are tabulated below89:

Species Homosexual (%) Bisexual (%) Heterosexual (%)

Silver Gulls (females) 10 11 79

Black Headed Gulls (both sexes) 25 15 63

Japanese macaques (both sexes) 9 56 35

Bonobo chimpanzees (both

sexes)

0 100 0

Galahs (both sexes) 44 11 44

Bruce Bagemihl90 a Canadian scientist who is the author of “Biological Exuberance:

Animal Homosexuality and Natural Diversity” states that there exists homosexual

behaviour in mammals, birds, reptiles and insects which is an enormous implication for

homosexual behaviour in the human race. Bagemihl proves that animals are not only

capable of homosexuality but that they are also capable of rape, divorce, cannibalism,

child abuse, cross-dressing, and infidelity. The range of animal behaviour from same-

sex cooperation to pair bonding amongst some animals which include cheetahs,

bottlenose dolphins, and silver gulls, sometimes lasts temporarily or for a lifetime and

89 Biological Exhuberance: Animal Homosexuality and Natural Diversity, Bruce Bagemihl, St. Martin's Press, 2000, 90 Bruce Bagemihl is a Canadian biologist, linguist, and author of the book Biological Exuberance: Animal Homosexuality and Natural Diversity

50

courtship, sex, affection, gathering food, finding a home have all been observed among

a range of partners, from heterosexual to homosexual in the animal world.

3.15 Observations on Chapter 3

After having briefly understood the various theories on homosexuality; psychological,

social, pathological, biological and genetic, one cannot say that any of them are the final

answer or that they are foolproof. It is worth mentioning here that these scientific

theories are based on extensive research both theoretical and empirical with a lot of

effort and time having been spent by the researchers to arrive at their findings. Though

the origins and reasons for homosexuality are of great interest and importance in our

modern society, no one theory or experiment leads to a definitive answer. It could be the

characters found on Xq28 which may ultimately prove homosexuality and the elusive

'gay gene’ or that anatomy is the key to understanding the difference in sexual

orientation or the psycho-social theories of Freud, Foucault and Halperin have the

answer to homosexuality or that Bagemihl’s work on sexuality in the animal kingdom

needs more recognition than it is given. There is no answer to issues of sexual

orientation, whether homosexual or heterosexual; gay, straight, lesbian, or bisexual.

Homosexuality may be caused by a complex interaction between environmental,

cognitive, and anatomical factors, which shape the individual at an early age. The

research by the scientific and medical community will hopefully continue into the future

and we might have an answer to the origins and reasons of homosexual behaviour, and

as such the question whether homosexual behaviour is deviant and abhorrent or if it just

a another facet of nature thrust upon the human race will be answered.

The waning power of religion has opened the doors for scientific research into the

complex, misunderstood and controversial area of homosexuality in the past hundred

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years, and has made a lot of inroads into the realm of homosexuality and its origins. The

research carried out globally has proved that homosexuality is not deviant or perverted

behaviour but a human condition having its roots embedded in genetics and the

psychological and sociological profiles of the individual.

The next key area of the study will be how the law looks at homosexuality from the

International and Indian perspective and as such the next chapter will focus on criminal

and general laws on homosexuality in developed countries and law and homosexuality

in India.

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Chapter 4 – LAW AND HOMOSEXUALITY

This chapter will first cover the changing trends in human rights which has a

humanitarian agenda for GLBT’s91. In recent times the human rights movement has

focused on GLBT’s who are also human beings and have as much rights as any other

being, to choose their sexual preferences and orientations in an ever changing world.

The chapter will also cover the law with regard to homosexuality and homosexual

intercourse from two perspectives; (1) the first world countries and (2) India. The

chapter will focus on the existing laws on homosexuality in the first world countries and

India along with case studies bringing out the raging controversy on the nature of

homosexuality and its criminalization.

4 International Perspective - Human Rights and GLBT’s

Many countries today still have archaic laws criminalizing homosexuality as an offence

but there are also many developed and developing countries which have decriminalized

homosexuality over a period of time in the spirit of the Human rights movement.

On 18th December, 2008 the United Nations passed a non-binding declaration for rights

to GLBT’s which was co-sponsored by France and the Netherlands. The 192 member

states of the UN were evenly divided on the declaration and it was passed with the

support from 66 countries with 57 countries opposing the motion and 69 member states

abstaining. The European Union, Australia, Canada, Japan, Mexico, New Zealand and

34 other countries, including most of the countries of Latin America supported the

declaration. The 56 predominately Muslim countries belonging to the Islamic

Conference of States and a few other countries either abstained or voted against the

91 Gays, Lesbians, Bisexuals and transsexuals

53

declaration. China, Russia, and the United States abstained. The United States was

notable the only western country not voting for the declaration but as the vote was taken

a few weeks before the end of the Bush administration and the outcome might certainly

have been different if the USA's vote was held during the Obama administration.

It is interesting to note that opposition to equal rights for homosexuals and

transgendered persons is one of the very few principles over which the predominately

Muslim countries belonging to the Islamic Conference of States and the Vatican agreed

upon and voted against.

On 19th December, 2008 the Argentina representative to the UN made a statement on

human rights, sexual orientation and gender identity on behalf of Albania, Andorra,

Argentina, Armenia, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina,

Brazil, Bulgaria, Canada, Cape Verde, Central African Republic, Chile, Colombia,

Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France,

Gabon, Georgia, Germany, Greece, Guinea-Bissau, Hungary, Iceland, Ireland, Israel,

Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico,

Montenegro, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Paraguay, Poland,

Portugal, Romania, San Marino, Sao Tome and Principe, Serbia, Slovakia, Slovenia,

Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Timor-Leste,

United Kingdom, Uruguay, and Venezuela. The statement covered some important

issues on human rights and the GLBT community which are stated briefly here.

(a) That the principle of universality of human rights enshrined in Article 1 of the

Universal Declaration of Human Rights proclaims that 'all human beings are born free

and equal in dignity and rights'.

54

(b) That everyone is entitled to the enjoyment of human rights without distinction of

any kind, such as race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth or other status, as set out in Article 2 of the

Universal Declaration of Human Rights and Article 2 of the International Covenants on

Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the

International Covenant on Civil and Political Right.

(c) That the principle of non-discrimination requires that human rights apply

equally to every human being regardless of sexual orientation or gender identity.

(d) That it is a matter of great concern that there are violations of human rights and

fundamental freedoms based on sexual orientation or gender identity.

(e) That it is human that violence, harassment, discrimination, exclusion,

stigmatization and prejudice are directed against persons in all countries in the world

because of sexual orientation or gender identity, and that these practices undermine the

integrity and dignity of those subjected to these abuses.

(f) That human rights violations based on sexual orientation or gender identity

wherever they occur, in particular the use of the death penalty on this ground,

extrajudicial, summary or arbitrary executions, the practice of torture and other cruel,

inhuman and degrading treatment or punishment, arbitrary arrest or detention and

deprivation of economic, social and cultural rights, including the right to health is to be

condemned.

(g) That attention paid to the issues of human rights violations based on sexual

orientation or gender identity by special procedures of the Human Rights Council and

treaty bodies are to be encouraged.

55

(h) That the Resolution AG/RES. 2435 (XXXVIII-O/08) on 'Human Rights, Sexual

Orientation, and Gender Identity' by the General Assembly of the Organization of

American States during its 38th session on 3rd June 2008 is adopted.

(i) That all States have the relevant international human rights mechanisms to

promote and protect human rights of all persons, regardless of sexual orientation and

gender identity.

(j) That all States have to take all the necessary measures, in particular legislative

or administrative, to ensure that sexual orientation or gender identity may under no

circumstances be the basis for criminal penalties, in particular executions, arrests or

detention.

(k) That all States have to ensure that human rights violations based on sexual

orientation or gender identity are investigated and perpetrators held accountable and

brought to justice.

(l) That all States have to ensure adequate protection of human rights defenders,

and remove obstacles which prevent them from carrying out their work on issues of

human rights and sexual orientation and gender identity.

Immediately after the Argentinean statement on 19th December, 2008 the UN

representative of the Syrian Arab Republic read a counterstatement with the support of

Afghanistan, Algeria, Bahrain, Bangladesh, Benin, Brunei, Cameroon, Chad, Comoros,

Cote d'Ivoire, DPR Korea, Dijbouti, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Guinea,

Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kenya, Kuwait, Lebanon, Libya, Malawi,

Malaysia, Maldives, Mali, Mauritania, Morocco, Niger, Nigeria, Oman, Pakistan, Qatar,

Rwanda, Saint Lucia, Saudi Arabia, Senegal, Sierra Leone, Solomon Islands, Somalia,

56

Sudan, Swaziland, Syria, Tajikistan, Togo, Tunisia, Turkmenistan, Uganda, United

Arab Emirates, United Republic of Tanzania, Yemen, and Zimbabwe.

The statement was not posted on the internet but Fridae, a group known for

“Empowering Gay Asia” published a summary that has been widely quoted with

comments from Fridae shown in [brackets].

(a) That right based on sexual orientation and gender identity are "new rights" that

have no legal foundation in any international human rights instrument. [Ignoring the

possibility of new human rights leads to stagnation.]

(b) That the real issue is that the problems based on discrimination on the basis of

colour, race, gender and religion are still not resolved. [These discrimination are

already well covered in the Universal Declaration of Human Rights]

(c) That the issues of GLBT rights fall essentially within the domestic jurisdiction

of member states. [This is always the last refuge for dictatorships that reserve the right

to mistreat their citizens without experiencing criticism from the rest of the world.]

(d) That to accept rights on the basis of "sexual orientation" can lead to acceptance

of paedophilia, bestiality and incest. [Giving a heterosexual, homosexual, or bisexual

the right to love another adult to whom they are committed does not allow them to

molest children, fornicate with animals or have sex with their children or other near

relatives.]

(e) That GLBT’s are not "vulnerable groups" in need of special protection unlike

women, children, the disabled, and refugees. [Then does it mean to say that no wrong is

committed if a GLBT person is sentenced to life imprisonment or executed.]

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(f) That the genetic cause for particular sexual interests or behaviours have been

repeatedly rejected by science. [This is wrong as researchers without religious bias

have stated that sexual orientation has a genetic origin and that gender identity has a

genetic and/or pre-birth hormonal origin.]

(g) That the protection of the family as "the natural and fundamental group unit of

society" in accordance with article 16 of the Universal Declaration of Human Rights is

of the most importance. [Families come in many forms including those headed by two

heterosexuals, two homosexuals, one homosexual and one bisexual or two bisexuals and

as such all spouses, parents and children need protection.]

In spite of the Arab league nations having had their say, on the 26th of December, 2008

the United Nations High Commissioner for Human Rights Mrs. Navanethem Pillay92,

stated that those who are lesbian, gay or bisexual, as well as those who are transgender,

transsexual or intersexual, are full and equal members of the human family, and are

entitled to be treated as such. That sexual orientation and gender identity was for the

first time in history adopted as a resolution at the General Assembly of the United

Nations and signed by 66 countries and that there are many countries in the world which

continue to criminalize sexual relations between consenting adults of the same sex in

defiance of established human rights law. That many of these laws, that criminalize

sexual relations between consenting adults of different races, are relics of the colonial

era and are increasingly becoming recognized as anachronistic and as inconsistent both

with international law and with traditional values of dignity, inclusion and respect for

all.

92 Navanethem "Navi" Pillay (born 23 September 1941) is a South African, she was the first non-white woman on the High Court of South Africa, and she has also served as a judge of the International Criminal Court and President of the International Criminal Tribunal for Rwanda.

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4.1 International Laws on Homosexuality

This section will cover how the advanced first world countries have handled the issue of

law and homosexuality. In order to identify the first world countries the United Nations

Human development index of 2011 is used as a starting point. The Human development

index (HDI) is the best indicator as the subjects of sexuality and crime are best captured

in the process of development of the human as a civilized species. The countries which

have a higher development index are technologically, medically, scientifically and

economically advanced and as such are front runners in bringing about change in

society and its thought processes. It is this change in the human thought process which

is instrumental in changing the age old conception of right and wrong based on religion

and other peculiarities of cultures in favour of scientifically proved facts.

The Human development index93 of 2011 is as below:

The laws on homosexuality in the five selected countries mentioned in UN Human

Development index are summarized for a better understanding of how highly developed

93 http://hdr.undp.org/en/statistics/hdi/

Human Development Report 2011 - Sustainability and Equity: A Better Future for AllTable 1 - Human Development Index and its components

Human Development Index

(HDI)

Life expectancy at

birth

Mean years of schooling

Expected years of schooling

Gross National Income (GNI) per

capitaHDI rank Value (years) (years) (years) (Constant 2005 PPP$)

2011 2011 2011a 2011a 2011

VERY HIGH HUMAN DEVELOPMENT1 Norw ay 0.943 81.1 12.6 17.3 47,557

2 Australia 0.929 81.9 12.0 18.0 34,431

3 Netherlands 0.910 80.7 11.6 b 16.8 36,402

4 United States 0.910 78.5 12.4 16.0 43,017

5 New Zealand 0.908 80.7 12.5 18.0 23,737

6 Canada 0.908 81.0 12.1 b 16.0 35,166

7 Ireland 0.908 80.6 11.6 18.0 29,322

8 Liechtenstein 0.905 79.6 10.3 c 14.7 83,717

9 Germany 0.905 80.4 12.2 b 15.9 34,854

10 Sw eden 0.904 81.4 11.7 b 15.7 35,837

11 Sw itzerland 0.903 82.3 11.0 b 15.6 39,924

12 Japan 0.901 83.4 11.6 b 15.1 32,295

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nations treat the issues of homosexuality, incidentally India is ranked 134th in the UN

Human Development Index. The selection is based on the following criteria.

(1) Norway is selected as it is first among the developed nations.

(2) Sweden is selected as it is the 10th nation on a scale of 1 to 10 amongst

developed nations.

(3) Australia is selected as it is a separate continent.

(4) The United States of America is selected as it is the foremost superpower of the

world and a benchmark for multi-racial citizen content.

(5) Japan is selected as it is an Asian nation which reflects as no. 12 in the HDI.

4.2 Norway

Even though homosexual acts between men were considered illegal till 1972 the

homosexual community was not prosecuted. In 1972, section 213 of the country's Penal

Code which prohibited sexual acts between men (but not women) was repealed.

Following the repeal, the age of consent for sexual relations was changed to 16 for both

homosexuals and heterosexuals. The Norwegian Penal Code also prohibits

discriminatory statements or the refusal to provide goods or services to people having a

homosexual orientation and these provisions of law are strictly enforced by the courts.

In 1981, Norway became the first country in the world to enact anti-discrimination laws

protecting gay men and lesbians under both civil and criminal legislation. The laws

prohibit differential treatment in the workplace and discrimination in the housing sector

on the basis of sexual orientation. Norway has an Equality and Anti-discrimination

Ombudsman who reviews complaints relating to violations of the provisions of various

laws with regard to sexual relations.

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In 1993 the Registered Partnership Act was enacted, making Norway the second

country in the world, after Denmark, to recognize same-sex civil unions officially. The

Partnership Act enabled two persons of the same sex to enter into a registered

partnership with one another. A registered partnership has the same legal consequences

as marriage, with the exception of the right to adopt children jointly. In recent years,

there have been strong movements by gay rights groups to repeal the provision against

joint adoption by same-sex couples. Since 2002, registered partners have been able to

adopt their partner's child. The same criteria that apply to stepchild adoption for

heterosexual spouses apply to stepchild adoption for registered partners. Although

foster-care regulations favor opposite-gender foster parents, same-sex couples may be

selected to serve as foster parents if the child welfare services find that this would be in

the best interests of the child involved. To be able to register as partners, at least one of

the parties must be a Norwegian citizen, and one or both of them must be resident in

Norway also citizenship of Denmark, Iceland, Sweden, Finland, and the Netherlands

qualifies on an equal footing with Norwegian citizenship.

In November 2007, the General Synod of the Evangelical-Lutheran Church of Norway

voted to permit the ordination of gay and lesbian priests in partnerships. The vote

overturned regulations made in 1995 and 1997 that permitted those in registered same-

sex partnerships to hold lay positions, but prohibited non-celibate homosexuals to be

ordained as clergy. In a statement released by its press office, the Church of Norway

explained that while the Synod confirmed that there is still a basis in the church in

support of not ordaining, appointing, or granting an Episcopal letter of recommendation

to gay clergy, there was not the same degree of consensus on this point as in prior years.

Although there is broad agreement in the Church of Norway on the usefulness of

registered partnerships as a legal framework for homosexual persons living together,

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attitudes in the Church are deeply divided on the ethical issue of homosexuality itself.

Responses to the vote were mixed and reflected the sharp divide within the Church,

with some bishops declaring that the vote would "create peace in the church and

security for homosexual clergy," while others believed the vote would be a "splitting

factor" and "lead to many feeling homeless in the church."

4.3 Sweden

Sweden legalized homosexuality as far back as in 1944. The age of consent is 15,

regardless of whether the sexual act is heterosexual or homosexual since equalization of

the gender preferences in Sweden since 1972. The Swedish Crime Law (SFS 1962:700),

chapter six ('About Sexual Crimes'), shows gender-neutral terms and does not

distinguish between sexual orientation. The only sexual act specifically mentioned in

the law is “intended indecent exposure” (SUS 1762:779).

Sweden became the first country in the world to remove homosexuality as an illness and

is considered to be one of the most gay-friendly countries in Europe and the world when

it comes to laws surrounding homosexuality.94 Due to the strong sense of secularism in

most of the country and government, Sweden today is seen as a campaigner of gay

rights. In 1979, a number of people called in sick with a case of "being homosexual," in

protest of homosexuality being classified as an illness. Within a few months, Sweden

became the first country in the world to de-classify homosexuality as an illness.95In

1987 a law against sex in gay saunas and prostitution was passed to mitigate the spread

94 "Eight EU Countries Back Same-Sex Marriage" Angus Reid Global Monitor 24 December 2006 95 Dielemans, Jennie; Quistbergh, Fredrik (2001) Motstånd. Bokförlaget DN. ISBN 9789175883670.

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of HIV.96 This law was repealed in 2004. Transvestism was declassified as an illness in

2008.97

Same-sex couples had the right to register their partnerships from 1995 onwards. These

partnerships had all the rights of marriages except as provided by sections 3 and 4 of the

law. All the provisions of a statute or any other legislation related to marriage or

spouses apply to registered partnerships and partners, except as under sections 3 and 4.98

The Swedish parliament voted to make same-sex marriages fully legal from 1st May,

2009.

4.4 Australia

Australia similar to India inherited Sodomy laws from the United Kingdom on account

of colonisation in 1788. These laws were retained in the criminal codes passed by the

various colonial parliaments during the 19th century, and by the state parliaments after

formation of the Federation.

Following the Wolfenden99 report, the Dunstan100 Labour government in South

Australia in 1972 introduced “consenting adults” as a private defence for homosexual

intercourse related altercations with the law. This defence was initiated as a bill and

repealed the state's sodomy law in 1975. The Campaign against moral persecution

during the 1970s raised the profile and acceptance of Australia's gay and lesbian

communities, and consequently other states and territories repealed their laws between 96 "HBT-historia" RFSL 97 Associated Press (20 November 2008) "Sweden: SM, Fetishes Not Mental illnesses 98 Registration of Partnerships, http://www.homo.se/o.o.i.s/1630 99 The Report of the Departmental Committee on Homosexual Offences and Prostitution (better known as the Wolfenden report, after Lord Wolfenden, the chairman of the committee) was published in Britain on 4 September 1957 after a succession of well-known men, including Lord Montagu, Michael Pitt-Rivers and Peter Wildeblood, were convicted of homosexual offences. 100 Donald Allan "Don" Dunstan, AC, QC (21 September 1926 – 6 February 1999) was a South Australian politician. He entered politics as the Member for Norwood in 1953, became state Labor leader in 1967, and was Premier of South Australia between June 1967 and April 1968, and again between June 1970 and February 1979

63

1976 and 1990. The exception was Tasmania, which retained its laws until the Federal

Government and the United Nations Human Rights Committee forced their repeal in

1997.

Male homosexuality was first decriminalised in the Australian Capital Territory in

1976, then Norfolk Island in 1993, following South Australia in 1975 and Victoria in

1981. At the time of legalization of the law, the age of consent, rape, defences, etc were

all set gender-neutral and equal. Western Australia legalised male homosexuality under

the Law Reform (Decriminalization of Sodomy) Act 1989; Western Australia in 2002

and New South Wales and the Northern Territory in 2003. Today Tasmania and

Queensland are the only Australian jurisdictions that still enforce sodomy laws.

In all states and territories, cohabiting same-sex couples are recognised as de facto

couples, and have the same rights as cohabiting heterosexual couples under state law.

Furthermore, same-sex couples have access to domestic partnership registries in New

South Wales, Tasmania and Victoria. Civil partnerships are performed in the Australian

Capital Territory. In 2011 the Queensland State Parliament successfully passed the Civil

Partnerships Act 2011 which allows for same sex couples who are Queensland residents

to enter into a civil partnership.101

Same-sex marriages are currently not permitted under Australian federal law. In 2004

the Marriage Act 1961 was amended in federal parliament to define marriage as a union

between a man and a woman and that any existing same-sex marriage from a foreign

country is not to be recognised as a marriage in Australia102.

101 "Civil Partnerships Bill 2011" 102 "Civil Marriage Act 1961" Attorney-General’s Department, Canberra

64

In 2004, amendments to the Superannuation Industry Supervision Act to allow tax free

payment of superannuation benefits to be made to the surviving partner on

interdependent relationships that included same sex couples103. The Labour Government

continued these progressive legislations and the Australian Parliament passed laws that

recognised same-sex couples in federal law, offering them the same rights as unmarried

heterosexual couples in areas such as taxation, social security and health, aged care and

employment. Thus since 1990 same-sex couples who can prove they are in a de facto

relationship have most of the rights of married couples.

In 2009, a same-sex marriage bill was introduced by the political party “Australian

Greens”, who pleaded with the government that the majority of Australians support

same-sex marriage and that the same-sex legislation be passed. Though the bill was

reviewed by the Senate Legal and Constitutional Affairs Committee,104 the Marriage

Equality Bill 2009 did not pass in the Australian Senate. The “Australian Greens” have

announced their intention to reintroduce a bill to legalise same-sex marriage. In 2011,

The Labour party agreed to a conscience vote to redefine the meaning of the word

marriage to allow for two persons of the same sex to enter into a contract of marriage, if

this conscience vote is passed as legislation it will legalise same sex marriages in

Australia.

4.5 United States of America

Sodomy laws in the United States are largely a matter of state rather than federal

jurisdiction and in the last quarter of the 20th century, 47 out of 50 states had repealed

anti-homosexual conduct laws, and 37 had repealed all sodomy laws. The remaining

103 Australian Parliament website 104 Inquiry into the Marriage Equality Amendment Bill 2009

65

anti-homosexual sodomy laws have been invalidated in 2003 by the U.S. Supreme

Court decision in Lawrence v. Texas.105

In 2003 the landmark judgment in Lawrence v. Texas, the United States Supreme Court

in a 6-3 ruling struck down the criminal prohibition of homosexual sodomy in Texas.

The court had previously addressed the same issue in 1986 in Bowers v. Hardwick,106

but had upheld the challenged Georgia statute, not finding a constitutional protection of

sexual privacy.

Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too

narrowly. It was held that intimate consensual sexual conduct was part of the liberty

protected by substantive due process under the Fourteenth Amendment. Lawrence had

the effect of invalidating similar laws throughout the United States that purport to

criminalize homosexual activity between consenting adults acting in private and also

invalidating laws against heterosexual sodomy based solely on morality concerns.

Prior to Lawrence v. Texas under the traditional common law, the existence of rights of

sexual partners were recognized only in, and through the marriage contract i.e. in

common law there was no stand-alone right of anyone to engage in sexual activity, be

they male or female, adult or minor. The right to engage in sexual activity was

derivative and the right derived from, and was viewed as a consequence of, the

existence of a marital contract. And by the common law understanding of a contract,

sexual activity was legal in any particular instance, only between the two contracting

parties in the contract. Thus, for the individuals who engaged in sex outside of their

particular marital contract, there was no legal basis or protection. Their activities were

frequently punished by laws prohibiting fornication, adultery and sodomy, among other 105 Lawrence v. Texas 539 U.S. 558 (2003) 106 Bowers v. Hardwick 478 U.S. 186 (1986)

66

crimes. The power to make these laws being based upon the common law idea that the

people have the inherent power to proscribe any conduct, they deemed as a matter of

public policy, not to be in the individual's or public's interest.

In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to

sodomy laws brought by a man who had been arrested, but was not prosecuted, for

engaging in oral sex with another man in his home. The Court rejected this challenge by

a 5-4 vote. The majority opinion recognized only the right to engage in procreative

sexual activity and the age old moral antipathy toward homosexual sodomy was enough

to argue against the notion that the framers of the constitution would have envisioned a

"right" to sodomy.

In Lawrence v. Texas the petitioners a medical technologist John Geddes Lawrence, and

street-stand barbecue vendor Tyron Garner were found having consensual anal sex in

Lawrence's apartment in the suburbs of Houston. They were arrested and charged with

violating Texas's anti-sodomy statute, the Texas "Homosexual Conduct" law. The

statute in Chapter 21, Sec. 21.06 of the Texas Penal Code, states that when someone

"engages in deviant sexual intercourse with another individual of the same sex," it

constitutes a Class C misdemeanour and a criminal offence. Strangely this penal

provision does not prohibit anal and oral sex between members of the opposite sex.

Lawrence and Garner exercised their right to a new trial before a Texas Criminal Court,

where they petitioned the court to dismiss the charges against them on Fourteenth

Amendment equal protection grounds, claiming that the law was unconstitutional since

it prohibits sodomy between same-sex couples, but not between heterosexual couples,

and also on the grounds of right to privacy. The case finally reached the Supreme Court

where the following issues were framed.

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(1) Whether the petitioners' criminal convictions under the Texas "Homosexual

Conduct" law which criminalizes sexual intimacy by same-sex couples, but not identical

behaviour by different-sex couples violates the Fourteenth Amendment guarantee of

equal protection of the laws;

(2) Whether the petitioners' criminal convictions for adult consensual sexual

intimacy in their home violate their vital interests in liberty and privacy protected by the

due Process Clause of the Fourteenth Amendment; and

(3) Whether Bowers v. Hardwick should be overruled.

The Supreme Court voted 6-3 to strike down the Texas law, with the majority saying it

violated the due process guarantee enshrined in the American Constitution. The Court

concluded that the ratio in Bowers v. Hardwick was not correct when it was decided and

that it should not remain a binding precedent and as such Bowers v. Hardwick was

overruled. The majority decision in Lawrence v. Texas found that intimate adult

consensual conduct was part of the liberty protected by the substantive component of

the Fourteenth Amendment's due process and held that the impugned Texas statute did

not legitimate the state to intrude into the personal and private life of the individual and

as such the court struck down the anti-sodomy law as unconstitutional.

The fallout of Lawrence v. Texas brought about the following issues. That even though

the case was not decided upon equal protection grounds, homosexual rights supporters

still hope that the majority decision will call into question other legal limitations on the

rights of homosexuals, including the right to state recognition of homosexual marriages,

and the right to serve in the military. In July 6, 2011 a federal appeals court barred

further enforcement of the U.S. military's ban on openly gay service members. President

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Barack Obama, Secretary of Defence Leon Panetta, and Chairman of the Joint Chiefs of

Staff Admiral Mike Mullen, certified this decision to the Congress on July 22, 2011,

which ended the ban against homosexuals in the Military service as of September 20,

2011.107

The Lawrence v. Texas case and its opinions bring to the forefront the fundamental

debates in constitutional theory which is relevant to all democratic nations. Though

some argue that the original intent of the framers of the Constitution should be limited

to only the central role in constitutional interpretation, others argue that the courts

should have a more active role in expanding concepts of liberty, striking down majority

laws which they believe necessary to protect unpopular minority groups and conduct.

Furthermore, there are those who consider the Founding Fathers' intent for the

constitution to be somewhat flexible to accommodate changing culture. Central to the

conflict over constitutional interpretation was the doctrine of substantive due process, a

doctrine that is supposed to protect rights not explicitly guaranteed in the Constitution

but still considered "implicit in ordered liberty." Many of the applications of this

doctrine have been the target of criticism that the justices have read their personal views

into the Constitution.

Lawrence v. Texas had the additional impact of invalidating age of consent laws that

differed based on sexual orientation. Soon after the Lawrence decision, the Supreme

Court ordered the State of Kansas to review its 1999 "Romeo and Juliet" law that

reduces the punishment for a teenager less than 18 years of age who has consensual

sexual relations with a minor no more than four years their junior, but explicitly

excludes homosexual conduct from the sentence reduction. In 2004 the Kansas Appeals

107 "Obama certifies end of military's gay ban" Reuters NBC News July 22, 2011

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Court upheld the law, but the Kansas Supreme Court unanimously reversed the lower

court's ruling on 21st October, 2005, in State v. Limon108. Finally the United States

Supreme Court directed the Kansas court to review the law in light of Lawrence v.

Texas to resolve the problem of consensual homosexual intercourse.

As the USA is a purely Federal Government system it is worth mentioning the States of

the USA which have repealed / struck down criminalization of homosexuality laws vis-

à-vis the States which still have laws against homosexuality109.

States which have repealed / struck down laws criminalizing homosexuality:

Alaska (repealed through legislative action 1980)

Arizona (repealed through legislative action 2001)

Arkansas (struck down by Jegley v. Picado, 80 S.W.3d 332 (Ark. 2001))

California (repealed through legislative action 1976)

Colorado (repealed through legislative action 1972)

Connecticut (repealed through legislative action 1971)

Delaware (repealed through legislative action 1973)

Georgia (struck down by Powell v. Georgia, 510 S.E.2d 18 (1998))

Hawaii (repealed through legislative action 1973)

Illinois (repealed through legislative action 1962)

Indiana (repealed through legislative action 1977)

Iowa (repealed through legislative action 1978)

Kentucky (struck down by Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992))

Maine (repealed through legislative action 1976)

Maryland (struck down by Williams v. State, 1998 Extra LEXIS 260) 108 280 Kan. 275, 122 P.3d 22 (2005) 109 http://www.fact-index.com/s/so/sodomy_laws_in_the_united_states.html

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Massachusetts (struck down by GLAD v. Attorney General, SJC-08539)

Michigan (In Michigan Organization for Human Rights v. Kelley 1990, a trial court

ruled Michigan's sodomy law unconstitutional under the state constitution, this ruling is

believed to apply to all state prosecutors; however, due to the fact that the judge's

decision has not yet been appealed, the current status of the law is unclear)

Minnesota (struck down by Doe v. Ventura, No. MC 01-489, 2001 WL 543734)

Missouri (repealed through legislative action in 2006)

Montana (struck down by Gryczan v. Montana, 942 P.2d 112 (1997))

Nebraska (repealed through legislative action 1978)

Nevada (repealed through legislative action 1993)

New Hampshire (repealed through legislative action 1975)

New Jersey (repealed through legislative action 1979)

New Mexico (repealed through legislative action 1975)

New York (struck down by People v. Onofre, 415 N.E.2d 936 (N.Y. 1980) and repealed

by the legislature in 2000)

North Dakota (repealed through legislative action 1973)

Ohio (repealed through legislative action 1974)

Oregon (repealed through legislative action 1972)

Pennsylvania (struck down by Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) and

repealed by the legislature in 1995)

Rhode Island (repealed through legislative action 1998)

South Dakota (repealed through legislative action 1977)

Tennessee (Struck down in Campbell v. Sundquist, 926 S.W.2d 250 (1996))

Vermont (repealed through legislative action 1977)

Washington (repealed through legislative action 1976)

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West Virginia (repealed through legislative action 1976)

Wisconsin (repealed through legislative action 1983)

Wyoming (repealed through legislative action 1977)

District of Columbia (City Council repealed law in 1995)

Puerto Rico (repealed through legislative action 2005)

States which have not yet repealed / struck down laws criminalizing homosexuality:

Alabama (sodomy acts illegal - affects only unmarried couples - Penalty 1 year/$2,000)

Florida (sodomy acts illegal - Penalty 60 days/$500)

Idaho (sodomy acts illegal - Penalty 5 years to life)

Kansas (Same-sex sodomy acts illegal – Penalty 6 months/$1,000)

Louisiana (sodomy acts illegal – Penalty 5 years/$2,000)

Mississippi (sodomy acts illegal - Penalty 10 years)

North Carolina (sodomy acts illegal - Penalty 10 years/discretionary fine)

Oklahoma (same-Sex sodomy acts illegal - Penalty 10 years)

South Carolina (sodomy acts illegal - Penalty 5 years/$500)

Texas (same-sex sodomy acts illegal - Penalty $500)

Utah (sodomy acts illegal - Penalty 6 months/$1,000)

Virginia (sodomy acts illegal - Penalty 1-5 years)

4.6 Japan

There are no explicit religious prohibitions against homosexuality in the traditional

religions of Japan (i.e. Shintoism110, Buddhism or Confucianism111) as homosexuality

110 A religion native to Japan, characterized by veneration of nature spirits and ancestors and by a lack of formal dogma 111 The ethical system of Confucius, the Chinese philosopher and teacher of ethics (551-479 BC), emphasizing moral order, the humanity and virtue of China's ancient rulers, and gentlemanly education

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among Buddhist monks or samurai112 was traditionally encouraged. Sodomy was first

criminalized in Japan in 1873, in the early Meiji era, to comply with the newly-

introduced beliefs of Western Culture. But this provision was repealed seven years later

by the Penal Code of 1880113. Since then, Japan has had no laws against homosexuality.

Thus, sex among consenting adults, in private, regardless of sexual orientation and/or

gender, is legal under Japanese law.

Prostitution is illegal under the 1958 "Prostitution Prevention Act" under the National

Criminal Code. However, since homosexuality is not seen as sexual conduct in the

National criminal code but rather defined as "seikou-ruiji-kōi" (similar to sexual

conduct), homosexual prostitution is often dealt with under other local laws.

The Japanese Self Defence Force (SDF) does not formally bar volunteers on the basis of

sexual orientation but in 1992 a representative for the SDF stated that there are no

homosexuals in the Defence Force, suggesting that openly gay servicemen or lesbian

servicewomen could be punished for their sexuality. So far, however, there have been

no open instances of gay-bashing or harassment in the armed forces against gay or

lesbian servicemen or women.

Japanese civil rights laws do not include protection from discrimination on the basis of

sexual orientation or gender identity. However, in 1997 the group OCCUR (Japan

Association for the Lesbian and Gay Movement) won a court case against a Tokyo

government policy that barred gay and lesbian youth from using the "Metropolitan

House for Youth." While the court ruling does not seem to have extended to other areas

of government sponsored discrimination, the city government of Tokyo has since

passed legislation banning discrimination in employment based on sexual identity.

112 A professional warrior belonging to the Japanese feudal military aristocracy 113http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf

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In 1990 members of OCCUR (Japan Association for the Lesbian and Gay Movement)

staying in a public hostel were harassed by other guests from a youth football club, a

Christian youth group, and a female choir group. OCCUR asked the other group leaders

to stop the harassment. The leader of the Christian youth group, refused, citing

Leviticus 20:13 for condemning same-sex relationships. When OCCUR asked for the

use of the hostel again, the request was denied by both the hostel and the Tokyo

Metropolitan Government Board of Education and OCCUR sued Tokyo prefecture for

compensation for damages and the affirmation of the right to use the hostel or any

public facility. After a six year court battle, the Tokyo High Court ruled in favour of

OCCUR. In a landmark decision by Tokyo High Court in 1997, protection from

discrimination on the basis of sexual orientation for access to public accommodations

was stated as a human right, which the government must protect. In 2005, Japanese

politician Kanako Otsuji was instrumental in bringing about a legislative change that

allows same-sex couples to rent housing from the Osaka Prefectural Housing

Corporation. This was a privilege previously limited to married couples. Since same-sex

marriages are not recognised under Japanese law, gay couples in Osaka had previously

found it impossible to rent public housing.

In terms of transgender issues, the Japan's Health and Welfare Ministry modified its

policy in 1998 to allow doctors in Japan to perform gender-reassignment surgeries even

on minors with the parents consent. The specific provisions of the Act Regarding

Special Treatment of the Gender of Persons with Gender Identity Disorder are as under.

Article 2 - Definitions

In this Act, “person with gender identity disorder” means a person who, despite having

a clear biological gender, is persistently convinced that they are mentally of another

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gender (“other gender”), who has a desire to physically and socially conform

themselves to the other gender, and with respect to whom two or more physicians

having the knowledge and experience necessary to properly diagnose this [condition]

have given corresponding diagnoses based on generally accepted medical viewpoints.

Article 3 - Decision to Change Gender Treatment

A family court may decide to change the gender treatment of a person with gender

identity disorder, upon that person’s request, who;

1. Is twenty years of age or older;

2. Is not presently married;

3. Does not presently have children;

4. Does not have reproductive glands or has permanently lost the function of the

reproductive glands; and

5. Has adopted a bodily appearance which closely resembles that of the other gender in

the area of the genital organs.

In 2008, a law was passed allowing transgender people who have gone through sex

reassignment surgery to change their legal gender114.

The major Japanese political parties do not express much public support for GLBT

rights issues. In 1994 Foreign Minister Koji Kakizawa stated in “Shokun!” magazine

that he was opposed to his party simply calling themselves the Liberals, because it

might lead people to believe that they supported homosexuals.

Both the ruling Liberal Democrats and Komei115 pledge to oppose all discrimination

that women face, but do not address the issue of sexual orientation. Likewise, the major

114 What the Diet’s been up to lately: revising the law of transgendered people 115 Emperor Kōmei, 121st imperial ruler of Japan.

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opposition party, the Democratic Party of Japan only offers a broad endorsement of

equal opportunity. Yet, even the minor political parties have been reluctant to publicly

endorse LGBT rights. The defunct Japanese Green Party Rainbow and Green refused to

address the issue, although as a part of the "Global Greens" movement they technically

had endorsed a broad human rights agenda that included gay rights. The Liberal League

homepage states that it opposes "any form of discrimination". Likewise the Japanese

Communist Party also avoids the issue. In 2001 The Council for Human Rights

Promotion, under the Ministry of Justice, recommended that sexual orientation be

included in the nation's civil rights code, but the Diet116 has refused to take action. In

2003 Aya Kamikawa became the first openly transgender politician to be elected to

public office in Japan, Tokyo's municipal assembly. In 2004 a special law went into

effect allowing transgender people to change genders on family registers.

The Japanese Department of Registration received the order to confirm that couples

applying for marriage licenses are of different sexes, and if they are not, to decline the

application. Same-sex marriages, civil unions and domestic partnerships performed in

other jurisdictions have no legal standing in Japan. However in 2009 “Japan Today”

reported that the Justice Ministry plans to enable Japanese nationals to marry same-sex

partners who have citizenship in countries where gay marriage is legally approved and

that the ministry will issue certificates necessary for such marriage of Japanese citizens

and foreigners. This is seen by many as a first step toward eventual legalization of gay

marriage in Japan.117

After having covered the international perspective on the issue of law and

homosexuality with a special focus from the human rights angle and also the treatment

116 Japanese legislature 117 "Japan allows its citizens same-sex marriage abroad". Agence France-Presse. Google. 2009-03-27. http://www.google.com/hostednews/afp/article/ALeqM5imtwjW1jvMoCTXZaahFbK3ClE9ZA

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of homosexuality both generally and as a crime in the first world and highly developed

countries the next chapter will cover the Indian scenario i.e. law and homosexuality

from the Constitutional viewpoint to the Naz foundation case.

4.7 Indian Perspective – Constitution of India

The starting point of law in the Indian sub-continent is the mandate given to the citizens

of India in the Constitution. The Constitution of India is a complex document which

empowers its people with the true spirit of Democracy and equality. Equality is the

cornerstone of the Constitution and as such it has to be respected and fought for at any

cost without which it would be only a “word” left to be interpreted by fundamentalist

individuals and organisations in any which way they like. The Constitution incorporates

inter-alia high ideals the true concept of equality and as such it is to be guarded against

pseudo-morality and fundamental agenda. The relevant extracts on the right to equality

which every citizen of India has been guaranteed are reproduced below.

Preamble: We, The people of India, having solemnly resolved to constitute India into a

Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens:

Justice, social, economic and political; Liberty of thought, expression, belief, faith and

worship; Equality of status and of opportunity; and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the

nation.

Article 13: Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of

this Constitution, in so far as they are inconsistent with the provisions of this Part,

shall, to the extent of such inconsistency, be void

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(2) The State shall not make any law which takes away or abridges the rights conferred

by this Part and any law made in contravention of this clause shall, to the extent of the

contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance,

order, bye-law, rule, regulation, notification, custom or usages having in the territory of

India the force of law; laws in force includes laws passed or made by Legislature or

other competent authority in the territory of India before the commencement of this

Constitution and not previously repealed, notwithstanding that any such law or any part

thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under

Article 368 Right of Equality

Article 14: of the Constitution of India states as follows: Equality before law: The State

shall not deny to any person equality before the law or the equal protection of the laws

within the territory of India Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth.

Article 32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto

and certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part

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(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and

(2), Parliament may by law empower any other court to exercise within the local limits

of its jurisdiction all or any of the powers exercisable by the Supreme Court under

clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution

Article 226: Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any

person or authority, including in appropriate cases, any Government, within those

territories directions, orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibitions, quo warranto and certiorari, or any of them, for the

enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising

jurisdiction in relation to the territories within which the cause of action, wholly or in

part, arises for the exercise of such power, notwithstanding that the seat of such

Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or

stay or in any other manner, is made on, or in any proceedings relating to, a petition

under clause (1), without

(a) Furnishing to such party copies of such petition and all documents in support of the

plea for such interim order; and

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(b) giving such party an opportunity of being heard, makes an application to the High

Court for the vacation of such order and furnishes a copy of such application to the

party in whose favour such order has been made or the counsel of such party, the High

Court shall dispose of the application within a period of two weeks from the date on

which it is received or from the date on which the copy of such application is so

furnished, whichever is later, or where the High Court is closed on the last day of that

period, before the expiry of the next day afterwards on which the High Court is open;

and if the application is not so disposed of, the interim order shall, on the expiry of that

period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of

the power conferred on the Supreme Court by clause (2) of Article 32.

4.7.1 Interpretation of Key Statements on Equality in the Indian Constitution

(a) “Preamble: …and to secure to all its citizens: Justice, social, economic and

political”. The Indian Constitution in its preamble states that justice social, economic

and political is guaranteed to all its citizens. Considering this strong statement, it would

be definitely wrong to assume that a creature of society despite his / her sexual

inclination and preference sans mens rea is not equal to the rest of the citizens of the

Country. Society is in a state of flux and it keeps on changing and evolving everyday

and if there is no adaption to change then society as we see it today will die a premature

death resulting in an uncivilized era catapulting us into the dark ages which man has

suffered through over the millennia. It is of great importance that justice is meted out to

all irrespective of human preferences and genders and as such this high principle of

equality embedded in our constitution should be upheld with utmost of care and belief.

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(b) “Equality of status and of opportunity; and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the

nation”. Once again the Constitution stresses on equality of status, which only reiterates

that even if a person is labelled in a particular manner by society because of society’s

lack of understanding of the a particular individuals nature and peculiarities, due to an

outdated and orthodox outlook which is largely prevalent in the ignorant mindset of

overzealous people to prove their pseudo-morality, it does not construe that the

individual is to be treated in any manner different from the rest of the citizens of the

Country. So also the dignity of the individual which again is specifically mentioned in

the Constitution cannot be bartered away on moralistic and religious grounds. The ideal

of equality of status and dignity of the individual is a Constitutional guarantee and it is

to be upheld for all time.

(c) “Article 13: All laws in force in the territory of India immediately before the

commencement of this Constitution, in so far as they are inconsistent with the

provisions of this Part, shall, to the extent of such inconsistency, be void”. It is

interesting to note that article 13 clearly states that all past laws which are inconsistent

with the provisions of Part-III of the constitution are to be treated as void. If properly

analyzed the preamble of the Constitution confers equality and dignity for all its citizens

and as such redundant and outmoded laws of a bygone colonial era which deprive the

citizen equality and dignity should ideally be scrapped. Unfortunately we see that many

laws from the colonial era with the mindset of a colonial jurisprudence are still active in

India. These same outdated laws are a direct contrast to ideals of equality and dignity

which the founding fathers of this nation wanted most amongst its liberated peoples.

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(d) “Article 14: of the Constitution of India states as follows: Equality before law:

The State shall not deny to any person equality before the law or the equal protection of

the laws within the territory of India Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth”. The equality before law and the equal

protection of laws without any discrimination with regard to religion, race, caste, sex

and place of birth is to be further expanded in a changing society to include individual

preference and sexual orientation as the founding fathers would have definitely meant

equality of all types without limiting the ideal of equality and dignity to only a larger

portion of society by ignoring the minority. In fact minorities have been granted a

special status by the Constitution and logically a sexual minority should also be part of

the main stream of society.

(e) “Article 32 and 226 are basically remedies for enforcement of rights conferred

by Part-III of the Constitution”. These guarantees have been given to every citizen of

India to approach the Courts of law to enforce their rights irrespective of their

preference in matters sexual or otherwise. As long as an individual is a citizen of India

and the individual has not committed a crime (though certain acts are perceived as

crimes by many due to the influence of a foreign criminal jurisprudence on our society),

there is no reason whatsoever to deny the individual the recourse to the courts and

justice which is our right as guaranteed by the Constitution.

4.8 Indian Perspective – Criminal Laws

Despite India having a religious and historic tolerance of homosexuality, bisexuality

and transgender, India has a very stringent law which criminalizes homosexual

intercourse as an offence without any mens rea on the part of the purported offender.

This criminal jurisprudence adopted from the colonial era is in total contravention of the

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fundamental rights guaranteed by the Indian Constitution as well as against human

rights.

4.8.1 Interpretation - Section 377 of the Indian Penal Code 1860

Section 377 of the Indian penal Code 1860 states:

Unnatural offences: Whoever voluntarily has carnal intercourse against the order of

nature with any man, woman or animal, shall be punished with [imprisonment for

life]118, or with imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section.

The section lays down that any sexual act by an individual which is voluntary and

against the order of nature is a crime. The vague wording “carnal intercourse against

the order of nature” incorporated in section 377 of the IPC has been interpreted to mean

that sexual intercourse is an activity by which reproduction and procreation is

sanctioned and that sexual relations should be limited between a man and women for

the sole purpose of bringing forth children and homosexual behaviour or any other

sexual behaviour which does not produce children is considered criminal. That sexual

intercourse is for pleasure and also for psychological dependence of people has not been

considered as an alternative. The section clearly brings out the bias of its framers as the

fundamental concepts of equality, dignity and individual preferences and so also the

modern and ever changing trends in society, genetics, scientific research, psychology

and sociology were never considered when making this law against homosexuality. The

118 Substituted by Act 26 of 1955, S.117 and Sch., for “transportation for life” (w.e.f. 1-1-1956)

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law was made in 1860 when the science of psychology and genetics was non-existent

and man’s perception of nature came from an understanding of nature at that relevant

time coupled with his religious indoctrination. Thus the question before us is whether

this law is still valid after 160 odd years of its promulgation.

4.8.2 History of Section 377 of IPC

Section 377 was introduced by Lord Macaulay in 1860 as a part of the Indian Penal

Code. Since then the judiciary has struggled with the question of how to determine what

exactly 'carnal intercourse against the order of nature' means. The meaning of Section

377 in 1884 was restricted to anal sex and by 1935 it was broadened to include oral sex

and as such the judgments in contemporary India have broadened it to also include thigh

sex. Section 377 is not merely a law about anal sex alone, but applies to homosexuality

in general. The lack of a consent-based distinction in the offence has made homosexual

sex synonymous to rape and equated homosexuality with sexual perversity.119

In 1931 the Court in Khanu vs Emperor120 laid down that, “the natural object of sexual

intercourse is that there should be the possibility of conception of human beings, which

in the case of coitus per os (oral intercourse) is impossible”. It then went on to define

sexual intercourse as “the temporary visitation of one organism by a member of the

other organism, for certain clearly defined and limited objects. The primary objective of

the visiting organism is to obtain euphoria by means of a detent of the nerves

consequent to the sexual crisis. But there is no intercourse unless the visiting member is

enveloped at least partially by the visited organism, for intercourse connotes

119 Alok Gupta, Economic and Political Weekly, November 18, 2006, pp. 4815-4823. 120 Khanu v. Emperor AIR 1932 Cal 487

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reciprocity. Looking at the question in this way it would seem that the sin of Gomorrah

is no less carnal intercourse than the sin of Sodom.”121

This idea of sex without the possibility of conception has been used by the judiciary

over the last 160 years to characterize homosexuality as a 'perversion', 'despicable

specimen of humanity', 'abhorrent crime', 'result of a perverse mind' and 'abhorred by

civilized society'. What judicial interpretation did was to include both acts of consensual

sex as well as acts of sexual assault under its “catch all” category of 'carnal intercourse

against the order of nature'. It is also important to note that technically speaking, Section

377 does not prohibit homosexuality or criminalize homosexuals as a class but targets

instead sexual acts. However the fact that these sexual acts are mistakenly associated

with only homosexuals has made homosexuals far more vulnerable to prosecution under

the law than heterosexuals.

4.8.3 The Offence

Unnatural offences are dealt with under Section 377 of the Indian Penal Code, 1860.

The section reads as follows –“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.”

Explanation “Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section.”

The first word that comes to prominence is ‘voluntarily’, which is defined in Sec.39 of

the IPC as intending to cause it, or by means which, at the time of employing those

121 “The hated Section 377 of the Indian Penal Code”, 4 February, 2008, International Humanist and Ethical Union, http://www.iheu.org

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means, the person knew or had reason to believe to be likely to cause. Applying this

definition we deduce that the act of committing an unnatural offence must be

accompanied by intention. The words ‘…have carnal intercourse’ suggest that this

offence is punishable only if the act is committed, that is an actus reaus followed by the

mens rea must be present. ‘Carnal intercourse’ leaves outside of its ambit sexual

intercourse in the normal sense between humans of opposite sex i.e. any sexual act

which is not of the usual penile-vaginal penetration of male-female sexual intercourse.

Also, carnal intercourse may not be done with a man, woman or animal. There are four

different forms of intercourse which are strictly prohibited by Sec. 377:

Penile-anal penetration

Finger-anal penetration

Finger-vaginal penetration

Object-vaginal penetration122

This establishes the rule criminalizing sodomy in India. The explanation to the section

clarifies that penetration in any orifice is enough to constitute the offence, and so the

full act of intercourse or even the point of reaching climax is not required to constitute

the offence. The true meaning that emerges is that penetration per anum (anal) is only

punishable, but coitus per os or the act of inserting the penis into another’s buccal

cavity (mouth) has also treated as an unnatural offence in cases like Khanu v. Emperor

which was later reaffirmed in Lohana Vasantlal Devchand v. The State123. In Calvin

Francis v. State of Orissa124, the High Court of Orissa was of the opinion that the act of

placing the male organ inside another’s mouth would amount to an unnatural offence

122 K.D. Gaur, “Commentary on The Indian Penal Code”, 1st Edition, 2006, p.1207 123 Lohana Vasantlal Devchand v. The State, 1968 Cr LJ 1277 124 Calvin Francis v. State of Orissa 1992 (2) Crimes 455 (Ori)

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because it would amount to an ‘initiative act of sexual intercourse for the purpose of

satisfying the sexual appetite’.

One important omission in Section 377 is should there be respite if an unnatural offence

is committed with the consent of the other. Unfortunately respite does not exist and

even consensual sex between same genders is immaterial in the commission of an

unnatural offence in India.125 That is to say, that even consensual sodomy is illegal, as

given in the case of Jagjir Singh v. State126.

Furthermore, the offence is cognizable, non-bailable, non-compoundable and triable by

a magistrate of first class. Mere intention to commit the crime is not enough to convict

the accused. In a trial of an accused under this section, the prosecution must prove that

the accused had carnal intercourse with a man, woman or an animal; such intercourse

was against the order of nature; the act was done voluntarily by the accused; and

penetration had occurred127.

Section 377 also recognises bestiality which is sexual intercourse either by man or

woman with an animal. Another definition is “Sexual activity between a human and an

animal, which some authorities restrict to copulation between a human and an animal of

the opposite sex.” Interestingly, the definition of sodomy also includes bestiality hence

sodomy is not only sexual intercourse between two humans of the same sex, but also a

human and an animal of opposite gender128. The reason for including bestiality within

the definition of unnatural offences as contained in Section 377 is not clear. It may be

inferred from the title of the section that the drafters of the Code intended to penalize all

125 SK Sarvaria (Ed.) “Indian Penal Code”, R.A. Nelson, Volume 3, 9th Edition, 2003, p.3738 126 Jagjir Singh v. State, 1969 PLR 34 (SN). 127 Y.V. Chandrachud (Rev.), “The Indian Penal Code”, Ratanlal & Dhirajlal, 29th Edition, 2nd Reprint, 2004, p.1818 128 Black's Law Dictionary” (8th ed. 2004), ‘bestiality’, available on: www.westlaw.com

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unnatural offences, whether carnal intercourse was committed against a man, woman or

an animal.

4.8.4 A Brief History of Persecution of Homosexuals in India

The criminalization of homosexuality condemns an entire class of people to live in the

shadow of harassment, exploitation, humiliation, and cruel and degrading treatment at

the hands of the law enforcement machinery; further it denies them full moral

citizenship129. Proof of such harassment and exploitation is seen from the various

incidents that keep getting reported in the newspapers on a regular basis, but that never

really make it to the headlines. Let us consider some of these incidents as case studies

In August 2004, the newspapers in Delhi were full of details of the double murder at

Anand Lok, which involved the murder of two gay men in the posh South Delhi house

of one of the victims. The media was quick to pounce upon the “unsafe lifestyle” of the

victims, and instead of mourning the death of two people, began detailed reports of the

“dark underbelly of Delhi’s nightlife”. Screaming headlines such as “Gay Murders Tip

of Sordid Sleazeberg”130 became daily fare; newspaper reports talked endlessly of the

promiscuous and unsafe lifestyles of gay people in the city, and how Pushkin Chandra,

one of the murder victims, was part of a “homosexual syndicate”131.

Like all laws, Section 377 was used both inside and outside the courtroom. In 2006, the

Lucknow police entrapped five gay men by tracking them over the internet and then

arresting them under Section 377. For years, police have used Section 377 to extort,

threaten, intimidate and harass LGBT people. Commenting on how law-enforcers can

129 Kalpana Kannabiran, “India: From ‘Perversion’ to Right to Life with Dignity”, The Hindu, July 6th, 2009 130 “Gay Murders Tip of Sordid Sleazeberg”,The Hindustan Times, 17 August, 2004. 131 Siddharth Narrain, “The Queer Case of Section 377, Sarai Reader, 2005, p.466.

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misuse such offences, Amartya Sen observed that the harm done by such an “an unjust

law” can, therefore, “be far larger than would be indicated by cases of actual

prosecution”.132

In 2008 five hijras133 were caught by the police and taken to the Girinagar police

station. In the station, the hijras were beaten up by the police including the Assistant

Commissioner of Police (ACP). False charges under section 341 (wrongful restraint)

and 384 (extortion) of the IPC (Indian Penal Code) were brought upon them. They were

produced before the magistrate and were sent into judicial custody. All through this

process the hijras were handled by male policemen and no medical treatment was given

to the injured hijras in police or judicial custody. Upon receiving a call from one of the

arrested hijras, crisis team members of Sangama134 rushed to the police station, but were

abused by the police, and subjected to physical and verbal assault. Though they had

their organizational ID cards with them, it did not prevent them from being illegally

assaulted and detained by the police. All of them were accused of offences punishable

under Section 143 (unlawful assembly), 145 (joining unlawful assembly ordered to be

dispersed), 147 (rioting) and 353 (obstructing government officials in performing their

duty) of the IPC. They were produced before the magistrate and were sent into judicial

custody. Even though human rights activists and lawyers from various organizations

gathered outside the police station to negotiate release of the Sangama members their

attempts were unsuccessful.135

132 Shohini Ghosh, “India: End to Unnatural Exclusion”, Hindustan Times, New Delhi, July 2nd, 2009. 133 A"third gender" in Pakistan, India and Bangladesh 134 Sangama is a human rights organization that has been working among hijras and other sexual minorities on issues of their rights and health 135 Letter written by the Registrar of Karnataka Human Rights Commission to the Police Commissioner, dated 26.10.2008, available on the blogsite of Campaign for Sexworkers and Sexual Minorities Rights. http://sangamablog.blogspot.com/

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In 2005 there was a reported beheading of a young Indian man by a male co-worker

who apparently told police he “was ashamed” after the two had sex.136 The Halol police

arrested the youth allegedly involved in the murder of his associate.

The other disturbing trend increasingly apparent is that police pretend to arrest

homosexual men from cruising areas, only to take them either to police vans or to the

police station to force them to provide the police with "sexual favours". Male sex

workers (MSW) are especially vulnerable to this, since usually the beat constables know

who they are. This sexual exploitation often turns violent and sometimes results in gang

rape should the person arrested refuse the sexual favours. This leads to depression and

other psychological/emotional complications and physical trauma and haemorrhage

from the torture and abuse.137

4.8.5 Cases under Section 377 of IPC

The courts have dealt with a variety of case law in which they have applied section 377

and its ingredients and set out its scope. The ratios of certain important cases are as

follows.

Nowshiriwan Irani v. Emperor138

The Court held that the offence was not committed and that no attempt to commit the

offence could be interpreted since there had been no penetration.

Lohana Vasantlal Devchand v. The State

136 “India: IGLHRC Responds to Reports of Gay Man Beheaded After Sex”, press release, IGLHRC – International Gay and Lesbian Human Rights Commission Website on 31/01/2005 137 Mr. Aditya Bondyopadhyay, “State-Supported Oppression and Persecution of Sexual Minorities”, NGO Briefing, United Nations Commission on Human Rights April 8, 2002. 138 Nowshiriwan Irani V. Emperor AIR 1934 Sind: 37 CrLJ 728.

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This dealt with whether the act of placing the male sex organ inside the mouth of the

victim and ejaculating could be termed as carnal intercourse. The facts included that

such act had occurred after a boy could not bear penetration in the anus by the accused.

After analysing the definition of sodomy in English law and comparing it to section

377, the Court reached the decision that the accused were liable for committing

unnatural offence. This case substantially recognised oral intercourse as a form of carnal

intercourse punishable under Section 377.

State Govt. Of NCT of Delhi V. Sunil139

In this case two men took away a four year old girl from her house and committed rape

and sodomy on her, which eventually led to her death. Medical evidence showed that

the two accused had indulged in anal intercourse with the girl; hence they were also

convicted of the offence under Section 377.

4.9 The Beginning of the Decriminalization of Homosexuality

Before we start this section which deals with the famous Naz foundation case it is

pertinent to mention that in Allan John Waters and Others v. State of Maharashtra140

case by way obiter dictum the High Court of Bombay stated the following with regard

to a case under section 377 of IPC:

“There is consistent view in this country, and it appears that the opinion of the English

Courts has not been followed in this country, and any type of intercourse, which is

against the order of nature, and where there is penetration, whether in a natural orifice

or a created orifice within the human body of another, would constitute an offence

under Section 377. Here, we would also point out that such an act is an offence under

139 State Govt. Of Nct Of Delhi V. Sunil 2001 Cri.L.J 504. 140 http://bombayhighcourt.nic.in/data/judgements/2008/CRAPEAL47606.pdf

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Section 377 where consent is immaterial. There are lots of changes taking place in

social milieu, and lots of people are having different sexual preferences, which are even

not considered to be unnatural. Therefore, it is high time that the provision of law,

which is made more than a century before, is looked at again. “

The landmark judgment of the Delhi High Court decriminalizing consensual

homosexual intercourse is discussed here. The case is relevant as the new trends in

human rights, justice and sociological evolution, have made the judiciary realise that

section 377 inter-alia contravenes basic human justice and also the fundamental rights

conferred by the Constitution on the citizens of India.

4.9.1 The Incident

On 7th July 2001 the city police raided a park in Lucknow frequented by the MSM141

community. The raid was on an FIR filed by a person who alleged that he had been

sexually assaulted. The raid led to the arrest of a worker of the Bharosa Trust, a NGO

working with the MSM community in the area of HIV/AIDS prevention. The police

raided the offices of Bharosa and Naz Foundation and seized materials from there,

arresting nine people in all. The media sensationalised the arrests, describing the police

action as the busting of a sex racket.

The arrested persons were remanded to judicial custody on 8th July 2001; they were

allegedly beaten up and their offices sealed. They were charged under sections 377

(unnatural offences), 292 (sale of obscene books, etc.), 120b (criminal conspiracy) and

109 (abetment) of the IPC; under section 60 of the Copyright Act; and section 3 and 4

of the Indecent Representation of Women Act. Their bail applications were rejected

141 Men who have sex with men

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twice, first by the chief judicial magistrate (CJM) and then by the district sessions judge

of Lucknow. The CJM denied bail, stating that “the work of the accused is like a curse

on society”. The sessions judge upheld the arguments of the prosecution, which alleged

that the accused are “a group of persons indulging in these activities and are polluting

the entire society by encouraging young persons and abetting them for committing the

offence of sodomy; that the investigation is still under progress; that the offences are

being committed in an organized manner”. The appeal for bail was moved again on 8th

August 2008 in the Lucknow High Court by Indira Jaising and Anand Grover of the

group Lawyers Collective. It was only on 16-17th August 2008 that the accused were

granted bail only after the public prosecutor stated that no link between the NGO’s and

the incident of 7th July 2001 could be established.

This incident alarmed and disturbed the homosexual community in India who realised

that the threat of Section 377 being used as a means of discrimination was a concern

that needed to be urgently addressed. The petition filed in the Delhi High Court by the

Naz Foundation in 2001 stated, therefore, for the reading down of this law. It asked that

private consensual sex between adults be decriminalised. The thrust of the petition was

to challenge the law as a violation of the right to privacy; to question the legislative

intent as being arbitrary and outdated and to challenge the law as being discriminatory

on the grounds of sexual orientation.

4.9.2 Naz Foundation142 v. Government of NCT of Delhi143

In 2006, the Supreme Court ordered the Delhi High Court to reconsider the

constitutional validity of Section 377. The Naz Foundation petition was supported by

Voices against 377, comprising 12 organizations across the country while it was being 142 An NGO related to HIV/Aids issues 143 http://www.nazindia.org/judgement_377.pdf

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opposed by the government of Delhi and others. The position of the government

(represented by the Ministries of Health and Law) was in conflict with other

governmental affiliates who demanded decriminalization of homosexuality. In 2001

Naz Foundation filed a petition in the Delhi High Court asking for Section 377 to be

‘read down’ by decriminalizing consensual sex among adults. In September 2003, the

Government insisted on retaining Section 377 on the grounds that ‘Indian society’s

disapproval of homosexuality was strong enough to justify it being treated as a criminal

offence even where adults indulge in it in private’.144

The writ petition filed by Naz Foundationas was as a Public Interest Litigation to

challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860

(IPC), which criminally penalizes what is described as ‘unnatural offences’, to the

extent that the said provision criminalizes consensual sexual acts between adults in

private. The challenge was founded on the plea that Section 377 IPC, on account of it

covering sexual acts between consenting adults in private infringes the fundamental

rights guaranteed under Articles 14145, 15146, 19147 and 21148 of the Constitution of

India. Limiting their plea, the petitioners submitted that Section 377 IPC should apply

only to non-consensual penile non-vaginal sex and penile non- vaginal sex involving

minors.

The writ petition was dismissed by the High Court in 2004 on the ground that there is

no cause of action in favour of the petitioner and that such a petition cannot be

entertained to examine the academic challenge to the constitutionality of the legislation.

The Supreme Court vide order dated 3rd February 2006 in Civil Appeal No. 952/2006 144 Shohini Ghosh, “India: End to Unnatural Exclusion”, Hindustan Times, New Delhi, July 2nd, 2009. 145 Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 146 Prohibition of discrimination on grounds of religious, race, caste, sex or place of birth 147 Protection of certain rights regarding freedom of speech, etc 148 Protection of life and personal liberty

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set aside the said order of the Court observing that the matter does require consideration

and is not of a nature which could have been dismissed on the aforesaid ground. The

matter was remitted to the Delhi High Court for fresh decision.

4.9.3 Issues

The Delhi High Court framed the following issues in the case.

(a) Whether Section 377 is violative of Article 14

That Section 377’s legislative objective of penalizing ‘unnatural sexual acts’ has no

rational nexus to the classification created between procreative and non- procreative

sexual acts, and is violative of Article 14 of the Constitution of India. Section 377’s

legislative objective is based upon stereotypes and misunderstanding that is outmoded

and enjoys no historical or logical rationale which renders it arbitrary and unreasonable.

The Court made it explicit that where an Act is arbitrary, it is implicit in it that it is

unequal both according to political logic and constitutional law and is, therefore,

violative of Article 14.

According to Union of India, the object of Section 377 IPC is to protect women and

children, prevent the spread of HIV/AIDS and enforce societal morality against

homosexuality. It is clear that Section 377 IPC, whatever its present pragmatic

application, was not enacted keeping in mind instances of child sexual abuse or to fill

the lacuna in a rape law. It was based on a conception of sexual morality specific to

Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative

object of protecting women and children has no bearing in regard to consensual sexual

acts between adults in private.

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The second legislative purpose elucidated is that Section 377 IPC serves the cause of

public health by criminalising the homosexual behaviour. As already held, this

purported legislative purpose is in complete contrast to the averments in NACO’s

affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely

contributes to pushing the infliction underground; make risky sexual practices go

unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention

efforts.

Lastly, as held earlier, it is not within the constitutional competence of the State to

invade the privacy of citizen’s lives or regulate conduct to which the citizen alone is

concerned solely on the basis of public morals. The criminalisation of private sexual

relations between consenting adults absent of any evidence of serious harm deems the

provision’s objective both arbitrary and unreasonable. The states interest ‘must be

legitimate and relevant’ for the legislation to be non-arbitrary and must be proportionate

towards achieving the state interest. If the objective is irrational, unjust and unfair,

necessarily classification will have to be held as unreasonable. The nature of the

provision of Section 377 IPC and its purpose is to criminalise private conduct of

consenting adults which causes no harm to anyone else. It has no other purpose than to

criminalise conduct which fails to conform to the moral or religious views of a section

of society. The discrimination severely affects the rights and interests of homosexuals

and deeply impairs their dignity.

(b) Whether Section 377 is in violation of Article 15

International Covenant on Civil and Political Rights (ICCPR) recognises the right to

equality and states that, ‘the law shall prohibit any discrimination on any ground such as

race, colour, sex, language, religion, political or other opinion, national or social region,

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property, birth or other status’. In Toonen v. Australia149, The Human Rights

Committee, while holding that certain provisions of the Tasmanian Criminal Code

which criminalise various forms of sexual conduct between men violated the ICCPR,

observed that the reference to ‘sex’ is to be taken as including ‘sexual orientation’.

Similarly, in Corbiere v. Canada150, the Canadian Supreme Court identified the thread

running through the distinction between sex and sexual orientation are analogous

grounds and stated that what these grounds have in common is the fact that they often

serve as the basis for stereotypical decisions made not on the basis of merit but on the

basis of a personal characteristic that is immutable or changeable only at unacceptable

cost to personal identity.

Therefore, sexual orientation is a ground analogous to sex and that discrimination on the

basis of sexual orientation is not permitted by Article 15. Further, Article 15(2)

incorporates the notion of horizontal application of rights. In other words, it even

prohibits discrimination of one citizen by another in matters of access to public spaces.

Therefore, discrimination on the ground of sexual orientation is impermissible even on

the horizontal application of the right enshrined under Article 15.

(c) Whether it violates Article 21

Blackmun, J. in his dissent in Bowers, Attorney General of Georgia v. Hardwick,151

made it clear that the much - quoted ‘right to be let alone’ should be seen not simply as

a negative right to occupy a private space free from government intrusion, but as a right

to get on with your life, your personality and make fundamental decisions about your

149 Toonen v. Australia, Communication No. 488/1992, U.N. Doc CPR/C/50/D/488/1992 (1994). 150 Corbiere v. Canada (Minister of Indian and Northern Affairs) [1999] 2 S.C.R. 203 151 478 US 186 (1986)

97

intimate relations without penalisation. The 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 one gives expression to one’s sexuality is at the core of this area of private

intimacy. If, in expressing one’s sexuality, one acts consensually and without harming

the other, invasion of that precinct will be a breach of privacy.152

Privacy allows persons to develop human relations without interference from the

outside community or from the State. The exercise of autonomy enables an individual to

attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil

all legitimate goals that he or she may set. In the Indian Constitution, the right to live

with dignity and the right of privacy both are recognised as dimensions of Article 21.

Section 377 IPC denies a person dignity and criminalises his or her core identity solely

on account of his or her sexuality and thus violates Article 21 of the Constitution. As it

stands, Section 377 IPC denies a gay person the right to full personhood which is

implicit in notion of life under Article 21 of the Constitution.

4.9.4 Ratio

Section 377 however, by criminalising consensual sexual acts between adults in private

basically penalises the minority group and has targeted the homosexuals in particular

since the majority considers it to be against the order of nature. Therefore, it is arbitrary

and unreasonable under Article 14.

152 Ackermann J. in the National Coalition for Gay and Lesbian Equality v. The Minister of Justice, decided by Constitutional Court of South Africa on 9th October, 1998.

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The expression ‘sex’ as used in the Article 15 cannot be read restrictive to ‘gender’ but

includes ‘sexual orientation’ and, thus read, equality on the basis of sexual orientation is

implied in the said fundamental right against discrimination.

4.9.5 Brief Summary of Events leading to the Naz foundation case

2001 - An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of

gay sex among consenting adults.

2004 - Delhi High Court dismisses the PIL seeking decriminalisation of gay sex and gay

right activists file review petition.

The Delhi High Court dismisses the review plea. Gay rights activists approach the apex

court against the order of the High Court.

2006 - The apex court directs the Delhi High Court to reconsider the matter on merit

and remands the case back.

The Delhi High Court allows senior BJP leader B P Singhal's plea opposing

decriminalising gay sex to be impleaded in the case.

2008 - Centre seeks more time to take stand on the issue after the contradictory stand

between the Home and Health ministry over decriminalisation of homosexuality. The

Court refuses the plea and final argument in the case begins.

The gay rights activists contend that the government cannot infringe upon their

fundamental right to equality by decriminalizing homosexual acts on the ground of

morality.

The Court pulls up the Centre for speaking in two voices on the homosexuality law in

view of contradictory affidavits filed by Health and Home ministries.

Centre says that gay sex is immoral and a reflection of a perverse mind and its

decriminalisation would lead to moral degradation of society.

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The High Court pulls up the Centre for relying on religious texts to justify ban on gay

sex and asks it to come up with scientific reports to justify it.

Government in its written submission before the High Court says judiciary should

refrain from interfering in the issue as it is basically for Parliament to decide.

High Court reserves its verdict on petitions filed by gay rights activists seeking

decriminalisation of homosexual acts.

2009 - High Court allows plea of gay rights activists and legalises gay sex among

consenting adults.

NACO153 had also demanded the scrapping of Section 377 as it was obstructing

effective health interventions.

The 172nd report of the Law Commission of India and the recommendations of the

National Planning Commission for the 11th Five Year Plan also demanded

decriminalization of homosexuality.

2012 – Government accepts the judgment of the Delhi High Court and informs the

Supreme Court that it will not appeal the judgment.

Religious Organizations are aggrieved by the judgment and plan to contest the issue of

decriminalization of section 377 in the Supreme court.

4.9.6 Repercussions of Judgment

When the Delhi High Court struck down the provision of Section 377 of the Indian

Penal Code that criminalises consensual sex between same sex individuals, it also

effectively opened up public space, long inaccessible for the gay movement in India.

The decision now not only permits the homosexual community to carry out a much

more democratic struggle against the oppression of its sexuality but also gives it an

opportunity to focus on the movement vis-a-vis class and gender issues in the country. 153 National Aids Control Organization

100

Ponni Arasu, a member of the Alternative Law Forum and a gay activist, said, “The

decision has given the gay community basic access to law. You could not be identified

as a homosexual as it was criminal to be so. So, even when there is a case of civil rights

abuse or other forms of oppression, you could never go to a police station. You had to

hide your identity.” Gautam Bhan, a member of Voices against 377, said, “No battle is

won in the courtroom. It is from here we start to complicate our language of sexuality

and engage it with other forms of oppression and discrimination in society.”

The decision was long due, considering that the law was framed as a colonial tool by the

British to enter the family space and dictate private matters. Earlier, the subcontinent’s

monarchs had not intervened in the realm of sexuality, keeping the state away from

disturbing the inherent status quo.

Thus in a way, the gay movement in India, which took a stand against the Victorian law

drafted in 1860, can also be seen as contributing to the women’s movement in the

country. Not only does the gay movement challenge the defining patriarchal nature of

public and private spaces, the gay debate also forms an integral part of ongoing class

struggles as it deals with the politics of marginalisation. Gautam Bhan in this context

said, “A Dalit woman who is a lesbian will have existential issues to deal with other

than her sexuality. But her sexuality, too, is an integral part of her life. How can we,

then, separate issues of sexuality from other democratic struggles of India? Similarly,

working class people who could be gay have their economic issues to deal with. We

need to use the language of sexuality to check any discrimination of gay people in

employment, educational institutes, hospitals, and so on. Such discriminatory practices

are a norm but we can take up these issues.”154

154 Ajoy Ashirwad Mahaprashasta, “Queer Politics”, Gender Issues, Volume 26 - Issue 15: Jul. 18-31, 2009, Frontline.

101

Activists identify several benefits from the recent decision to decriminalize

homosexuality. Significantly, opportunities for entrapment and blackmail of GLBT

people, which take advantage of their fear of being prosecuted for their sexual

orientation and gender identity, can now be challenged more publicly and hopefully

decrease. However, it must be noted that regardless of Section 377, sex workers are still

entrapped, detained and penalized using other laws. The positive court decision also

will enable GLBT and HIV/AIDS groups and activists to continue or expand their work

without persecution by the authorities.

At the same time, there is some worry of negative repercussions since a favourable

judgment will not end homophobia and its devastating effects on the lives of LGBT

people in India. One concern is the possibility of organized and social backlash against

GLBT people as their issues and identities are made more public and prominent in

mainstream media and could potentially increase family and community surveillance

and violence. Some activists say there is an even greater urgency now for safe houses,

particularly for young lesbians, bisexual women, and non-gender conforming men and

women. There is also some criticism that the disappearance of Section 377 will not

make a significant difference in the daily lives of vernacular (non-English speaking)

youth, economically disempowered people, or non-heteronormative155 women facing

forced marriages, forced confinement by the family, and forced separation from same

sex partners because these issues are grounded in denial of autonomy and dignity for

non-conforming sexuality, gender identity or expression. Despite these concerns, the

overwhelming feeling among most activists is that the positive verdict in Delhi has

155 Heteronormativity is any of a set of lifestyle norms that hold that people fall into distinct and complementary genders (male and female) with natural roles in life. It also holds that heterosexuality is the normal sexual orientation, and states that sexual and marital relations are most (or only) fitting between a man and a woman. Consequently, a "heteronormative" view is one that involves alignment of biological sex, gender identity, and gender roles

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tremendous symbolic value and could lead to more public debate, more challenges to

other repressive morality laws, and increased support for social change in India.156

The legal battle has been partly won and over the years the gay rights movement has

seen a shift in the social reaction which has moved from fierce homophobia to more

openness. What is now crucial to the movement is, perhaps, its ability to make people

question the conventional norms of the social structure and to highlight its own aim as

one that seeks not to annihilate the accepted social fabric but to ensure that the social

ethos reflects the nuances of human life and is not bound only by tradition

4.10 Observations on Chapter 4

The position in law with regard to homosexuality is changing drastically. From the

discussion above it is amply clear that from the Human rights perspective, homosexuals

are also equal to any other heterosexual human and as such a resolution has been

adopted by the United Nations placing homosexuals on the same footing as the rest of

the human race. It is interesting to note that the most opposition to gay rights has come

from the third world countries predominantly from the Muslim world and the Vatican,

both of which are fundamental in religious outlook and intolerant.

As far as the first world countries are concerned there is an acceptance of

homosexuality in the northern European countries which have one of the highest

standards of living. It is also pertinent to note that these north European countries have a

low crime rate and 100% literacy rate. The literacy rate in these countries is not at par

with the standard in India which is limited to being able to sign your name on a piece of

paper, but the ability to read, write, understand and express views. Japan is the only

156 “India: Section 377 and Naz Foundation (India) Trust v. Government of NCT Delhi” , Global Monitor, IGLHRC – International Gay and Lesbian Human Rights Commission Website on 02/07/2009

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country from the eastern hemisphere, though conservative in certain respects has never

considered homosexual intercourse as a criminal activity and the trends in Japan show

that homosexuality is being largely accepted. Australia too as a country adopted its

criminal laws on homosexuality from the colonial era, but since then Australia has

decriminalized homosexuality and is also on the way to expand its gay rights agenda in

the coming years. The United States of America is in many ways similar to India as it

consists of a large country with many peoples and races. The USA are also considered

to be religious fundamentalists especially the bible belt of the mid western states who

are ignorant of such topics as human rights, genetic research, etc. and who are the

products of the Bible and the preachers who interpret the Bible in their own archaic

ways. Even then the USA has practically repealed all laws on criminalization of

homosexuality, except for a few mid west states which still consider that homosexual

intercourse is a wrong.

India and its scriptures historically have never considered homosexuality as a crime, but

surprisingly the Congress as well as the BJP where against the plea made by the Naz

foundation. This is basically the ignorance among our politicians of Indian culture and

religion and the only reason that a 160 year old colonial law is wrongly and ignorantly

supported is that our politicians are garnering vote banks as usual and in their wicked

and sly ways are appeasing certain segments of the Muslim and Christian communities

who have reservations about homosexual sex. The Naz foundation case is a landmark

case for GLBT rights in India and hopefully someday the law on criminalization of

consensual homosexual intercourse will be reworded or deleted from the law books.

After having covered in detail the Indian scenario with regard to the law and

homosexuality, starting from the Constitutional mandate and the findings of the Naz

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foundation case, we will now move to the empirical research conducted in the State of

Goa to find out how a section of society understands and reacts to the issue of

homosexuality and criminalization of homosexual behaviour and whether religion plays

a important part in our perception of homosexuality as wrong or otherwise.

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Chapter 5 – EMPIRICAL INVESTIGATION ON HOMOSEXUALITY

The empirical investigation on the issue of homosexuality, religion and crime has been

conducted in Goa amongst people residing or have had residence in Goa. The research

has been done in 3 modules which are; (1) actual data on section 377 of the Indian Penal

code furnished by the Goa police for the last 10 years. (2) A questionnaire at Annexure

A to this study distributed to the layman with educational qualifications of graduate and

above (3) Unstructured interviews held with police personnel, people involved in the

justice system and other citizens of Goa.

The data received from the Goa Police with regard to the crime of homosexual

intercourse / unnatural sex against the order of nature and is extracted from the police

records for the period of the past 10 years under RTI. The questionnaire has been

framed to get an unbiased and broad look at homosexual intercourse vis-à-vis other

indicators as perceived by the normal citizen and as such has been randomly distributed

to people of all ages. Finally the interviews have been conducted with senior level

people who have hands on experience of criminal jurisprudence and who are actively

involved with crime and punishment. It is pertinent to mention at this juncture that no

interviews were conducted with or questionnaires furnished to individuals, Government

organisations or NGO’s who are dealing with HIV/AIDS and rehabilitation of HIV

positive people, the reason being that these people / entities will have a different

perspective from the viewpoint of prevention, control and rehabilitation of HIV/AIDS

victims, which is bound to prejudice this research project. This project is on the subject

of criminal jurisprudence, human rights and what influences our perception of right and

wrong in order to label a person a criminal and how the average citizen understands the

whole issue of homosexuality vis-à-vis criminal law, human rights and morals.

106

5 Information furnished by the Goa Police on Section 377 of IPC

The information with regard to homosexual / unnatural sexual intercourse as criminal

offences registered by the law authorities was obtained under the RTI Act from the Goa

Police department. The data which was furnished for the past 10 years was to

understand from real records whether homosexual / unnatural sexual intercourse is a

serious crime with numerous complaints and investigations in progress, which is

indicative of how the general population treats and reports homosexual intercourse. The

data is important for this study since Goa being a tourist destination attracts peoples

from many foreign nations who have different social and religious norms where

homosexuality is not considered as abnormal or deviant, but is accepted as something

very normal. It goes to say that because of Goa’s tourist diversity and multi cultural

influence a lot of gay / homosexual activity in Goa has a high chance of getting

reported, considering that homosexual / unnatural sex is on the statute books. The data

furnished by the police is reproduced at Table 1.

Table 1: Area/Police station Nos. of offences booked u/s 377

IPC in 10 years

Homosexual offences in last 10

years

North Goa 18 4

South Goa 19 10

CID 3 2 (paedophilia related)

Total 40 16

Source: Primary

The data shows that in the last 10 years in the whole of Goa 14 complaints of

homosexual offences were booked under section 377 of IPC out of which only 2

paedophilia cases have been registered as crimes and are under investigation by the CID

branch of the police department. Thus it can be inferred that homosexual intercourse is

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not considered a serious criminal offence, if it can at all be considered an offence

amongst the populace of Goa. The few complaints registered which have not been

dropped or withdrawn and are being investigated by the police are of forced sodomy

and paedophilia not related to consensual homosexual intercourse.

It is pertinent at this point to highlight the data of the number of other criminal offences

from the related sections 375 and 376 of IPC (rape)committed in Goa vis-à-vis offences

committed under section 377 of the IPC for the purpose of comparison. The data

extracted from the police records157 from the year 2006 to 2010 which is at table 2 is

self-explanatory and does not require any further embellishments.

Table 2: STATEMENT OF CRIME FOR THE FIVE YEARS - FROM 2006 TO 2010

Year 2006 Year 2007 Year 2008 Year 2009 Year 2010

Rep Det Rep Det Rep Det Rep Det Rep Det

1 Rape 21 19 20 19 30 28 48 43 36 35

Rep = Reported Det = Detected

5.1 Questionnaire

The questionnaire was distributed at random to citizens of Goa of all ages, sexes and

religions. The focus was on the relatively younger generation who are below 50 years of

age; the reason being that during the course of distribution of the questionnaire

especially to older citizens there were many queries on the nature of homosexuality,

etc., which if explained in detail would defeat the whole impartiality of the research

project and as such those responses that were received independently have been used for

this research. With regard to the religion of the person examined, as the questionnaire

157 http://www.goapolice.gov.in/stament-crime-2006-10.pdf

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has been randomly furnished without verifying the individual’s religious philosophy, all

religions may have not have been represented equally.

The Electorate of Goa as on 8th January, 2011158 stood at 1,036,770 voters. The literacy

rate in Goa is 87.40%159 whereas the literacy rate in India is 64.80%160. The definition

of literacy in India is limited to people who can reproduce their name by way of a

signature and considering the highly technical nature of this study the questionnaire was

furnished to people who had a higher level of education vis-à-vis literacy. To identify

the number of people in Goa with educational qualifications of graduate and above

certain statistical techniques have been used which are described in below.

The total number of literate people in India both male and female with graduate degrees

and above in absolute numbers stood at 37,670,000161 which is approximately 6.72% of

the literate people. Applying the same statistical ratio to the Goan population the

number of educated people is arrived at as follows. Total electorate in Goa 10,36,770

voters and the literacy rate in Goa 87.40% as such total literate people in Goa are

approximately 906,137 and if the ratio of graduates to literate people in India which is

6.72% is applied to literate people in Goa the number of literate people with educational

qualifications of graduate and above is approximately 60,879 people.

In total 120 questionnaires were distributed to random age groups and religions with an

equal proportion to males and females. Of the total questionnaires distributed the

number of questionnaires received with valid responses was 103 which is around 85%

and of the 85% valid responses received 54% were from females and 46% from males.

158 http://articles.timesofindia.indiatimes.com/2011-01-08/goa/28371407_1_electoral-rolls-summary-revision-deletion 159 http://www.indiaedu.com/goa/ 160http://censusindia.gov.in/Census_And_You/literacy_and_level_of_education.aspx 161http://censusindia.gov.in/Census_And_You/literacy_and_level_of_education.aspx

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The questionnaire has been framed to get the best response from the participants and in

turn the responses have been analysed after collecting and collating the data statistically,

the results of which are reproduced in this study. The analysis has been done on the

most valid criteria so as to bring out in the most impartial manner the key areas of

research which are the interconnection between religion, science, crime and

homosexuality. The data has been presented as percentages and in many cases it has

been represented graphically for better assimilation and understanding. The comments

of the researcher have been recorded to clarify and elucidate any grey areas and the

thought process involved in the research study.

5.1.2 Age Groups and Religion

The total representation by age group and religion of those who answered the

questionnaire is:

Figure 1: Figure 2:

Age Group representation Religion representation

5.1.3 Nature of Homosexuality

Figure 3:

27%

64%

9% less than 25

25 to 50

above 50

37%

45%

18% Abrahamic

Hindu

Other

110

Though 33% consider homosexuality as normal, it is interesting to note that 30% of the

people don’t know about the nature of homosexuality. This trend is not encouraging and

more education is definitely required to be imparted on this subject.

5.1.4 Homosexuality as Wrong

Figure 4:

Of the total sample, 71% do not consider homosexuality as wrong and 24% are not sure

about the nature of homosexuality which once again is discouraging. It is pertinent to

mention here that the comments received from the participants who selected “Don’t

know” indicated that they did not consider homosexuality as wrong per se and as such

the ‘Don’t know’ category is logically added to the ‘Not wrong’ category for proper

evaluation of results.

33%

30%

18%

14%5% Normal

Don’t know

Deviant

Genetic

Disease

71%

24%

5%Not wrong

Wrong

Don’t know

111

A further break-up on gender wise who consider homosexuality wrong are shown in the

pie-charts below.

Figure 5: Figure 6:

Female Male

So also the break-up of religious denominations among the participants who perceive

homosexuality as right or wrong is recorded. (The Abrahamic religions comprise of

Christians, Muslims and Jews and the other religions comprise Hindus, other Indian

and eastern religions and also include atheists and agnostics.)

Figure 7: Figure 8:

Abrahamic religions Others

The statistics clearly show that the participants belonging to Abrahamic religions have a

stronger bias towards homosexuality as a wrong and as such the hypothesis stands

proved.

69%

19%

12%Not wrong

Wrong

Don’t know 69%

25%

6%Not wrong

Wrong

Don’t know

55%31%

14%Not wrong

Wrong

Don’t know 76%

20%4%

Not wrong

Wrong

Don’t know

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It is also interesting to note that in the age group analysis the participants who do not

consider homosexuality as a wrong are; 80% of those below 25 years; 62% between 25

to 50 years of age and 57% above 50 years of age, which proves that as society moves

ahead, perception of what is right and wrong is slowly but surely changing and

homosexuality is viewed as wrong.

5.1.5 Religion and Condemnation of Homosexuality

Before recording the data about which religious philosophy most condemns

homosexuality, it is pertinent to note that 44% of the participants think homosexuality is

perceived as a wrong on account of religious teachings, whereas 30% believe it is due to

social norms and 17% have mentioned health grounds as the reason homosexuality is

considered as a wrong.

Religions that condemn homosexuality the most

Figure 9:

Once again the hypothesis stands proved with 68% of the participants stating that the

Abrahamic religions are the main cause for perceiving homosexuality as a wrong. It is

also pertinent to note that the Abrahamic religions were exported to India by the

colonialists.

68%

22%

9%1% Abrahamic

Other

Hindu

All

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It is also interesting to note that the participants both male and female have no qualms

about sexual intercourse purely for pleasure and companionship as 94% are of the

opinion that sexual intercourse and procreation are not linked. The inference that can be

drawn from this data further vindicates the hypothesis that Abrahamic religions are the

root cause of considering homosexuality as evil and wrong and the age old concept of

sexual intercourse only for the purpose of procreation as propagated by the monotheistic

religions is getting eroded as society moves forward into the future.

5.1.6 Companionship and Consensual Sex

On the question of whether sexual intercourse is essential for companionship there is an

almost equal number of participants who agree and disagree to this proposition. Having

said this again 50% of participants believe that sexual intercourse is to be limited to

male / female relationships and 50% believe otherwise.

The next area of research is whether consensual homosexual intercourse is a crime.

Consensual homosexual intercourse and crime

Figure 10:

78%

10%12%

Don’t consider

Consider

Don’t know

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If those who “don’t know” are added to number who does not consider homosexual

intercourse as a crime, the data in Figure 10 reveals that a whopping 88% do not

consider consensual homosexual intercourse as a criminal offence.

The next proposition to the participants was whether consensual sex between

homosexuals is to be allowed. The data shows that 63% says it should be allowed and

24% don’t know. Once again the inference drawn from ‘don’t know’ is that many

participants are not clear why homosexual intercourse is a crime due to dearth of

knowledge on the subject of homosexuality. The comments and other data received

from many of the participants who chose ‘don’t know’ indicate that they are per se not

against homosexuality and only choose the ‘don’t know’ option for want of more

enlightenment on the subject of homosexuality. Further considering that consensual

homosexual intercourse has not been rejected outright and based on the feedback and

explanations of ‘don’t know’ it would be correct to add the 24% to the 63% which

returns a result that 87% of the sample do not consider consensual homosexual

intercourse as a crime.

5.1.7 Homosexual Intercourse and Criminal Punishment

Questions 12, 15, 18 and 19 in the questionnaire though not happily worded and with

limited choices were to primarily focus on punishment for homosexual intercourse as

provided in the IPC and compare it with other criminal provisions which have the same

or similar type of punishment (i.e. 10 years to life imprisonment with penalty, etc.). 2%

of the sample equated homosexual intercourse with the criminal offences of grievous

hurt, dowry death, rape and domestic violence, whereas 93% of the sample felt that

homosexual intercourse cannot be in par with the crimes of dowry death and rape. The

numbers speak for themselves and it shows that the punishment for homosexual

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intercourse (if any punishment is to be meted out for a non-criminal activity) is very

harsh and should be struck off from the penal provisions. It is also of interest to mention

here that 36% of the sample where not aware that homosexual intercourse is a severe

criminal offence in India. Finally 97% of the sample stated that imprisonment or for that

matter any punishment or penalty is not to be awarded for the so called crime of

homosexual intercourse. This again proves the hypothesis that the redundant provision

in our penal code needs to scrapped, read down or re-drafted more intelligently.

5.1.8 Government Influence and Individual Sexual Preference / Orientation

The sample indicates that 86% are of the opinion that Government should not interfere

in a individuals sexual preference and sexual orientation, so also if the 5% who state

‘don’t know’ is added (the reasons have been mentioned by me earlier) to the 86% an

overwhelming 91% feel Government should keep out of the bedroom. The graphic

representation of the data with regard to government interference is reproduced at

Figure 11 below.

Government interference with sexual preferences / sexual orientation

Figure 11:

86%

9%5%

Don’t interfere

Interfere

Don’t know

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5.1.9 Homosexual Intercourse and Decriminalisation

Figure 12:

The data received from the participants to the question above is presented as a pie-chart

at Figure 12 which shows that 90% (i.e. 69% + 21% ‘don’t know’) are of the opinion

that homosexuality is to be decriminalized in the interest of true justice, this data once

again vindicates the hypothesis that it is time that India decriminalizes inter-alia other

archaic penal provisions consensual homosexual intercourse.

The age group wise answers to the question “should homosexual intercourse be

decriminalized” returned the following statistics; 95% below the age of 25 years, 88%

between 25 and 50 years and 85% above 50 years are of the opinion that homosexual

intercourse is to be decriminalized. It is interesting to note once again that as the age

decreases the perception of the new generation and of society also changes and becomes

more liberal and tolerant.

What can be finally concluded from the questionnaire data received from different

categories of individuals and which proves the hypothesis is briefly summarised below;

(1) People do not consider homosexuality as wrong.

(2) The teachings of the Abrahamic religions are the main reason for homosexuality

being perceived as a wrong.

69%

10%

21%Decriminalize

Maintain

Don’t know

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(3) Consensual homosexual intercourse is not considered a crime.

(4) The punishment for homosexual intercourse has no justification and is to be

scrapped.

(5) Government should not interfere with an individual’s sexual orientation or

preference.

(6) Consensual homosexual intercourse is to be decriminalised.

5.2 Interviews and Investigation

The interviews and investigation were conducted in an informal manner with friends,

relatives, police officers and people involved in the justice system. The purpose of the

interview was to get a first hand input on the nature of homosexuality, homosexual

intercourse and whether it is to be considered a criminal offence.

Most of those interviewed were of the opinion that homosexuality is a psychological

problem, but after much discussion and argument many have accepted that

homosexuality could be a subject in the realm of science and genetics and not in the

realm of psychology. Another important observation which needs to be made here is

that ‘psychology’ argument in many cases has been linked with ‘genetics’ which brings

out the possibility of a ‘gay’ gene in every human being which in some individuals gets

triggered off due to some psychological or sociological incident leading to a change in

the person’s sexual orientation. So also many of the interview participants were ignorant

or ill informed about the genetic causes of homosexuality as many mentioned that

though there is readily available literature on psychological aspect of homosexuality

there is a dearth of literature on genetics which besides being difficult to obtain in Goa

is also highly technical in nature making it difficult for the average person to

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understand. All said and done only a few fundamental and misinformed people who

were not open to intellectual argument are of the opinion that homosexuality is a ‘curse

from God’ a ‘sin’ and ‘against nature’. The large majority feel that it is a psychological

or genetic condition and that an individual’s sexual preference and orientation is

something which is very personal and as such cannot be condemned offhandedly as

wrong and criminal.

On the point of criminalization of homosexual intercourse there were some interesting

inputs from the police and the judiciary which need to be documented here. First of all

the law makers are all of the opinion that section 377 of the IPC is an archaic law and

that it has even been decriminalized in Great Britain in the 1960’s, but that

unfortunately it is still carried in our penal code along with other redundant provisions.

The second interesting point that came out of the discussions was that though most felt

that it was very likely that religious influence was the reason for section 377 of IPC to

be included as a criminal offence, the section could probably have been included to

abort and prevent any bodily harm which was not covered by the rape provisions in the

IPC (e.g. sodomy with a women or child, forced oral sex, forced digital sex, cruelty to

animals, etc.) The reason for this interesting point of view is that as the wording of the

rape provisions in the IPC are very specific and limited to peno-vaginal intercourse and

as such are limited to man and women and they do not cover the other forcible sexual

acts which may perpetrated on the innocent and as such section 377 came to include

other sexual crimes not covered by the rape provisions. Having said this the consensual

aspect of homosexual intercourse or other sexual acts apart from the fusion of male and

female sexual organs were considered as criminal 160 years back mainly because

religion forbade it.

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Finally the police and the judiciary with their vast experience of criminal matters and

criminal psychology feel that section 377 has to remain in the statute books for forced

sexual crimes other than rape, but that the section should be ‘read down’ by adding a

proviso to the section stating that consensual heterosexual and homosexual intercourse

or other sexual acts / preferences other than normal peno-vaginal intercourse which do

not cause grievous hurt or injury to another are not to be considered as criminal offence.

The reason being that section 377 protects women, men and innocent children from

sexual acts done forcibly against them without their consent and which are not covered

under the rape provisions of the IPC. It also protects animals from the perversity of

some individuals. This seems to be to be a very valid and sane argument.

5.3 Observations on Chapter 5

From the empirical data collected and presented the hypothesis is proved correct. The

Abrahamic religions and their teachings which have not been revised for more than two

millennia are the root cause in treating homosexuality and consequent homosexual

intercourse as wrong and criminal. The religious teachings unfortunately have resulted

in creating the homophobia against a particular segment of the human race.

The data has also proved that the majority to not perceive consensual homosexual

intercourse as a crime and treat it at par with consensual heterosexual intercourse and

that the provisions of section 377 of the IPC which criminalize homosexual intercourse

are biased and unjust. The sample data also emphasises that section 377 should be read

down and decriminalised in the interest of justice and as such the second part of the

hypothesis stands proved.

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Chapter 6 – CONCLUSION

The concluding chapter has been divided into four parts based on the chapter sequence

followed in this study. The purpose is to put forth by way of brief summary the thought

process of the researcher in approaching the topic of homosexuality and homosexual

intercourse vis-à-vis the content of the main chapters. The final part of the concluding

chapter is general observation and suggestions of the researcher with regard to religion,

morals, science, and homosexuality.

6 Religion and Homosexuality

Historically homosexuality and homosexual intercourse as wrong and consequently

being labelled as a criminal offence with severe punishment has been embedded in our

psyche predominantly by the teachings of the Abrahmic religions. The Eastern religions

of Hinduism, Buddhism and Jainism have no strict penal strictures against

homosexuality and it can be inferred that the Abrahamic religions have influenced the

criminal jurisprudence in the sub-continent on the subject of homosexuality. Indians as

a people do not treat with abhorrence the daily acts of criminal breach of trust and

corruption, as these acts which result in poverty, injustice and degradation of the human

being are not condemned forcefully in the scriptures. In contrast the homosexual who

does not mean harm or do harm to another of the species, but more often than not

contributes to progress is considered deviant, pervert and criminal. This thinking has

been inherited by us due to religious upbringing fostered by the colonial thinking

process which has its law influenced by religion. The idea that homosexuality is wrong

has also garnered support on account of lack of knowledge on the subject of

homosexuality. Religion and the concepts of morality which it propagates are slowly on

the decline as man moves forward in this age of science, technology and tolerance. To

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condemn another for his or her sexual orientation is against the tenants of equality and

humanity. Man is a creature of nature and circumstance and to believe otherwise would

only result in mockery of civilization which has moved out from the cave to the

wonders of outer space.

Heterosexual, homosexual, transgender, bisexual are all a part of nature and these facets

of nature are glorified in our own Indian culture which has a superior philosophical

view of nature and its constituents. The western/middle eastern religious philosophies

which have been bred on intolerance and survival of individual clans, tribes and groups

are in contrast to Indian philosophy of tolerance and acceptance. The idea of a God as

the “one and only God” who decides what is right and wrong laid down in the scriptures

are basically the writings of ancient men. These writings coupled with ignorance and

ego has made the majority intolerant towards the minority and the weak. This has built

blocks in our mental outlook towards people who are different and do not conform to

accepted norms of society. This has resulted in these individuals being perceived as

wrong doers and uncivilized people. The easiest of things to do without knowing the

“How?” and “Why?” is to point a moral finger at another person without taking into

consideration circumstances by which a person has turned out in a particular way. One

of the factors which have caused this higher moral ground on which many of us stand is

religion. It is pertinent to note here that in the past certain religions considered the

unfortunate or with terminal disease as being visited by punishment due to misdeeds

and in the same manner a homosexual or Gay person is also put in the category of the

wrong doer. This is not acceptable in a civilized society where science and its empirical

foundations are the only sure paths to the progress of mankind.

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Sin and wrong have never been defined. The perception of the few in power and who

represent the dominant class decide right and wrong and identify some act as sinful or

good. For a King to have a number of wives on whom luxury was lavished was not

considered wrong. In the same way for a rich man to have disproportionate assets is not

wrong. How the assets have been acquired is never in question. But a poor hungry man

who steals a fruit to feed his hunger is labelled a thief. This is the paradox. Similarly the

dominant class who are heterosexual term those who are homosexual as deviant and

pervert. What constitutes wrong are acts which harms human or animal. What

constitutes wrong is blind ambition leading to poverty and destitution of other classes.

What constitutes wrong is greed, jealousy and hate. But a person’s sexual orientation

and consensual preferred way of having sex in the privacy of his or her bedroom

without intention of causing harm cannot be termed wrong and definitely not criminal.

To consider that homosexuality is wrong per se is a crime against mankind. There are a

lot of factors which are the cause for homosexual behaviour. The notion of good vis-à-

vis evil are to be decided on real data and better understanding of various factors in

nature which make some humans different from others. Homosexuality is also a facet of

nature and terming it criminal is wrong. If we term something wrong without

understanding its true nature then the door is open for fundamentalists to apply the same

yardstick to the mentally insane, the terminally sick, the destitute and the deformed.

Thus homosexuality like any other facet of Mother Nature is part and parcel of our

existence. Unfortunately religion has imposed a certain block in our mentality which

makes us view this aspect of nature as wrong. We as civilized creatures have to live

with each other as human beings rather than ostracize a whole segment of our species

based on some highly improbable, unscientific and biased religious scripture and

dogma.

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6.1 Science and Homosexuality

Scientific research in the fields of biology, genetics, sociology and psychology has

produced extensive data that homosexuality is not deviant behaviour or a disease as

many of us are inclined to believe, but that it is just another factor in nature’s creation

process. Traditionally it was believed that homosexuality was a disease but subsequent

research findings have discarded this notion and have reiterated that homosexuals are

normal human beings who have a different sexual orientation or preference rather than a

disease.

From the scientific point of view our solar system was born 4 billion years ago and

every species on Earth has evolved from a unicellular organism. In this scenario it is

highly probable that genetics plays a very important role in hetero-sexuality, homo-

sexuality, bisexuality and trans-gender people. If for a moment we stop thinking

conventionally we can explore the idea that in every creature that has evolved to the

present age there must be an element of male and female as we have all evolved from a

single cell. Research has proved that in very early development stage of all humans

there is at inception a neutral sex with no reproductive organs. Now depending on if you

have male (XY) or female (XX) chromosomes you will then differentiate into one of the

sexes. The female form can be considered the sort of default form as the action of the Y

chromosome is to prevent formation of the female reproductive tract and form testes

which produce testosterone and create the male characteristics, thus the developing

foetus always requires some signalling which instigates the development of male or

female characteristics. In this scientific equation it can be safely stated that there will

always be a female gene in every male and male gene in every female. Further various

psychological and sociological factors and given circumstances trigger the individual to

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either tend towards heterosexuality or homosexuality. ‘Heterosexual’ and ‘Homosexual’

are words coined to understand a phenomenon rather than words to compartmentalize

and differentiate the species into categories which in turn are exploited by ignorance.

It has also been proved by science that homosexuality is not limited to the human

species but also is prevalent amongst other species. This proves that the XY

chromosome theory has its merits and is definitely more acceptable than religious

belief. It is also worth mentioning here that no mother from whose womb a child is born

whether it be heterosexual, homosexual, insane or deformed will condemn it as

inhuman, deviant, perverted or criminal. Thus it is suggested that if women had ruled or

were equal participants in the evolution of religious and scientific thought things might

have been very different today with respect to homosexuality.

6.2 Law and Homosexuality

The Indian judicial system has derived a lot of its philosophy and precedent from

western jurisprudence. Most of the courts adopt and implement laws which have been

promulgated by our erstwhile colonial rulers. In most of the substantive laws and all the

procedural laws we follow the western philosophy of jurisprudence. Our Constitution

has adopted the framework of the Universal Declaration of Human Rights which was

adopted by the majority of civilized nations and it has become the beacon of

fundamental rights and democracy in our nation of over a billion people. Having said

this, the world as we know it especially the western world and the highly developed

countries have moved forward by promulgating laws for more human rights, acceptance

and tolerance of man’s complex nature. Today laws protecting the rights of man,

woman, children and unfortunate are gaining acceptance worldwide and as such it is

necessary that India too follows this trend by accepting these progressive laws.

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In today’s highly changed socio-legal scenario it is but imperative that an archaic law

like section 377 of the IPC is revised. Equality, liberty, freedom and right to live is our

fundamental right enshrined in the Constitution and are important to the success of our

democracy and global identity as a nation. The Naz foundation case brought about some

very relevant issues which challenged the Constitutional framework similar to

Lawrence v. Texas in the USA. In our country homosexuals and their sexual orientation

or preferred way of having consensual sexual intercourse has constitutional sanction

inter alia under article 14 which is the bone of contention in the aforesaid discussion.

To deliberate a little more on the topic of law vis-a-vis sexual preference/orientation of

an individual, it can be fairly stated that the Government has no right to interfere in

what happens in the privacy of an adult individual’s bedroom. If there is consensual

acceptance of a particular sexual act which does not cause hurt or physical harm to the

consenting individuals then there is no reason that the legislature should interfere.

Archaic and orthodox moral standards should not influence the larger majority in

perceiving right vis-a-vis wrong. Right and wrong ultimately is the perception of an

individual in the circumstances of the time he or she lives in and not what is handed

down to us from scriptures or historical writings of a age long past. Homosexual

intercourse as such has no legal issues involved except that the British jurisprudence

inherited by us considered a particular act wrong. It is pertinent to note here that the

British have deleted homosexual intercourse as a crime from their penal statues. To

consider an act wrong or criminal one must first look into aspect of whether the act is

consensual or if there is factor of mens rea in the alleged act. Only when an act satisfies

the requirements that it is involuntary, coercive and done with malafide intent which are

the basis of criminal jurisprudence can the act said to be wrong and a crime.

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The direction given by the Courts in Lawrence v. Texas, Toonen v. Australia and Naz

foundation case is path breaking. These judgments make the world a fairer and more

tolerant place to live in. The rationale that if one is homosexual then one has committed

wrong and is a criminal does not have a place in the fundamental rights guaranteed in

the Constitution. It is preposterous to suggest that an individual is a criminal simply

because he has a different sexual preference and orientation and as such this proposition

is in total contrast with right to every individual’s right to equality.

It is pertinent to mention that the younger generation is much more aware of

homosexuality in our current society. And as such these younger people accept

homosexuality and changes in society much better than people of an older age group. So

also the youngsters have a better understanding of behavioural patterns of humans

which are a consequence of changes in society and as such have no problem with the

issue of homosexuality.

It is also worth mentioning here that same sex marriages and adoption of children by

partners of the same sex have been legislated in first world countries. Though there is a

lot of controversy on this subject it is relevant to mention that these countries have a

higher standard of living, better rule of law, higher level of education, equality amongst

the sexes and lesser crime rate. Thus to keep abreast of global reforms it is time for the

Government of India as mentioned in sub-chapter 5.3 to reconsider its position on

section 377 of the IPC by aligning itself with the ratio in the Naz foundation case and

reading down the archaic provision of section 377 of IPC to incorporate consensual

homosexual intercourse.

6.3 Empirical Data on Homosexuality

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The empirical data proves that homosexuality is per se not wrong. Having said the

majority who consider homosexuality wrong are influenced by Abrahamic religion

which proves the hypothesis. The empirical data also proves that most people do not

consider consensual homosexual as a criminal act and are of the opinion that article 377

is a totally unfair criminal provision which should be read down or re-drafted to include

a proviso decriminalizing consensual homosexual intercourse. It is also interesting to

note that the majority of the data samples in this study believe that government

interference is not warranted in a person’s sexual orientation and preference. The

sample is of the opinion that the government would serve the people better if it did not

interfere with the privacy of an individual’s bedroom and their sexual

orientation/preference but instead concentrate on other pressing matters.

At this juncture it would be pertinent to mention that during the course of collating the

data collected, many individuals stated their comments on the issue of homosexuality.

These comments are of great interest and utmost importance to judge the thought

processes prevailing in people on the issue of homosexuality, sexual orientation and

preference. The comments are thought provoking and give a clear psychological insight

of the individual data sample on perception of right and wrong, homosexuality,

homosexual intercourse and crime. The best and most lucid comments are stated below

for the reader’s perusal and judgment.

(a) I believe a lot of my generation are more tolerant than our parents’ generation

to homosexuality amongst consenting adults, but cannot really cope with detailed

discussion about it as we do not really understand it.

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(b) I consider homosexuality as unnatural, but I would definitely say that it is every

individual’s choice to choose their preferences as long as it does not directly affect the

lives of people around them.

(c) Every person should have the liberty to choose their sexual partners.

(d) Homosexuals are also human beings and have a free choice as such they should

not be looked down upon.

(e) I do not think homosexual intercourse is a criminal activity; however it might

have severe health implications (STD/AIDS). Government should limit their role against

potential health ill effects of homosexual intercourse rather than ban it or declare it as

illegal.

(f) Section 377 of the IPC is an outdated law as it fails to address the individual’s

privacy which is fundamental right guaranteed by the constitution. Public awareness

and sex education is the need of the hour to unravel the sexual taboo linked to

homosexuals. As a truly democratic nation India has to revise the prejudicial law on

homosexuality.

(g) Darwin’s theory is based on the survival of the fittest, the best gene pool. Nature

is meant to procreate so the fittest and best attributes (in this case the human

species)prevail and the weak and unnecessary attributes die out, as such homosexuality

does not help procreate or weed out unnecessary attributes from the human gene pool.

Homosexuality serves no function in the ecology of life, so by definition it falls under

the category of ‘vanity and want’ as opposed to ‘having purpose and need’.

(h) Homosexuality per se is not a crime, but forced homosexual intercourse like

rape should be condemned.

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(i) Branding people who are differently oriented as “homosexuals” is an offence

against human freedom, and should be condemned in the strongest terms.

(j) Homosexuality maybe a social wrong or an abnormal behaviour or a

psychological problem but it is definitely not a crime and should not attract penal

provisions.

(k) I am straight, but personally I do not feel sexual preferences should be the

concern of society or the government, as long as something is consensual there is no

issue.

(l) From my personal experience I have seen many persons both male and female

having severe psychological problems when they have to hide their sexual orientations.

They would have lived a normal life if they had been allowed their choice.

(m) “Carnal intercourse against the order of nature’ a Victorian formulation that

has no place in the 21st century and probably had no place in Victorian England either.

The state has absolutely no business inside a man or woman’s bedroom and what

consenting adults do within the privacy of their homes. Section 377 is thus not so much

an unwarranted restriction on sexual freedom, as it is a crime against privacy and the

rights of men and women over their own lives and bodies.

(n) I think homosexual and lesbian sex is unnatural and there should be more

education to make everyone understand why it should be a ‘no’ for gay culture.

(o) Homosexuality is fine but should remain behind closed doors as children should

be brought up with the view of marriage between male and female as being the core of

society.

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(p) The issue of sex and sexuality is always a very sensitive one, and more so in

India. I don’t think I have clear answers in my head, but I think that I would be upset if

my child showed homosexual tendencies and I am aware of my discomfort when I know

a friend or acquaintance is gay. But I believe that it is not a crime, and that the

government should stay out of the bedroom especially when it involves consensual

adults.

6.4 Final Observations and Suggestions

Regardless of the extent to which social and biological factors influence one's sexual

identity; lesbians, gays, and bisexuals should not be discriminated against just because

they have different sexual orientation and preference. It is true that Homophobia and

discrimination exist, and it is naive to think that a biological or genetic explanation of

homosexuality will change that; the only remedy which can counter discrimination is

social and political.

Society at present protects people against discrimination for choices such as religion,

marital status, political affiliations, etc. and in this scenario genetic and biological

predisposition is not necessary to create these legal protections. The scientific argument

for a biological basis for sexual orientation, the religious argument that homosexuality

is wrong, the political argument to prevent homophobic bigotry are all efforts made to

understand the controversy surrounding homosexuality. The lesbian, gay, bisexual and

transgender community does not need to be labelled deviant but in fact society as a

whole must recognize the validity of lesbian, gay and alternative lifestyles.

Discrimination must end and acceptance of all human beings should be given utmost

recognition. We all are species and we have to celebrate our diversity whatever may be

its origins. It is not for us to criminalize something that is so normal, so natural, so

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harmless and also found among other species in nature. Thus, those who consider

themselves the guardians of morality and who have conveniently labelled

homosexuality as a 'crime against nature' should realise that it is not unnatural and as

such it is not be a crime.

Therefore the question is whether homosexual or heterosexual intercourse or straight,

gay, lesbian, bisexual or transsexual should be the subject matter of law to control,

regulate and prohibit? Sexual intercourse is the most normal activity of any human

being and it is hormonally driven and as such not an immoral act. Sexual intercourse is

both for procreation and pleasure. Sexual intercourse is also integral to affection,

relationships and bonding of people and as such homosexuals also have emotions which

lead to sexuality.

How much do we really know about nature? After the great Cambrian explosion

millions of years back, life was formed from a unicellular organism which multiplied by

itself. In fact even as I write this there are millions of unicellular organisms in our own

bodies which are creating new life without the help of male and female. In this scenario

can we say that homosexuality is wrong? When we ourselves do not know what

transpires in our very own bodies.

For those of us who believe that homosexuality is against the order of nature it will

difficult to adjust to others of our species who are different from us. The prejudices we

carry against one small community will result in the expansion of our prejudices

towards others which will result in homophobia. The repercussions of homophobia have

been documented in history over the millennia and the morals of homophobes are

nothing but convenience. But for those of us who believe that we are organisms which

have evolved over billions of years in a vast universe, which also exists for billions of

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other species, it is important that we live in peace, harmony and tolerance and accept

everything as a part of nature.

It is pertinent to mention here that the Government of India has filed an affidavit in the

Apex court stating that the judgment of the Delhi High court in the Naz Foundation

case is accepted and that it will not appeal any further. This is a great victory for the

GLBT movement and for all who propagate tolerance. The stand of the government

vindicates the hypothesis that section 377 of the IPC is archaic and needs to be

decriminalised. Having said this many religious organisations have objected to the

government stand on the issue of decriminalizing homosexual intercourse which once

again proves the hypothesis that religion is the main cause for the bias against

homosexuality.

As mentioned earlier in this paper it is pertinent to state that the rape provisions of

section 375 and 376 of the IPC focus only on peno-vaginal intercourse and as such

section 377 may still continue in the penal statute books. But it is imperative that a

proviso be added to section 377 of the IPC clearly stating that sexual intercourse

whether heterosexual, homosexual, bisexual or other, if consensual will not construe a

criminal offence.

Laws are made to meet the ends of justice and as such if the law is ignorant and unjust

the aggrieved will have no recourse to the justice system. Hence the laws should be

changed as per the times we live in for the betterment and progress of civilization.

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BIBLIOGRAPHY AND REFERENCES

I Books

1. Anderson, K. The Mahabharata (Bhaktivedanta Book Trust International)

2. Dawkins, Richard. The Greatest Show on Earth (Bantam Press)

3. Doniger, W. The Hindus an Alternative History (Penguin Books)

4. Good News Bible, Today’s English Version (St. Pauls)

5. Jain, M.P. The Constitution of India, 6th edition (Butterworth Wadhwa)

6. Kant, Immanuel. Groundwork of the Metaphysics of Morals (Cambridge Press)

7. The Indian Penal Code, 1860 (Bare Act)

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II Articles

1. A Report by Human Rights Watch. “This Alien Legacy: The Origins of “Sodomy” laws in British Colonialism”

2. A Report by PUCL-Karnataka. “Human Rights Violations on Sexual Minorities in India”

3. Anderson, Eric. “Homophobia”

4. Bailey, J. M. and Pillard, R. C. "A Genetic Study of Male Sexual Orientation"

5. Bene, Eva. “The Genesis of male Homosexuality: An attempt at clarifying the Role of the Parents (abstract)”

6. Burr, Chandler. “Homosexuality and Biology”

7. Cauthen, Kenneth. “Homosexuality and Religion”

8. Colbentz, Jessica. “Homosexuality and Religion”

9. Diamant, Louis. “Male and Female Homosexuality: Psychological Approaches”

10. Eckert, E. D.; Bouchard, T. J.; Bohlen, J. and Heston, L. L. “Homosexuality in monozygotic twins reared apart (abstract)”

11. Freud, S. "Three Essays on the Theory of Sexuality (abstract)"

12. Gairdner, William. “Religion and Homosexuality”

13. Giamanco, Kristin. “Homosexuality: Born or made”

14. Halperin, David M. “Forgetting Foucault: Acts, Identities and The History of Sexuality”

15. Jafar, Hassan. “Homosexuality: Science, Politics and Religion”

16. Johnson, Ryan D. “Homosexuality: Nature or Nurture”

17. Joseph, E. D. and Tabor, J. H. "The Simultaneous Analysis of a Pair of Identical Twins and the Twinning Reaction (abstract)"

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18. Kallmann, F. J. "Comparative Twin Study on the Genetic Aspects of Male Homosexuality (abstract)"

19. Kallmann, F. J. "Twin and Sibship Study of Overt Male Homosexuality (abstract)"

20. Kinsey, A. C.; Pomeroy, W. B.; Martin, C. E. and Gebhard, P. "Sexual Behavior in the Human Female (abstract)"

21. Kinsey, A. C.; Pomeroy, W.B. and Martin, C.E. "Sexual Behavior in the Human Male (abstract)"

22. Kristof, Nicholas D. “Gay at Birth?"

23. Lawrence, Georgia. “The Science of Homosexuality”

24. LeVay, S. "A Difference in Hypothalamic Structure between Heterosexual and Homosexual Men (abstract)"

25. Levay, S. "The Biology of Sexual Orientation"

26. Medinger, Alan P. “Homosexuality and Truth: Is it a Life Determined before Birth (abstract)”

27. Medinger, Alan P. “Myths about Homosexuality”

28. Narrain, Siddharth. “The Queer Case of Section 377”

29. Parker, Neville. “Homosexuality in Twins: A Report on Three discordant pairs (abstract)”

30. Perkins, Anne and Roselli C. “The Ram as a Model for Neuroendocrinology (abstract)”

31. Pickett, Brent. “Homosexuality”

32. Pietrzyk, Mark E. “Homosexuality and Child Sexual Abuse: Science, Religion and the Slippery Slope”

33. Rogers, S. “Common Questions about Homosexuality”

34. Saunders, Peter and Pickering, Rachel. “What Causes Homosexuality or Same Sex Attraction (SSA)”

35. Schoenfeld, Thomas A. "Biology and Homosexuality"

36. Shagor, Himel. “Homosexuality: A Brief Study”

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37. Stein, Edward. “Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights”

38. Swaab, D.F. “Sexual Differentiation of the Brain and Behavior”

39. Swaab, D.F. and Hofman, M.A. “An Enlarged Suprachiasmatic Nucleus in Homosexual Men (abstract)”

40. Taylor, T.J. “Twin Studies of Homosexuality (abstract)”

41. Thorp, John. “The Social Construction of Homosexuality”

42. Thould, A.K. “Origins of Homosexuality”

43. Wilhelm, A. Das. “Hindu deities and the third Sex”

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III Web References

1. http://allpsych.com/

2. http://archive.org/

3. http://articles.timesofindia.indiatimes.com/

4. http://bi.org/

5. http://bjp.rcpsych.org/

6. http://borngay.procon.org/

7. http://findarticles.com/

8. http://gaydelhi.tripod.com/

9. http://hdr.undp.org/

10. http://health.discovery.com/

11. http://ibnlive.in.com/

12. http://islamicinsights.com/

13. http://jurisonline.in/

14. http://news.rediff.com/

15. http://plato.stanford.edu/

16. http://serendip.brynmawr.edu/

17. http://supremecourtofindia.nic.in/

18. http://timesofindia.indiatimes.com/

19. http://upscportal.com/

20. http://www.123india.com/

21. http://www.apa.org/

22. http://www.biblegateway.com/

23. http://www.biology-online.org/

24. http://www.britannica.com/

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25. http://www.catholic.com/

26. http://www.echr.coe.int/

27. http://www.exodusglobalalliance.org/

28. http://www.fact-index.com/

29. http://www.faithfreedom.org/

30. http://www.fordham.edu/

31. http://www.fridae.com/

32. http://www.galva108.org/

33. http://www.gay.com/

34. http://www.gaybombay.org/

35. http://www.gaylawnet.com/

36. http://www.geneletter.org/

37. http://www.glbtq.com/

38. http://www.gutenberg.org/

39. http://www.hrc.org/

40. http://www.ilga.org/

41. http://www.indialawjournal.com/

42. http://www.indiarights.com/

43. http://www.kinseyinstitute.org/

44. http://www.lawstuff.org.au/

45. http://www.leagle.com/

46. http://www.missionislam.com/

47. http://www.nationmaster.com/

48. http://www.nationsonline.org/

49. http://www.nin.knaw.nl/

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50. http://www.pbs.org/

51. http://www.queernotions.org.uk/

52. http://www.religionfacts.com/

53. http://www.religiousforums.com/

54. http://www.religioustolerance.org/

55. http://www.sangamonline.org/

56. http://www.sexuality.org/

57. http://www.sodomylaws.org/

58. http://www.sunnidefense.com/

59. http://www.telegraph.co.uknews/

60. http://www.theatlantic.com/

61. http://www.thefreedictionary.com/

62. http://www.tim-taylor.com/papers/twin_studies/

63. https://facultystaff.richmond.edu/

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Annexure 'A'

QUESTIONNAIRE FOR RESEARCH PROJECT ON CRIMINALIZATION OF HOMOSEXUAL BEHAVIOUR

Please tick appropriate box as per your given choice √

This questionnaire is confidential

Q1 Are you male or female?

Male Female Q2 What is your age group?

Below 25 years Between 25 - 50 years Above 50 years Q3 What is your religious belief? Hindu Muslim Christian Other None

Q4 Do you think Homosexual behaviour is

Normal Deviant (perverted) Genetic Disease Don’t know Q5 Do you consider homosexuality as wrong? Yes No Don’t know

Q6 Which of the following influenced you in considering it as wrong?

Social norms Religious belief Health reasons Others Not applicable

Q7 Do you think religion is the main factor for prohibiting homosexulaity Yes No Don’t know Q8 Which religion as per you most condemns homosexuality? Christian Islam Hindu Buddhist Other

Q9 Do you think sex should be restricted only for procreation (having chidren)? Yes No Don’t know

Q10 Do you consider sexual intercourse as essential for a companionship between people?

Yes No Don’t know

Q11 Do you think that companionship / sexual intercourse should be between male and female only? Yes No Don’t know

Q12 Which of these crimes shock you the most? Homosexual intercourse Grievous hurt Dowry death Rape

Q13 Would you consider consensual sex between a unmmaried male and unmarried female a crime? Yes No Don’t know

Q14 Do you think consensual sex between homosexuals be allowed? Yes No Don’t know

Q15 Would you consider consensual sex between two homosexuals a crime in par with rape / dowry death? Yes No Don’t know

Q16 Would you consider consensual sex between two homosexuals a crime? Yes No Don’t know

Q17 Do you think the Government should interfere with a persons sexual preference? Yes No Don’t know

Q18 Are you aware that homosexual intercourse in India is a criminal offence? Yes No Don’t know

Q19 Do you think imprisonment or any other punishment is justified for the crime of consensual homosexual intercourse? No Yes Don’t know Q20 Do you think it is time to decriminalize consensual homosexual intercourse? Yes No Don’t know

Additional comments if any: