Tightening the Noose Around Anti-Sodomy Laws: Global and Local Perspectives On Human Rights and Homosexuals

Abstract

This paper seeks to analyze the rights accorded to homosexuals as a sexual minority with special reference to India. Specifically, the object is two-fold: firstly, to establish that even homosexuals have a legal right to marry in India; secondly, to establish the unconstitutionality of anti-sodomy law in India (Section 377 of the Indian Penal Code). The right to marry being a basic human and fundamental right in India, denying homosexuals this right would amount to discrimination. The principle of non-discrimination on the basis of 'sex' - enshrined in the Indian Constitution - includes within its ambit non discrimination on the basis of 'sexual orientation', thereby implying that 'sexual orientation' is a subset of 'sex'. Further, the paper shall establish the unconstitutionality of anti-sodomy law in India which was essentially a crystallization of the western Judeo-Christian heterosexual paradigm by the British during their rule over India, and how such laws have now been discarded and repealed by a majority of these very western nations. The legal invalidity of the provision shall be based upon: the legal doctrines of unreasonableness, arbitrariness, non-discrimination on the basis of sex and the right to privacy - all enshrined under the Indian Constitution; the doctrine of desuetude; and on the basis that the said law violates India's various international obligations and would in reality lead to the 'underground' spread of sexually transmitted diseases. Throughout the paper references to the global scenario concerning homosexuals and their legal rights are made to provide a comparative analysis.