Question: Mathew Joseph
The Court seems to take a stand that it will not interfere with private affairs of citizens, then why are they banning sex with animals or incest? Is there a relevant value which should be defended by this section 377? What is scientific basis of homosexuality? Is sexual identity a socio-cultural construct? if so what is social consequences of this legal act?
Answer: Saji Mathew Kanayankal CST
Section 377 of IPC says “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.”As per the explanation, any form of sex other than penovaginal sex is prohibited under this law and penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The present discussion on section 377 began with a court order on 2 July 2009 by chief Justice Ajith Prakash Shah and Justice S Muralidhar that this section of IPC is violative of certain Constitutional Rights such as Right of Protection of Life and Personal Liberty (Article 21), Right to Equality before Law (Article 14), Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth (Article 15). Further, it is noted that section 377 also denies the basic human rights to the sexual minorities – the LGBT (Lesbian, Gay, Bisexual, and Transgender) community in the country. However, on 11 January 2013 the Supreme Court overturned the previous verdict and decriminalized consensual sex among adult homosexuals. Later on, on 08 January 2018 in response to a fresh plea, the present Chief Justice of India Dipak Misra decided to re-examine the constitutional validity of Section 377.
Although this law does not explicitly mention gay relations or LGBT community, it is observed that this particular section is widely used to discriminate, blackmail, humiliate and harass LGBT community. It also affects the dignity of homosexuals and lesbians, for they are considered as less human beings for they do act against law. It is argued that the fundamental rights, human dignity and privacy of these people are challenged because of this law. In a nutshell, under the umbrella of this law, the LGBT community is chained in India.
One of the important argument against this section is that this law is originated from the British, with the Christian belief that condemns sodomy. They included this section in the penal code of India after the rst war of Indian independence “imposing their values upon us.” Sexual activities including of homosexuals were not penalised in India before the inclusion of this law.
LIMITATION OF THE SECTION 377
Many social scientists and experts have pointed out that the section 377 is very general which lacks precise defiition. Since it says all kinds of sexual inter- course other than man-woman/ hetero sexual- penile- vaginal is punishable, as per the law, any form of sexual union involving penile insertion, including consensual heterosexual acts involving unnatural penetrations may be punishable under this law. Moreover, in defiing the terms such as ‘carnal intercourse’ and ‘order of nature’ the IPC has been vague and the meanings of these terms are ambivalent. The Supreme Court has already stated that the meaning of carnal intercourse should be fluid in nature and not rigid. But when there was the question on criminalisation of consensual sex between two adult homosexuals, the answer was affirmative.
With regarding the question that the court seems to stand that it will not interfere with private affairs of citizens, it should be cleared that the constitution does not provide the right to privacy as an absolute right. However, the Supreme Court in time and again reminded that the individual’s right to privacy is not violated under any circumstances by the state and any infringement of this right may result damages.
However, since this right is not absolute it is subject to exceptions. As Lord Dennig points out, “the exceptions are to be allowed whenever the public interest in openness outweighs the public interests in privacy.” The right of privacy has to go case by case development. In short, this fundamental right is to be subject to restrictions on the basis of compelling public interest. Therefore, the court can intervene the private affair of an individual if it harms the public interest or it pertains the common good. With regarding the sex with animals and incest, it cannot be limited to the privacy of an individual since it affects the family as well as society. However, since the section 377 is used for discrimination and it lacks clarity, a logical reconsideration and reformulation of the law would be appreciative but it should not be at the cost of the nation’s morale and long cherished tradition. The exception for LGBT or homosexuals should not turn as a licence to fulfil one’s deviated sexual pleasures.
SCIENTIFIC BASIS OF HOMOSEXUALITY
The researchers vary in their opinions and descriptions with regarding the scientific basis of homosexuality. The ‘homosexual person’ is “one who feels sexual desire for and sexual responsiveness to persons of the same sex and who seeks or would like to seek actual sexual fulfilment of this desire by sexual acts with person of the same sex” (The Encyclopaedia of Bioethics). Accordingly, a homosexual person sustains a ‘predominant, persistent, and exclusive’ psycho sexual attraction toward member of same sex.
There were many studies and analysis regarding the cause of homosexuality especially after the report of Kinsey Institute on sex in 1955. In those studies, the most important question is whether a person’s makeup is biological or environmental. Some researchers would speculate that homosexuality is the by-product of upbringing, especially in the relationship of child with his/her parents. Some would focus on physical causes such as brain structure or hormone exposure and others would focus on the genetical code.
CAUSES OF HOMOSEXUALITY
In 1991, a biologist Simon Le Vay published his research with some indications that variations in sexual orientation take place on account of the difference in brain structure. He found some anatomical form in some homosexual men that is usually found in women and homosexual orientation can be seen as natural as variation from the average of left-handedness. However, Le Vay clarified that his finding contains no direct evidence that he actually observed homosexuality. It was observed that his methodology was not precise and logical and he was also criticised for biased analysis.
Though neuroscientists like Sandra J. Witelson and her col- leagues made some researches on this line, they could not categorically establish that homosexuality is the result of the structure of brain. Witelson writes, “The important [point] is that several independent studies have shown that various brain structures are different between people of different sexual orientation.” After analysing the twins and lay lesbian siblings, the scientists Michael Baily and Richard Pillard say that male sexual orientation is substantially genetic. In their study on different types of gay, the ratio varies. With identical twins, the other twin has approximately 50% chance of being gay. In the case of fraternal twins, the chance is 16% and when it comes to non-genetically adopted brothers and sisters, the chance again reduces to 9% which is normal statics. In July 1993 a team of US National Institutes of Health Sciences published the
result of their research that they have identified a small stretch of genetic material that is linked to male homosexuality. Among the 40 pairs of gay brothers they examined, 33 of them inherited identical sequences of DNA. However, they could not find why 7 of the 40 pairs of gay brothers did not inherit genetic marker. One among them speculated that these gay men have inherited other genes associated with homosexuality or may have been influenced by environmental factors or life experiences. It can be concluded that even if there is the possibility for genetic and biological basis for homosexuality, all homosexuals are not of such sort.
Though there are theorists who suggest that homosexuality is biologically determined, the direct research in supportive of this hypothesis is not very. However, it is to be accepted that for few individuals prenatal as well as hormonal influence may be one of the factors of homosexuality. But this cannot be considered operative in all homosexual persons. Some other studies report that homosexuals have too much or too little of certain sex hormones compared to others.
The psychoanalytic theory would say that homosexuality is due to ‘a profound disturbance’ in parent-child relationship. For example, if the father of a boy is distant, unavailable and rejecting and the mother is overly warm, soothing and controlling, there is possibility to develop an am- bivalent feeling of fear and it will be difficult for him to identify with father with the chances of leading attraction to the same sex. There are some cases that this principle is applicable for lesbian women too.However, there are also studies that contradict this psychoanalytic theory. From the view point of learning theory, the sexual orientation is shaped through the early and other sexual experiences. The evidence to support this theory is less substantial to psychoanalytic theory.
Psychologists like Joseph Nicolosi would argue that homosexuality is a developmental problem resulted from the difficult relationships in the family. If there is failure in the relationship with father, the boy does not internalise male identity which leads to develop the homosexual orientation.He also points out the poor peer relations can be identified with these types of boys and the prehomosexual boy is alienated from his body which may trigger shyness that further leads to the attraction from the same sex. Though many psychological analysists do not see any significant influence of genetics on homosexuality, they agree with some possibility of genetic contributions.For them the so called ‘homosexual gene’ is mythical. “Gender-identity deficit is the internal, private sense of incompleteness, or inadequacy about one’s and this is not always evident in explicit effeminate traits.”Psychologists like Joseph Nicolosi would argue that two men can never “take in each other” in a full and open way not only because of their natural anatomical unsuitability, but also due to the inherent psychological insufficiency. Each symbolic and sexual attempt to find fullment in other person ends in ‘disillusionment,’ for the other person is not whole. Therefore, he concludes that “no man can ever be truly at peace in living out homosexual orientation” (Reparative Therapy of Male Homosexuality). However, later on, researchers like Bell, Weinberg and Hammersmith challenged the theories of Jospeh Nicolosi and argued that parents do not in uence the sexual behaviour of their children.
So as per the information available in the present day, it is not easy to make a conclusive judgement on cause of homosexuality or lesbianism. Though the possibility of genetic influence cannot be categorically denied, we lack clear demonstration for the same. In short, the cause or causes for homosexuality is multidimensional, situational and contextual.
However, we have to make differentiation between homosexual orientation and gay culture. While homosexual orientation refers to the homosexuals who are born so by genetic, biological or psychological reasons, the ‘gay culture’ is the offshoot of the modern individualistic misconception and misuse of human freedom. The gay culture also can be a product of cultural constraint that promotes deviated carnal pleasures. Apart from biological, genetical and psycho-logical dimension, a person has spiritual and moral dimensions too. It is also necessary to make distinction between homosexuals whose tendency comes from a false education, from a lack of normal sexual development, from habit, from bad example or cultural constraint. When the court makes its statement on the issues of homosexuals or transgenders, if it does not pay attention to the multifaced dimension of it, it may further create more confusion and there is possibility of developing a culture that justifies all kinds of personal whims and fantasies.