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Sodomy Laws in India and the US

Updated: Mar 7

Abhiraj Agarwal, Assistant Student Editor, Nyayshastram.

Sexual offence laws currently ban all sorts of forcible conduct and sexual behaviour toward persons who do not consent or may not consent (such as children and people who lack the mental capacity to give meaningful consent). Traditionally, though, there were essentially two types of sexual offences: rape and sodomy. Rape laws have criminalized vaginal intercourse with a female who is not your partner. Sodomy laws forbade non-procreative activity with others. Sodomy laws had become a method of punishing any sexual activity apart from vaginal intercourse, whether consensual or not.


Acts falling under the term sodomy can vary significantly. Only anal sex involving two men may be included in the limited concept of sodomy. Moreover, apart from vaginal intercourse, even oral and anal sex, either amongst two individuals of the same gender or a man and a woman, sodomy could also be quite generally defined to include any sexual penetration.[1] Sodomy laws against married couples have rarely been imposed and were primarily used to punish homosexuals.


I. India

The European colonizers had brought contemporary social homophobia to India and the British enforced Section 377 (modelled on the Buggery Act of 1533), which lasted for more than 70 years following the Independence of India. Under Section 377 of the Indian Penal Code, which came into force in 1861, the British Raj criminalized anal sex and oral sex (for both heterosexuals and homosexuals) and declared it an offence. It was never, however, used against consenting heterosexual individuals and was gravely misused against homosexual individuals.


Intellectuals also speculated that Section 377's original purpose was to serve as a means through which the colonizers could further control the general populace's body and regulate it.[2] In order to ban discrimination based on sexual orientation and gender identity, the country has specifically interpreted Article 15 of the Constitution.[3]


II. Decriminalization/Repeal Of Sodomy Laws

The Delhi High Court in its decision in 2009 in the case of Naz Foundation v. Govt. of NCT of Delhi [4], ruled in favour of the Naz Foundation and acknowledged its claims that it was appropriate to decriminalize consensual same-sex sexual relations between adults. However, Section 377 was not struck down it in its entirety by the Court.[5] While significantly emphasizing on domestic judgements, the Court also referred to judgments from different countries, including the European Court of Human Rights, the United Kingdom, the Republic of Ireland, South Africa, and the USA, in making its decision.[6]


The Supreme Court overruled Delhi High Court's judgment in Suresh Kumar Koushal v. NAZ Foundation[7] , and it found that Section 377 did not violate the Constitution and hence was legal. It was noted that to determine that the law was unconstitutional, it had to be established with means of proof, that the law was in breach of the Constitution. The Court found that there was insufficient evidence to prove that S.377 IPC was invalid under the Constitution. The Supreme Court also said that the Delhi High Court depended on cases from many other jurisdictions in its fear of protecting the so-called rights of LGBT people.[8]


In Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India and Ors.[9] the Supreme Court of India has stated that the Right to Privacy is a Fundamental Human Right. Section 377 was mentioned in the judgement as "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy." While the 9-judge bench was delivering its judgement, Justice Chandrachud observed, that the reasoning behind the Suresh Koushal (2013) judgment is wrong.


In 2018, the Supreme Court's five-judge constitutional bench began hearing a petition challenging the constitutionality of Section 377 in Navtej Singh Johar v. Union of India.[10] In order to argue against the constitutionality of Section 377, the petitioners relied on the right to sexual privacy, equality, rights against discrimination and freedom of speech. The Supreme Court delivered its decision on September 6, 2018, and unanimously ruled that Section 377 was unconstitutional because it violated the fundamental rights of liberty, privacy and identity and thus legalized homosexuality in India.[11] The Court expressly reversed its 2013 decision.


III. United States of America

In the United States, Sodomy laws are mainly a matter of state instead of federal control, except for laws regulating the United States Armed Forces. All states had some form of legislation criminalizing sodomy in the 1950s.[12] The sentences for sodomy in the different states ranged from two to ten years in jail and/or a fine of US$2,000 in the early 1960s. In 1961, Illinois had become the first jurisdiction in America to repeal the prohibition against consensual sodomy.[13]


Decriminalization/Repeal Of Sodomy Laws

Before 1962, sodomy was a crime punishable by a lengthy jail sentence and/or hard labour in every jurisdiction. In the same year, the Model Penal Code (MPC), established by the American Law Institute to encourage uniformity among all states, came to an agreement that would remove consensual sodomy from its criminal code along with the law that makes it illegal to engage in sodomy.[14]


In Bowers v. Hardwick[15], the Supreme Court in 1986 held that there was no constitutional right to indulge in homosexual sodomy. The majority decision, written by Justice Byron White, argued that the Constitution did never conferred "a fundamental right to engage in homosexual sodomy." The right to privacy was the issue in Bowers.[16] The Court has ruled that a right to privacy was implied in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution following 1965's Griswold v. Connecticut.[17] The Court held that in Bowers the Right to private, consensual sexual conduct did not apply, at least in some ways as it included homosexual activity.[18]


In 2003, Justice Kennedy wrote Lawrence v. Texas[19], which overruled Bowers. The Court struck down the sodomy law in Texas in the 6-3 decision and by extension, nullified sodomy laws in 13 other states, rendering sexual intercourse of the same sex legal in every state and territory of the United States. Justice Kennedy argued that Bowers mischaracterized the dilemma as to whether gay individuals might participate in sodomy. The problem was more general, namely whether gay people without state intervention can make intimate personal choices.[20] The Court held that intimate consensual sexual activity was part of the liberty covered under the 14th Amendment by substantive due process.


IV. Comparison

On comparing the two jurisdictions, we observe that gay rights jurisprudence is in India's embryonic phase. In order to establish its own gay equality regime, India needs to take account of the seminal rulings of the USA and other jurisdictions. Gay rights are the latest front of human rights and the Indian Constitution, that needs to grant gays equal rights with a guarantee for inclusion.


The most common similarity between the jurisdictions is that sodomy laws were struck down or made illegal by the Judiciary of the respective countries and the Legislature washed their hands off the entire issue. The Indian Union Government did not take a position on the issue and left it to the "wisdom of the court" to decide on Section 377.


The Right to Privacy Judgements of Griswold v. Connecticut (1965) and Puttaswamy v. UOI (2017) of the respective jurisdictions played significant roles in helping the courts strike down the sodomy laws. The Indian Supreme Court's judgment is striking for its emphasis on the value of "inclusiveness" based on the privacy-based arguments in earlier sodomy law cases such as the U.S. Supreme Court's 2003 decision in Lawrence v. Texas.


The significant difference between both the jurisdictions is that while the Supreme Court of India, in its judgement, decided to include an inbuilt safeguard to ensure that it cannot be revoked again under the "Doctrine of Progressive Realisation of Rights".[21] In the U.S. the bench can overturn the Supreme Court's decision in Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).


India was the first country to include colonial sodomy law in its post-colonial Penal Code and became a model law for Asian countries, the Pacific, and Africa. The decision to decriminalize sodomy is expected to ripple through South Asia and well beyond. 2018's ruling demolishes the claim that LGBTQ people and rights are "alien." If India can step beyond its colonial history and view its LGQBT citizens with care and courtesy, why not other nations? Simultaneously, all the other countries of the world that have already decriminalized sodomy are watching India's next move towards accepting homosexuality. Will India finally allow homosexuals the right to choose their partner and marry, or do we have to wait for a few more decades before we can expect a change?

[1] Eskridge, William N. (2009). Gaylaw: Challenging the Apartheid of the Closet. Harvard University Press. p. 161. [2] Sathyanarayana Rao, T. S.; Jacob, K S (2014). "The reversal on Gay Rights in India". Indian Journal of Psychiatry. 56 (1): 1–2 ISSN 0019-5545 [3] "In a first, Gurgaon court recognizes lesbian marriage - Times of India".

The Times of India. Accessed December 6th, 2020. [4] 160 Delhi Law Times 277 [5] Sheela Bhatt (3 February 2006). "Gay Rights is matter of Public Interest: SC". Rediff News. Accessed December 6th, 2020. [6] Egan v. Canada, Supreme Court of Canada, 1995; Blue Diamond Society, Supreme Court of Nepal, 2008; Lawrence v. Texas, United States Supreme Court, 2003; Leung v. Secretary for Justice, High Court of the Hong Kong Special Administrative Region, Court of Appeal, 2006; McCkoskar and Nadan v. State, High Court of Fiji, 2005; National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998; Vriend v. Alberta, Supreme Court of Canada, 1998; Dudgeon v. United Kingdom, ECtHR, 1981; Dudgeon v. United Kingdom, ECtHR, 1981; Toonen v. Australia, United Nations Human Rights Committee, 1994 [7] Civil Appeal No.10972 of 2013 [8] "UN chief Ban Ki-moon calls for equality for lesbians, gays and bisexuals". The Times Of India. 12 December 2013. [9] (2017) 10 SCC 1 [10] W. P. (Crl.) No. 76 of 2016 [11] "Section 377 verdict: Here are the highlights". The Indian Express. 6 September 2018. Accessed December 6th, 2020. [12] Cato Institute. Amicus curiae brief in support of petitioners. Lawrence v Texas, 539 US 558, 9 (2003),11. http://object.cato.org/sites/cato.org/files/pubspdf/lawrencevtexas.pdf. Accessed December 6, 2020. [13] Hamowy R. Preventative medicine and the criminalization of sexual immorality in nineteenth century America. In: Barnett R, Hagel J, eds. Assessing the Criminal. Cambridge, MA. [14] Canaday, Margot (September 3, 2008). "We Colonials: Sodomy Laws in America". Accessed December 6, 2020. [15] 478 U.S. 186. 1985. [16] Bowers v Hardwick, 189-192 [17] 381 U.S. 479. 1964. [18] Ball CA. From the Closet to the Courtroom: Five LGBT Rights Lawsuits that Have Changed Our Nation. Boston: Beacon Press; 2010. Accessed December 6th, 2020. [19] 539 U.S. 558 (2003) [20] Carpenter D. Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans. New York: Norton; 2012. Accessed December 6th, 2020. [21] Rajagopal, Krishnadas (10 September 2018). "377 verdict has inbuilt firewall". The Hindu.

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