References

jpafmat

Journal of Punjab Academy of Forensic Medicine & Toxicology

0972-56870974-083X

Punjab Academy of Forensic Medicine & Toxicology

jpafmat-15-1-editorial2

Editorial

Indian Sex Laws: The Imbalance

162015

1511120151620151620150172015

2015

IndianJournals.com

The Universal Declaration of Human Rights begins with the affirmation that “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Are the two sex related criminal law developments in India i.e. amended rape law and the re-invocation of Section 377, are in violation of the these universal human rights or not in balance so for as the transgression of the basic human rights of people by punitive sexual security apparatus are concerned, is still in the domain of discussion for the medico legal experts of this country regarding imbalance in Indian sex laws.

Rape is a horrific problem in India. Much of it is hidden as victims are subjected to structural coercion in a traditional patriarchal society and rape carries a strong stigma. For justice to be done, contested facts must be investigated and established, conflicting evidence and testimony sifted and evaluated, and guilt or innocence pronounced accordingly. Neither all men nor all women are criminals by virtue of gender; most relations of authority do pit women in an unequal power relationship with senior colleagues, but in some cases it is possible for wrongful or maliciously false charges to be leveled as well, for whatever reason. Any law that can be abused will be, under certain circumstances.

Seemingly meant to accommodate public anger, in rape cases, the burden of proof has been reversed such that it invites miscarriage of justice. The definition of rape includes any penetration by any object to any extent; there is no time limit within which the charge must be laid by the victim; this inevitably means that physical evidence to confirm is not mandatory and the judge legally obliged to believe the woman. That is, the judges must base their verdict upon the premise that, in matters pertaining to sex, women cannot lie under oath.

The new Criminal Law (Amendment) Act of 2013, as argued by Dr Ratna Kapur “has taken us dangerously in the direction of a sexual security regime rather than towards more rights” – a pathology clearly evident in the Supreme Court's verdict on December 11, 2013, upholding the criminalization of conduct that should be left to personal preferences. The Delhi High Court held section 377 of the Indian Penal Code to be incompatible with the fundamental principles of equality, dignity and non-discrimination of India's constitution. The Supreme Court reinstated it on appeal, arguing that repeal was a matter for the legislature. The Apex court in its ruling held that “those who engage in carnal intercourse against the order of nature” cannot claim equal protection under the constitution. The use of language such as “so-called rights” of lesbians, gays, bisexuals and transgender people who constitute “a miniscule fraction of the country's population” and practice sexual relations “against the order of nature” suggests that the ruling is based on prejudiced private morality than constitutional and legal scholarship and reasoning.

The UN High Commissioner for Human Rights, Navi Pillay responded to the Supreme Court decision to deplore it as a violation of international human rights. The 1966 International Covenant on Civil and Political Rights, to which India is party, enshrines rights to privacy and non-discrimination but criminalizing private, consensual same-sex sexual conduct violates this, she said. It is not the social purpose of criminal law to target and vilify activities and practices of groups that the majority dislikes. The consensus of modern medical and psychiatric opinion holds that homosexuality is not a disease or a disorder but one among different expressions of human sexuality. Instead of labeling it as a sin and crime by one school of thought and pathology by another, it can be better defined as “a habit in the human beings created by and a product of the circumstances leading them away from the natural defined sexual course.

Leaving Section 377 on the statute books reduces all homosexuals to the status of “unapprehended felons” turning their lives into one of misery, fear and apprehension. It opens the door to discrimination in employment and housing; social and other types of harassment; blackmailing under certain situations and private violence rooted in publically legitimized bigotry. As a shield against being criminalized in law and stigmatized in society, the affected people may agree to enter into heterosexual marriages, with adverse consequences for the emotional health and wellbeing of partners and children. Another unintended and perverse but predictable consequence is the reluctance to seek medical help for suspected sexually transmitted diseases, including HIV/AIDS, with detrimental flow-on implications for public health.

The Supreme Court ruling was hailed by conservative religious class but condemned by most media commentators for targeting members of a minority for who they are, thus pushing the issue and fate of same-sex relationships firmly at the vertex of religious, social, political and judicial beliefs and cross-currents. The antique law needs to be repealed on review by the full bench of the Apex Court, failing that, by Parliament with all-party support or this Section of Indian Penal Code which defines unnatural sexual offences can be amended with addition of one exception that such carnal intercourse can be permitted between two individuals with mutual consent and in private maintaining complete public decency so that compelling desire of the gay class is fulfilled under the constitutional parameters.

References1.

Thakur

; The imbalance in India's sex laws; The Tribune; 1012014; p. 19.

Bhullar

D S

; Editorial; Historical Journey of Gay to Indian Medico Legal Corridors.

Indian Penal Code, 1860: Of offences affecting the human body.