By Aishwarya Srivastava, UPES, Dehradun
Editor’s Note: Should homosexuality be legalized? The paper focuses on the moral dilemmas involved in legalizing homosexuality and questions the effect it will have on the institution of marriage and procreation. Law is forever dynamic and must change with changes in society. However, with changes in society, the law cannot succumb to every whim and fancy of individuals and cannot make something that is against the basic framework of society a norm. In contrast, the paper recognizes the right to life of individuals and appreciates that the law cannot encroach upon the privacy of people who are of age and consent to accept a partner of the same sex within the confines of their homes.
Should Homosexuality be legalized? The question has crossed the mind of every individual and has been answered differently by each of them. Each and every person has a different opinion about it and therefore different countries have a different set of laws when it comes to homosexuality. It has existed since time immemorial. It was not uncommon in ancient Greece and Rome. Edward Gibbon said that only Claudius was among the first twelve emperors, who involved with women, all others took either boy or man as lover and Nero was the first Roman emperor to marry a man.
The relationship between Alexander the Great and Hephaeton is a famous homosexual relationship. Allen Tulchin revealed in his commonly known article that same-sex civil union existed in late Medieval France and in other European countries. Aristotle stated that “Creation encouraged homosexuality as a population controller in the island community in his politics.”
This issue was brought to light in India where on 11th December 2013 a landmark judgment was passed by the Supreme Court that quashed the judgment of the High Court of Delhi and upheld the validity of the S.377 of the Indian Penal Code, 1860. India is a country of traditions. Values, culture, religion, and righteousness play an important role in the country. Following the Supreme Court judgment upholding, homosexuality in India was condemned extensively.
Taking into regards the legal morals of the country, homosexuality is considered as an immoral sexual behavior which is still not recognized in our social ethos despite having some sections of people support it as part of Fundamental Right to Life. There has been a big hue and cry about the same in the country claiming it to be the violation of human rights and interference in the private well-being of the people.
Violation of human rights cannot be presumed because human rights basically talk about liberty and dignity of life and all such liberties are subject to a restriction. If tomorrow someone wants to walk around naked claiming it as his right to life, then that would be wrong because it would be against the norms of the society. The criminalization has been made in order to restore the ethics of the country and therefore glorifying such activities would result in influencing the upcoming generation resulting in the increase of homosexuality.
It would then lead to the disruption of the marriage institution and the population in the country would decrease. It’s not that everyone after decriminalizing it would become gay but in order to restore the morals of the country and stop the publicity of the same, such action was necessary.
If the Delhi High Court decision was not struck down then on the basis of the same principle which was applied, prostitution should also be legalized as being part of the fundamental right of trade and occupation as recognized under Article 19(1)(g) of the Indian Constitution. At present prostitution is illegal in our country. In big cities as well as small ones there are red streets, they are centers of prostitution. It may be an unavoidable incident but the law does not recognize it. Henceforth our society looks down on homosexuality under similar criteria considering it as unnatural and against the order of nature.
Considering the change in time, thinking of the coming generations, culture, and acceptability in this era of globalization, homosexuality is no more a topic of less commonality. The world is progressing and modernization has taken place. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values.
If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth.
Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind. It must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation. We cannot therefore mechanically accept as valid a legal rule which found favor with the English courts in the last century when the doctrine of laissez-faire prevailed.
It may be that even today in England the courts may be following the same legal rule which was laid down almost a hundred years ago, but that can be no reason why we in India should continue to do likewise. But no law should be transformed to the extent that the result of it would be immoral of its kind. The wisdom of the Supreme Court in the recent Naz Foundation case should not be faulted with. It is true that in as much as 114 countries in the world have accepted homosexuality and other sexual orientation but at the same time, 83 countries in the world including India still have criminalized it is not in conformity with public moral and social health.
The Supreme Court said that Parliament can repeal this provision and is propriety and desirability demands but so long as it is in the statute book, it cannot be struck down being unconstitutional.
However, the ground reality cannot be ignored that at least homosexuality in private between consenting adults should not be a matter inviting concern and rigors of criminal law otherwise a person can be prosecuted and punished only for his sexual orientation.
Moral policing in this field cannot be welcomed rather that must be avoided and so long as the provision remains in the statute book and is not repeated or an explanation as envisaged in Delhi High Court judgment is added, which is now is overruled. Necessary directions to the police and law enforcing agencies should be issued by the government to respect a persons’ right to privacy meaning right to be left alone and pursue his sexual preferences in private and in the company of consenting major partner.
Formatted on March 13th, 2019.