The Legal Solution India’s LGBT Community Should Seek

The LGBT community must press for court-mandated guidelines for the police and magistrates, writes Rajinder Kumar.

The existing definition of an offence under Section 377 of the Indian Penal Code (IPC) declares all sexual relationships, other than those involving only penile vaginal intercourse between consenting adult male and female, as a cognisable offence.

Members of the LGBT community therefore are under constant threat of persecution and social disgrace at the hands of a whimsical police officer who could suo moto register an offence under Section 377 even without a complaint from any aggrieved person, against both the participating partners in homosexual intercourse and arrest them without a warrant from a magistrate.

Consensual sex between two adult and sane persons (whether male female or transgender) is their private affair and the state has no right to regulate it. Section 377 to some extent violates the right to privacy, life, liberty and dignity guaranteed under Article 21 of the Constitution.

Weak Arguments

If the LGBT community has failed to get the desired order from the Supreme Court, they should not blame the judges but their legal pleadings in the apex court. LGBT, human right activists and liberals had criticised Justice GS Singhvi and Justice S J Mukhopadhyay for being too conservative in dealing with the matter. Yet, the judgement of December 11, 2013, in the case of Suresh Kumar Kaushal vs Naz Foundation entertained no religious, regressive or narrow-minded arguments and was solely based on legal technicalities.

In the matter of Naz Foundation, the crux of the LGBT community’s argument was limited to the criticism of :

i) The heading of the offence under Section 377 i.e. “Unnatural offences” and the term “against the order of nature” to justify consensual homosexual relationships of man with man and woman with woman or transgenders. The real mischief lies not in Section 377 but in Section 2C (definition of cognisable offence), First Schedule read with Section 154 of the Criminal Procedure Code.

ii) The combined effect of all these sections of the IPC and the CrPC empowers a police officer to register a criminal case not only on the basis of a complaint by the victim of such an offence but even lodge suo moto FIR on the basis of his own information and arrest the accused person involved in the alleged act even if they were consenting adults. Misuse of law by police cannot be a justification to retain the provision in its current form on the statute book.

Making for a Strong Case

• If the LGBT community has failed to get the desired order from the Supreme Court, shortfall lies in their legal pleadings.
  
• The judgement by the Supreme Court entertained no religious, regressive or narrow-minded arguments and was solely based on legal technicalities.
  
• Fault lies with various sub-sections that empower a police officer to register a criminal case and even lodge suo motto FIR.
  
• Parliament’s unwillingness to take a stand does not mean that relief cannot be given by courts.
  

Court Can Provide Relief

At the same time, forcible sodomy against the weak and poor is as prevalent as rape. Children need to be protected from sexual predators. Section 377 cannot be removed from the statute book in entirety. The judges themselves had suggested that Parliament could amend the law if it thinks it necessary.

But over the next 50 years, Parliament is unlikely to change the law given the predominance of MPs with conventional mentality and representing populations steeped in traditions and religion. But it does not mean that relief could not be given by courts to the LGBT community.

A golden opportunity would be available to all those who are in favour of the rights of homosexuals, lesbians and transgenders whenever the matters is next heard by the five-member Constitutional Bench of the Supreme Court. They should not insist too much on declaring Section 377 as unconstitutional but rather impress upon the court to frame guidelines which should be followed by the police and magistrates while registering offences under the law. These guidelines could be on the same pattern as laid down in D K Basu vs State of West Bengal regarding arrest.

Specifying Guidelines

These guidelines may stipulate that :

i) A police officer would not register an offence under Section 377 other than by obtaining a written complaint from an adult person against whom the offence has been committed and who shall also declare that the alleged sexual intercourse was not consensual.

ii) The police officer may take notice of the offence on the complaint of minors, legal guardians or suo moto  where the offence involves minors or persons of unsound mind, provided their legal guardians or the police officer concerned declare such incapability in the written complaint.

iii) Since gay or lesbian relationships are more fragile and because in India same sex marriages are not recognised under law, courts may also direct the Centre to maintain a digital registry of LGBT persons where those with unconventional sexual proclivities could voluntarily register themselves and their partners (through there Aadhar Identity) as a proof of their homosexual relationship to avoid any criminal liability in case the relationship went sour.

As a safeguard against misuse, this data should not be available to anyone, including the police, and should be produced on the order of a magistrate under warrant in a criminal proceeding.  The registration should not create any other civil right, including maintenance, inheritance and share in property in favour of any person who declares his sexuality. It would also help check the spread of AIDS and bring stability in homosexual relationships.

(The writer is a former Special Director, Intelligence Bureau)

Also read:

A Stand of Inequality: Parliament’s Indifference on Section 377

Shashi Tharoor on Three Laws for a More Liberal India