Gay Rights.

India being a welfare state has gone beyond its traditional obligations to administer the nation. It is also concerned with the beneficial interest of the mass such as public safety and protection of health and Morals.Right to Privacy is not an absolute right.

"The US Supreme Court has recognized the centrality of the family. In an opinion on the right of privacy, Justice Harlan said:

"The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal inquiry, however privately practiced ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected."[1]

In Vijaya v. Chairman and Managing Director,Singareni Collieries Ltd[2], it was stated that Subjecting an individual to compulsory HIV testing was not unconstitutional even though it infringed the individual’s right to privacy because the state also had an obligation under the constitution to take steps to improve public health.

Section 377 of the Indian Penal Code deals with the unnatural carnal intercourse against the order of nature. Consent of the parties is immaterial and the party consenting is equally liable as an abettor. The Unnatural offences discussed under this section are Sodomy and Bestiality.

Sodomy may be either Homosexual or Heterosexual. In case where the parties are of the same sex, it will be termed as Homosexual and if the parties are of the opposite sex it will be called as Heterosexual.

"The physiology of the rectum makes it clear that sodomy is unnatural. The Inward expansion of the rectum during anal intercourse frequently tears the rectal lining, resulting in spasms, colitis, cramps, and a variety of other physical responses. Furthermore, sperm can readily penetrate the rectal wall (the vagina cannot be so readily penetrated) and do massive immunological damage, leaving the body vulnerable to a bewildering variety of opportunistic infections." [3]

Since there is no systematic study or survey regarding the Diseases Related to Homosexuality

 in India, we cite the survey conducted in some countries.

Diseases Related To Homosexuality

1. Mental Illness

A New Zealand study which followed 1007 individuals since birth found that at the age of 21, the 28 subjects classified as gay, lesbian or bisexuals were significantly more likely to have had mental-health problems than the 979 classed as heterosexual.[4]

2. Kaposi Sarcoma

The International Journal of Dermatology explains why homosexuals’ behaviors place them at high risk for this disease, which affects the mucous membranes and the skin of its victims:

“In this high risk group [the gay male population], the predominant portal of entry of free and cell-bound HIV as well as the brunt of associated cofactors and opportunistic infections can be traced to both ends of the gastrointestinal tract (mouth and anus) and also the genitalia, which happen to be common sites for KS lesions in addition to their lymphatic watersheds.”[5]

3. Hodgkin’s Disease

Homosexual men suffering from HIV/AIDS also suffer from other cancers and lymphomas. One study published in the Annuls of Medicine noted the connection between homosexual AIDS patients and Hodgkin’s disease. The study concluded, “An excess incidence of Hodgkin’s disease was found in HIV infected homosexual men.” The Journal of Clinical Oncology published a study that further supports a connection between homosexual male AIDS patients and Hodgkin’s disease.[6]

4. Anal Cancer

The Journal of the American Medical Association also published similar findings: "Epidemiological studies have shown that risk factors for anal cancer include homosexuality, history of receptive anal intercourse, presence of anal condylomata, and smoking." [7]

5. Impairment of Immune Response

Several researchers have concerned themselves with the immune dysfunction consequent to the direct entry of semen into the bloodstream by means of anal intercourse. Joseph Sonnabend has argued that repeated exposures to semen combined with various sexually transmitted disease pathogens result in impairment of immune response. Robert Root-Bernstein concluded that exposure to semen through anal intercourse can initiate lymphocytotoxic autoimmunity. Another researcher who recognizes the pathogenic effects of semen is Eleni Papadopulos-Eleopulos. [8]

6. AIDS

The CDC reports in its June 2000 HIV/AIDS Surveillance Report that men who have sex with men (MSM) account for the majority of AIDS cases in the United States.

AIDS CASES BY EXPOSURE CATEGORY

Male                Female            Total

Men who have sex with men                                      348,657                       -           348,657

Injecting Drug Use                                                     137,650           51,592             189,242

Men who have sex with men and inject drugs           47,820             -                       47,820

Hemophilia/coagulation disorder                                4,847               274                  5,121

Heterosexual contact                                                  27,952             50,257             78,210

Recipient of blood transfusion,

blood components, or tissue                                       4,920               3,746               8,666

Risk not reported or identified                                   48,343             19,042             67,387

* Includes 3 persons whose sex is unknown.

Numbers are based on AIDS cases reported to CDC through June 2000.[9]

Hence we see that protection and safety of Public Health and Morals is one of the important duties of the state and in order to do so the state can transgress the right to privacy of an individual.

Offences like Adultery, Causing Miscarriage etc. are unlawful irrespective of its taking place on a consensual basis. Similarly, Unnatural Offence that is technically unlawful, being against the order of nature, cannot be rendered legitimate simply because it takes place on a consensual basis.

Adultery as defined in Section 497[10] states that:

Whoever has sexual intercourse with a person who is and whom he knows to have reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

In case of Adultery both the parties to the crime have their consent. In fact the woman is always a willing party and consenting party to sexual intercourse.

Causing Miscarriage as defined in Section 312[11] states that:

Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be also liable to fine.

Explanation:- A woman who causes herself to miscarry, is within the meaning of this section.

What harm is done if the activity is between consenting adults?

The fact that two adults consent to an action doesn't make it morally right or socially acceptable. The "harm" is that such reasoning leads us down a very dangerous and permissive slope to the detriment of the common good and the spiritual impoverishment of the individuals involved. After all, two consenting adults can engage in drug use, prostitution or other immoral activities. In other words, the determination of the morality of an action is found in the act itself and not in the consent of the people involved.

Homosexuality means warring against nature’s order, making human beings use their bodies in a way no animal, domestic or wild; no fowl, no bird of any description, no reptile would even try. It is repulsive for respectable human beings who know what their reproductive organs were meant for, to indulge in any experiment that is contrary to nature’s order. Perverts, deviants, psychopaths and all such will always find excuses to explain their bizarre relationships. To endorse sodomy and bestiality so as to avoid what perverts call ignorance, prejudice, hatred and religious fanaticism will be throwing the doors open for more devastating plagues  to join HIV/AIDS now ravishing many homes.

On the basis of the facts it can be corroborated that acts like Adultery, Causing Miscarriage,  sex determination of the Foetus, etc which are technically unlawful  cannot be rendered legitimate even if it is done on consensual basis. Similarly, an act done under Section 377 of the Indian Penal Code cannot be rendered legitimate even if done on consensual basis.

Offences like Paedophilia, Necrophilia, Bestiality, etc comes under the purview of Section 377 of the Indian Penal Code. Therefore deletion of the said section can open the floodgates of delinquent behavior and be misconstrued as providing unbridled license for the same.

The absence of a preventive ordinance like Section 377 of the Indian Penal Code is the stuff of which legal nightmares are made. Absence of such ordinances gives to homosexuals and takes away from society at large. They take away, among other things:

(1)   The right of parents or school districts to control the moral calibre of the person who teaches their children;

(2)   The right of an employer to determine whether an applicant’s moral character will affect his job performance;

(3)   The right of Temples, Mosques, Churches, Gurudwaras and other religious entities to exclude, or refuse to hire, someone whose lifestyle is contrary to their religious convictions.

Deletion of Section 377 of the Indian Penal Code, technically provide legal protection for more than just homosexuals. They typically provide protection to anyone, regardless of sexual preferences. Any learned judge would find that such laws give protection to a large number of sex criminals. As for example, the possible protected behaviors under the absence of Section 377 of the Indian Penal Code:

* A convicted child molester[12], homosexual or heterosexual, could sue a day-care centre that refuses to hire him, claiming discrimination on the basis of his “sexual orientation”; deletion of Section 377 of the Indian Penal Code would thus protect behavior declared criminal under state law.

* A motel owner could be sued if he refused to rent a room to an unmarried couple[13]. This would be discrimination in the use of “public accommodations”. This would also be discrimination on the basis of “sexual orientation”, in this case their sexual preference for unmarried people or for people married to someone else. Deletion of Section 377 of the Indian Penal Code would be protecting behaviour declared criminal under state law.

* An insurance company could be sued for refusing to extend health insurance benefits to the sodomy partner of a homosexual. The insurance company would be discriminating on the basis of “sexual orientation” by refusing to extend coverage to “spouses” because of their sexual preferences. Since Sodomy would not be an offence after deletion of Section 377 of the Indian Penal Code.

* A landlord who refuses to rent[14] or sell a facility to a person running a house of prostitution could be sued for refusing to rent or sell housing based on the person’s “sexual orientation”. Yet prostitution is a crime under (state) law.

* A bank that refuses to loan money to moviemaker who enjoys making and selling child pornography[15] would be discriminating against the moviemaker on the basis of his “sexual orientation”. Yet the making and selling of child pornography is a crime under most state law.

Deletion of Section 377 of the Indian Penal Code could protect behaviour declared criminal under state law.

Thus it is proved beyond reasonable doubt that deletion of Section 377 of the Indian Penal Code can open the floodgates of delinquent behavior and be misconstrued as providing unbridled license for the same.

Every society has a variety of moral principles. Without these moral principles a society cannot survive. Society can use the law to preserve morality.

Section 377 is that law which strives to preserve the morality, rich culture and traditional heritage of India. Repealing it would pave way towards indulgence in unnatural sexual activities against the order of nature which would in turn pollute the entire society by encouraging others to indulge and abet in this crime.

Homosexuality in the household can also be detrimental to the upbringing of the children, who are the building blocks of the nation.

Homosexuality is essentially antifamily. It encourages promiscuous sexuality, a self-centered morality, and socially irresponsible behaviour that exact huge costs from society. The law has every right to discourage people from entering into paths that are demonstrably destructive, -- physically and psychologically -- first to themselves, then to society itself.[16]

Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.

Sexual orientation of a parent is critical to the upbringing of a child. Society is based on the ideal of having heterosexual parents. Children who are raised in ‘alternative family lifestyles', are more likely to engage in drugs and have negative feelings towards their parents and themselves, than children raised by normal families. To allow an act such as indulgence in unnatural sexual activities to continue, it displays that we have blatant disrespect for our children's future.[17]

Religion plays an important role in the lives of the individuals and groups. The law of the land is also enacted keeping in mind the benefit of the society at large. India is multicultural country. It is the abode to the Hindus, Muslims, Christians, Jews, Parsis, Sikhs, Jains, Buddhists, etc. Indulgence in unnatural sexual activities goes against the basic tenets of the faiths of the majority of the people of India.

Hinduism:

Scriptures like Manusmriti does not accept homosexuality. The Law of Manu states that any person indulging in unnatural sex shall be fined with 24 panas[18]

Islam:

Islam clearly considers homosexuality to be sinful. Homosexuality is described in Islamic scripture as a profound mistake. According to Islamic believes, homosexuality is not within human nature, but people become gay because of their environments. [19]

Christianity:

There are many Christian congregations that are strongly against homosexuality. The Bible refutes homosexuality. [20]

“It is not my opinion–it is the verdict of the sastra[scripture]. Opinion–what is the value of opinion when the people are like dogs and asses? What is the use of taking the opinion of an ass? This vox populi–taking the opinion of the public–is degrading modern society. If the public is composed of drunkards, smokers, meat eaters, gamblers, and woman hunters, then what is the value of their opinion? Why take the opinion of fourth-class men? What Krishna says–that is the standard. Krishna is the supreme, and His version is final. No other opinion is allowed. When I introduced the principle “No illicit sex life,” I didn’t ask for opinions–”It must be done.” [21]

Today the issue of decriminalization of homosexuality has arose in the pretence of fundamental rights. Once homosexuality between adult consenting males is decriminalized then the issue of Gay and Lesbian marriages would be raised. Once the Gay and Lesbian Marriage is legalized then the issue of adoption of child would be raised. And all these issues will finally lead to the corruption of the morals of the people in the society.

Until now people have grown up looking at the heterosexual pairs and known them as to be Mother-Father, Uncle-Aunt, Husband-Wife, Mr-Mrs, etc but what would be the condition when two males start living together? Would they be called as Father-Father, Uncle-Uncle- Husband-Husband, Mr-Mr, etc?

As it is already proved beyond reasonable doubt that indulgence in unnatural sexual activities against the order of nature is polluting the entire society by encouraging others to indulge and abet in this crime, Section 377, the law which strives to preserve the morality, rich culture and traditional heritage of India, should not be repealed.

Dear Sisters/Brothers,

Please circulate this writing among your friends and relatives and make them aware regarding the ills of homosexuality and the negative impact it will cause if S.377 of the I.P.C is repealed. May Allah make us wise and understanding.

Jazakallah.

Sheikh Khurshid Alam,( B.A.LL.B IIIrd Yr, Deptt. Of Law, C.U)

District Secretary, Kolkata,

Students Islamic Organisation of India, ( www.sio-india.org )

ashshamsgroup@yahoo.co.in

Mobile: 9051392427