research paper 377

Social Acceptance and Section 377: A Case Study of Transgender People in Jammu City

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Page range: 137 - 156, doi: https://doi.org/10.2478/genst-2021-0008, keywords section 377 , transgender , jammu city , interpretative phenomenological approach , public sphere , public space, © 2020 parul priya et al., published by sciendo, this work is licensed under the creative commons attribution 4.0 international license..

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Unnatural intimacies and unnatural bodies: Section 377, homosexuality, and disability

• Published: 21 October 2021
• Volume 12 , pages 359–370, ( 2021 )

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• Aishwarya Chandran 1  

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Disability sex studies and queer disability theory have long noted how assumptions of able-bodiedness accompany the imperative to compulsory heteronormativity. Queer identity within such a heterosexist narrative is mediated and enabled through the non-identity of able-bodiedness, or the imagination of heteronormative desire as disembodied. Queer discourse in India has largely been mobilised around the establishment—and eventual withdrawal—of Section 377 of the Indian Penal Code 1860 (IPC), which proscribes ‘unnatural’ sex acts. However, the failure to adequately problematise the implicit ableist assumptions that animate the regulation of sexual intimacies invites us to think about the (dis)embodiment of disability within the legal, political, and queer discourse around Section 377, and urges us to try and disentangle from it possibilities to think about the ways in which the disabled body can be imagined within the politics and aesthetics of sexual citizenship. The discursive absence of epistemologies of disability in the legal and queer discourse around Section 377 is therefore constitutive of disabled bodies and disabled sexual practices through a disavowal of what these bodies can do. The eventual revocation of the law by the Supreme Court of India on the basis of arguments pertaining to privacy, sexual identity, and sexual autonomy as conscripted within the promise of adult franchise, points towards liberal humanist notions of universal personhood being rooted in ableist imaginations of corporeal sanctity. This article will try to offer a close reading of the Indian debates on queer sexuality around Section 377 to enable possible ways of locating disabled imaginations of the body in and through the ‘systems of exclusions’ that constitute the word of the law. By engaging with the discourse on Section 377 and how sexual non-normativity is embodied in legal discourse, this article hopes to be able to offer some insight into the poetics and politics of disability, embodied intimacy, and sexual citizenship.

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Indian Penal Code 1860 s 377.

Navtej Singh Johar & Ors v Union of India (2018) 10 SCC 1.

Suresh Kumar Koushal & Anr v Naz Foundation & Ors (2014) 1 SCC 1.

Ibid. [66].

Ibid. [60, 65].

Ibid. [64(5)], citing In Re the Special Courts Bill, 1978 (1979) 1 SCC 380 [72(5)].

Ibid. [64(6)], citing In Re the Special Courts Bill, 1978 (1979) 1 SCC 380 [72(6)].

Naz Foundation v Government of NCT of Delhi & Ors (2009) 111 DRJ 1 (DB).

Ibid. [48].

Navtej Singh Johar & Ors v Union of India (n 2).

See Margrit Shildrick, Dangerous Discourses of Disability, Subjectivity, and Sexuality (Palgrave Macmillan 2009); Tobin Siebers, ‘A Sexual Culture for Disabled People’ in Robert McRuer and Anna Mollow (eds), Sex and Disability (Duke University Press 2012) 37.

Jasbir K Puar, ‘Homonationalism as Assemblage: Viral Travels, Affective Sexualities’ (2013) 4(2) Jindal Global Law Review 23, 24.

Jasbir K Puar, The Right to Maim: Debility, Capacity, Disability (Duke University Press 2017) 38.

Chris Shilling, The Body and Social Theory (1st edn, SAGE 1993) 145.

David M Halperin, Saint Foucault: Towards a Gay Hagiography (Oxford University Press 1995) 66.

Judith Butler and Sunaura Taylor, ‘Examined Life’ ( Youtube , 6 October 2010). https://www.youtube.com/watch?v=k0HZaPkF6qE&t=739s . Accessed 22 September 2021.

Ibid. [00:55–01:30].

Ibid. [03:19–03:25].

Suresh Kumar Koushal & Anr v Naz Foundation & Ors (n 4) [59.5], citing Lohana Vasantlal Devchand & Ors v The State (1968) 9 GLR 1052.

Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability (New York University Press 2006). See also Riva Lehrer, ‘Golem Girl Gets Lucky’ in McRuer and Mollow (eds), Sex and Disability (n 16) 231.

Adrienne Rich, ‘Compulsory Heterosexuality and Lesbian Existence’ (1980) 5(4) Signs 631.

McRuer, Crip Theory (n 25) 6–10.

Rich, ‘Compulsory Heterosexuality and Lesbian Existence’ (n 26).

McRuer, Crip Theory (n 25).

Alok Gupta, ‘Section 377 and the Dignity of Indian Homosexuals’ (2006) 41(46) Economic & Political Weekly 4815.

Nilika Mehrotra, ‘Negotiating Gender and Disability in Rural Haryana’ (2006) 55(3) Sociological Bulletin 406.

Cindy Rhoades and Philip Browning, ‘Normalization of a Deviant Subculture: Implications of the Movement to Re-socialize Mildly Retarded People’ (1982) 7(1) Mid-American Review of Sociology 139, 143.

Zaid Al Baset, ‘Section 377 and the Myth of Heterosexuality’ (2012) 4(1) Jindal Global Law Review 89, 90.

Oishik Sircar, ‘New Queer Politics in the New India: Notes on Failure and Stuckness in a Negative Moment’ (2017) 11(1) Unbound: Harvard Journal of the Legal Left 1.

Naisargi N. Dave, Queer Activism in India: A Story in the Anthropology of Ethics (Duke University Press 2012).

Jyoti Puri, Sexual States : Governance and the Struggle over the Antisodomy Law in India (Duke University Press 2016).

Rosemarie Garland-Thomson, ‘Feminist Disability Studies’ (2005) 30(2) Signs 1557.

See Fiona Kumari Campbell, Contours of Ableism: The Production of Disability and Abledness (Palgrave Macmillan 2009); Lee Edelman, No Future; Queer Theory and the Death Drive (Duke University Press 2004).

Judith Butler, Bodies That Matter: On the Discursive Limits of ‘ Sex ’ (Routledge 1993) 37.

Navtej Singh Johar & Ors v Union of India (n 2) [425], citing Arvind Narrain and Alok Gupta, Law Like Love: Queer Perspectives on Law (Yoda Press 2011).

Ibid. [465].

Ibid. [466], citing David A J Richards, ‘Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution’ (1979) 30(4) Hastings Law Journal 957, 986.

See Scroll Staff, ‘Section 377 Hearing: Centre Says it does not Contest the Right to Choose a Partner’ ( Scroll , 11 July 2018). https://scroll.in/latest/886077/section-377-case-centre-says-it-does-not-contest-the-right-to-choose-a-partner.%20Accessed%2010%20September%202021 . Accessed 22 September 2021; ‘“We don’t Want 2 Gay Men Holding Hands Walking on Marine Drive to be Arrested,” Says SC on Section 377’ ( Times of India , 11 July 2018). https://timesofindia.indiatimes.com/india/article-377-an-example-of-social-disdain-declaring-it-invalid-will-help-lgbt-community-sc/articleshow/64949972.cms . Accessed 22 September 2021.

Julia Bahner, ‘Cripping Sex Education: Lessons Learned from a Programme Aimed at Young People with Mobility Impairments’ (2018) 18(6) Sex Education 640.

See Tom Shakespeare, Kath Gillespie-Sells, and Dominic Davies, The Sexual Politics of Disability: Untold Desires (Cassell 1996) 36–39.

Ninni Westgren and Richard Levi, ‘Sexuality After Injury: Interviews with Women After Traumatic Spinal Cord Injury’ (1999) 17(4) Sexuality and Disability 309.

Miriam Kaufman, Cory Silverberg, and Fran Odette, The Ultimate Guide to Sex and Disability: For All of Us Who Live with Disabilities, Chronic Pain & Illness (Cleis Press 2003) 114.

Siebers, ‘A Sexual Culture for Disabled People’ (n 16) 50.

Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (Oxford University Press 2013).

Ibid. 68–69.

Eve Kosofsky Sedgwick, Tendencies (Duke University Press 1993) 10–11.

Tom Shakespeare, ‘What Is a Disabled Person?’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability and Legal Change (Martinus Nijhoff Publishers 1999) 28.

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Chandran, A. Unnatural intimacies and unnatural bodies: Section 377, homosexuality, and disability. Jindal Global Law Review 12 , 359–370 (2021). https://doi.org/10.1007/s41020-021-00150-9

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Decriminalization of Section 377: A Turning Point in Indian LGBTQ+ Rights

• Post author: Manik Tindwani
• Post published: 9 October 2023
• Post category: Uncategorised
• Reading time: 9 mins read

The Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India[1] decriminalizing consensual homosexual acts under Section 377 of the Indian Penal Code (IPC) in September 2018 marked a historic turning point in the struggle for LGBTQ rights in India. Section 377, imposed during British colonial rule in 1861, criminalized “carnal intercourse against the order of nature” and was used to persecute LGBTQ individuals for over 150 years.[2] The lengthy legal battle to strike down this archaic and discriminatory law involved tremendous courage, perseverance and mobilization by LGBTQ activists and allies. However, while the decriminalization of homosexuality was a hard-won victory, it is only the first step on the long road towards full equality and inclusion of queer and transgender persons in society. Much work remains to be done.

Section 377 and Early Legal Challenges

Section 377 of the IPC, based on Victorian-era morality, criminalized non-procreative sexual acts as being “against the order of nature”, including same-sex relations. The law did not explicitly mention homosexuality, but was used by police and courts to harass, intimidate and prosecute LGBTQ persons.[3] Historically, the law was seldom applied in cases of consensual sex, but served more as a tool for blackmail, abuse and social control.

The campaign to repeal Section 377 began in the early 1990s, led by groups like the AIDS Bhedbhav Virodhi Andolan which argued that the law posed a hurdle in HIV/AIDS prevention efforts.[4] Their petition filed in Delhi High Court in 1994 was dismissed on technical grounds. In 2001, the Naz Foundation (India) Trust filed a Public Interest Litigation in the Delhi High Court challenging the constitutionality of Section 377.[5] This case too was dismissed in 2004 as the Court held that the petitioners lacked standing. However, in 2006, the Supreme Court overturned the dismissal and sent the case back to the Delhi High Court for a decision on merits.[6]

This opened the doors for a renewed legal challenge to Section 377. Numerous LGBTQ rights groups and activists intervened in support of the Naz Foundation’s petition, including Voices Against 377, a coalition of 12 organizations.[7] After extensive hearings, the Delhi High Court finally delivered a historic judgment in July 2009 decriminalizing consensual homosexual acts between adults, holding that Section 377 violated constitutional rights to equality, non-discrimination, life and personal liberty, privacy and dignity.[8] The Court read down the section to exclude adult consensual sex from its purview.

However, this progressive judgment was overturned by the Supreme Court in December 2013 in Suresh Kumar Koushal v. Naz Foundation.[9] The Supreme Court held that amending Section 377 was a matter for Parliament, not the judiciary. This decision was met with outrage and protests from LGBTQ groups across India.[10] It spurred fresh litigation challenging the constitutionality of the law on the grounds of privacy, dignity and sexual orientation being integral to one’s personality and identity.

The Road to Decriminalization

The Koushal judgment proved to be only a temporary setback. It galvanized LGBTQ activists and civil society to campaign relentlessly for the repeal of Section 377.[11] Public support for queer rights also steadily grew, especially among young people. LGBTQ persons and communities were becoming more visible in mainstream culture and media. In 2017, the privacy judgment in Justice K.S. Puttaswamy v. Union of India[12] upholding privacy as a fundamental right laid the constitutional basis for a renewed challenge to Section 377 on grounds of privacy and personal liberty.

In January 2018, a three-judge bench of the Supreme Court agreed to reconsider the Koushal judgment and referred the matter to a larger Constitutional bench.[13] Petitions were filed by an array of human rights groups, mental health professionals and prominent LGBTQ persons arguing that Section 377 violated fundamental rights. After marathon hearings where rival groups made impassioned arguments for and against the law, the Constitution bench unanimously struck down Section 377 as unconstitutional in September 2018.[14]

The Court held that Section 377 insofar as it criminalized consensual adult homosexual relations was arbitrary, indefensible and manifestly unconstitutional. It violated the rights to equality, privacy, dignity, autonomy, intimacy and sexual expression. The judgment marked a new era of hope and affirmation for LGBTQ persons in India who could finally come out of the shadows and live without fear or guilt. The Court acknowledged that homosexuality was a natural variant of human sexuality and that “criminalizing carnal intercourse under Section 377 Indian Penal Code is irrational, indefensible and manifestly arbitrary”.[15]

Ongoing Struggle for Full Equality

While the reading down of Section 377 was a huge victory for LGBTQ rights, it does not automatically ensure full equality before law and equal citizenship for queer and transgender persons. There is a long way to go in the battle against societal prejudice. LGBTQ persons continue to face stigma, discrimination and violence in their daily lives, including in accessing housing, healthcare, jobs and education.[16] There are no legal protections against discrimination based on sexual orientation or gender identity in employment, services or housing.

The Transgender Persons (Protection of Rights) Bill passed in 2019 was criticized by LGBTQ activists as inadequate and flawed.[17] The Bill fails to provide full legal recognition of gender identity and has procedural barriers for changing official documents. Same-sex marriage or civil unions are still not legally recognized. LGBTQ persons have no legal recourse against hate crimes. Police often fail to take action against harassment and violence targeting queer people. The law on sexual assault is still gender-specific and does not cover abuse against transgender persons.

Realizing the constitutional promise of equality and non-discrimination for LGBTQ persons requires further legal reform. Some steps in this direction would be enacting a comprehensive anti-discrimination law, amending the definition of sexual assault to be gender-neutral, allowing self-declaration of gender identity, providing marriage equality and parenting rights, and prohibiting conversion practices.[18] However, legal reform alone is insufficient to change social mindsets or end discrimination. The LGBTQ rights movement needs to expand beyond its middle-class urban roots and encompass issues of class, caste, religion and disability.

The Supreme Court judgment decriminalizing Section 377 marked the culmination of a long struggle by LGBTQ persons and activists. It represents a major milestone in the legal empowerment of queer and transgender groups. However, it is only the beginning of a still unfinished battle for social acceptance, equal rights and justice. The legal change is valuable in creating a more enabling environment free of harassment. But the work of changing social prejudices and ensuring non-discrimination is likely to be harder and will require sustained public education and advocacy. The LGBTQ movement needs to continue growing and building alliances to exert pressure on governments to enact progressive legal reforms. The principle of equal citizenship regardless of sexual orientation or gender identity needs to be fulfilled not just in law but also in practice. The decriminalization of Section 377 has opened the doors to this possibility by affirming the constitutional morality of inclusion, dignity and acceptance for all.

References:

[1] Navtej Singh Johar v Union of India, (2018) 10 SCC 1.

[2] Indian Penal Code, 1860, Section 377.

[3] Alternative Law Forum, Section 377 of the Indian Penal Code: Explained, https://altlawforum.org/publications/section-377-of-the-indian-penal-code-explained/

[4] People’s Union for Civil Liberties v. Union of India, (2001) 5 SCC 294.

[5] Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277 (2009).

[6] Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.

[7] Voices Against 377, About Us, http://www.voicesagainst377.org/about-us/

[8] Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001, Delhi High Court.

[9] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No.10972 of 2013.

[10] The Wire, “LGBTQ Activists Protest Against SC Verdict Recriminalising Homosexuality”, 11 December 2018.

[11] Orinam, Timeline of Section 377 Litigation, http://orinam.net/377/timeline-of-section-377-litigation/

[12] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[13] Navtej Singh Johar v. Union of India, WP (Crl) 76 of 2016.

[14] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

[15] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, para 246.

[16] Human Rights Watch, “India: Transgender Bill Raises Rights Concerns”, August 2019, https://www.hrw.org/news/2019/08/08/india-transgender-bill-raises-rights-concerns

[17] Amnesty International, “India: New Transgender Bill Will Harm Rights”, August 2019, https://www.amnesty.org/en/latest/news/2019/08/india-new-transgender-bill-will-harm-rights/

[18] The Wire, “LGBTQ Indians Face Many Barriers to Accessing Healthcare”, June 2018, https://thewire.in/health/lgbtq-indians-face-many-barriers-to-accessing-healthcare

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Decriminalization of Section 377 IPC: Securing Right and Social Inclusion of LGBTQ+

By: Nitya, ICFAI Law School, Dehradun

Introduction

Granting ‘Marriage rights’ to the LGBTQ+ community has been a widely debated topic and has evoked a lot of religious antagonisms, because of the prejudiced and orthodox notion of the Indian society, that claims ‘Homosexual Relationships’ to be ‘Immoral and against their respective Cultures and Religions’. 1

Such ideology has clearly emanated from the ‘Christian Belief System’, brought by the Britishers during the colonial rule and has passed through generations because history has enough evidence and explicit tales to tell about the presence of homosexual relationships during the medieval and colonial times. 2

Though Section-377 of the Indian Penal Code has been decriminalized, the LGBTQ+ community still struggle for some major ‘Civil Rights’ which they are deprived of, the prominent among which is that of ‘Marriage’, which is a path towards various other rights and can lead to their social and legal recognition’.

However, it has been found, that the contemporary Personal Laws in India including the Special Marriage Act, are ‘Hetero’ centric and do not allow ‘Homosexual’ marriage, which is clear discrimination against the aforesaid community, and a violation of Article-15 of the constitution.

This research work aims to highlight the importance of granting ‘Marriage Rights’ to the LGBTQ+ Community, and further points out the best way of granting such rights. The research also suggests that adopting a ‘Civil Partnership’ model is not a fair alternative.

The paper also finds out that, bringing amendments in the Special Marriage Act, 1954 to grant marriage rights to the aforesaid community is much more of a practical approach, rather than doing it by bringing amendments in various Personal Laws operating in India. 

Marriage Rights to LGBTQ+ Community-: A key to their Social Inclusion:

It has been years since the LGBTQ+ community has been fighting for their marriage rights. Well, the struggle is not merely for the legal recognition of their marriage but is also for making themselves entitled to various other rights that marriage comes along with, that are not available to the ‘Homosexual’ couples, as they lack the very marriage right.

The Homosexual couples just desire for inclusion and acceptance without discrimination and an option to have a legally recognized partnership. Well, there are some concrete and captivating, practical reasons to grant them the right to have a legally recognized marriage. 3

Besides, marriage being their fundamental right, a legally recognized marriage could also help, pave a path for some other legal rights and various health, social and economic benefits, that can benefit same-sex couples leading to their social and legal recognition. So, what are those legal rights and benefits?

• Presently, there are certain legal rights such as; maintenance, succession, pension, etc. that are enjoyed only by couples, who have a legally recognized marriage, and not by LGBTQ+ people, as do not have a legally recognized marriage.
• Also, there are certainly economic benefits under laws like; the Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923, etc. which the people, only related either by blood or marriage enjoy. 4 Hence, he LGBTQ+ people are deprived of these benefits as well.
• On the top of it, after the guidelines for adoption have been issued by the Central Adoption Resource Authority , single and unmarried couples have really found it difficult to adopt, and since, LGBTQ+ marriage is not recognized, hence they find it difficult to adopt as well. 5
•   Furthermore, there have been instances, where LGBTQ+ people have been suspended from their jobs, after their marriage, on the grounds that their marriage is neither recognized legally nor socially accepted. 6

Thus, keeping in mind the above arguments, it could be said that marriage rights can pave a path for both legal and social recognition, further ensuring social security to LGBTQ+ people. However, according to some research scholars, one alternative to grant such legal and social recognition to the LGBTQ+ people, is not through ‘Marriage Rights’ but through ‘Civil Unions’, as done by many European and other countries such as; United States of America, Australia, New Zealand etc. 7

But this is not a fair alternative, to move forward with.

Why adopting the ‘Civil Partnership’ model for the LGBTQ+ community is not a fair alternative?

“Marriage is not merely a contractual relationship that is forged for the partners to gain legal benefits and rights from one another. It has the equally important function of giving both legal and social recognition to a relationship”. 8

There is absolutely no doubt that the ‘Civil Partnership’ model has advantages if implemented, especially in a country like India, where the society is slightly orthodox and prejudiced with respect to the LGBTQ+ community and their partnerships because it is likely to invoke less opposition on religious grounds and at the same time avoids the acrimonious debate as to whether ‘marriage’ is necessarily ‘heterosexual’.

However, such a model has some detriments as well. So, what exactly are its disadvantages as an alternative to marriage rights?

• Firstly, the civil partnerships merely provide the community with an option that has a lower status than marriage, which itself is discriminatory in nature. 9
• Secondly, marriage as an institution has a certain cultural, historical, and social significance that civil-partnerships does not have. Hence, the two institutions do not fall on the same footing. 10
• Thirdly; if a civil-partnership model is adopted in India, it would not only require new legislation, governing civil unions, but also an amendment in various relevant legislation, such as the Indian Succession Act, 1925, Guardian and Wards Act, 1890, Workmen’s Compensation Act, 1923, and a host of other legislation relating to adoption, pensions, etc.
• And above all, the ‘Civil Union’ model shall never provide the same social status to LGBTQ+ people, that marriage provides to ‘Heterosexual’ couples at present. 11

Thus, seeking legislation to recognize Civil-Unions for the LGBTQ+ community is not a fair alternative. However, there is one other way for doing so, i.e. through the Personal Laws operating in India, which governs various religious communities. But, does the contemporary personal laws recognize homosexual marriages? 

Homosexual Marriage under the Personal Laws:

Indian personal laws v. lgbtq+ ‘marriage rights’:.

“To deny people their Human Rights is to challenge their very Humanity”.

-Nelson Mandela

While the LGBTQ+ community struggle hard for their civil rights, especially that of marriage, au contraire , this is also conspicuous that in India’s present societal array, marriage is referred to as a heterosexual institution associated with procreation.

However, the landmark judgments in the case of Naz Foundation v. Government of NCT of Delhi ( 12) and Navtej Singh Jauhar v. Union of India ( 13) , are a major step towards changing the perception of same-sex unions in India, by recognizing the third gender category as well, hence making them entitled to all the human and fundamental rights. In spite of everything, the demand for legalizing homosexual marriages is giving birth to new friction in the institution of marriage, family, and law, which cannot be denied. 14

Various religious communities present in India, are governed by their own Personal Laws, for the purpose of marriage, which envisage marriage between a ‘Man’ and a ‘Women’. However, none of these personal laws have explicitly defined ‘marriage’, as a ‘Heterosexual union’. 15

So, what exactly manifests the heterosexual nature of these Personal Laws?

• The Hindu Marriage Act, 1955 for example, represents Hindus, Sikhs, Jains, and Buddhists, and expresses that a marriage might be solemnized between any two Hindus. Further specifying in section-5(iii) , “conditions for a Hindu Marriage” stating, that the ‘Bride’ and the ‘Bridegroom’ must have attained ‘Eighteen’ and ‘Twenty-one’ years of age respectively, for the purpose of marriage. 16 Here, the words ‘Bride’ and ‘Bridegroom’ obviously mean a ‘Heterosexual’ marriage.
• Similarly, section-60 of the Christian Marriage Act, 1872 , provides that the age of ‘Man’ and ‘Women’ should be ‘Twenty-one’ and ‘Eighteen’ respectively, for the purpose of marriage. 17 Hence, proving itself to be ‘Heterosexual’ in nature.
• In the case of Muslims as well, marriages are considered to be a ‘Heterosexual Union’. Since they are not governed by any statue so they do not have a specific definition of marriage. But marriages among them are regularly thought to be an agreement, with the end goal of ‘procreation’, which highlights its heterosexual nature.

Thus, it could be conceived that all the Indian Personal Laws visualize marriage as a hetero partnership by using words like, ‘Bride and Groom’, ‘Husband and Wife’ etc, which clearly proves their ‘Heterosexual’ nature.

Having addressed different provisions of various Personal Laws above, it seems difficult to grant marriage rights to the LGBTQ+ communities under these laws, as they do not recognize ‘Homosexual Marriage’. However, according to some research scholars, one of the ways of doing so, is by bringing amendments in these personal laws. But it does not appear to be much of a practical approach.

Why bringing amendment in Personal Laws is not a practical approach?

“I’m equal towards all living beings, no one is hated by me and no one is beloved. Those who worship me with devotion, however, are in me, and I’m in them”.

-Bhagavad Gita 9.29

As found from various ancient and medieval researches and evidence, India really had a liberal, generally latitudinarian, humanistic, and diverse, range of attitudes towards all sexes, including ‘Homosexuality’, with some clear warnings about attachment, addiction, and obsession. 18

Moreover, no Indian religion has ever explicitly censured homosexual unions and marriage. Furthermore, there are landmark verdicts by the Indian courts, which decriminalize Section-377 of the Indian Penal Code, and declares discrimination on the basis of sexual orientation as a violation of Article-15 of the Indian Constitution. 19

But even yet, the Indian society continues to have a conservative view about homosexuality, which has emanated from the British ideologies that, “gay marriages and relationships are not compatible with nature and are not natural”. 20

As a result of which, Indian society continues to consider it ‘immoral’ and ‘against their respective religions’. Also, they are not able to accept things, because of their prejudiced belief, that traditionally, Indian society didn’t recognize such relations.

Now, because of such an orthodox attitude of people, it is quite impractical and unfeasible to seek amendments in personal laws to grant recognition and marriage rights to the LBGTQ+ community, as it would lead to strong confrontation, leading to mass opposition and protests by various religious groups.

Also, an amendment might lead to ambiguity in various personal laws. Moreover, the Sharia law does not recognize homosexual marriages, therefore Muslims cannot perform ‘Homosexual Marriages’ if they go with their personal laws, and bringing an amendment in Muslim Personal Laws is again a challenging task as it is considered to be a direct revelation from Allah. 21

Furthermore, people might consider an amendment in their personal laws as an attack on religious sentiments. Hence an amendment in the personal laws for granting rights to the LGBTQ+ people does not appear to be a practical approach. 

Nevertheless, taking into consideration the above arguments, the most feasible alternative, that could probably happen to be the most effective one for the purpose of granting marriage rights to the LGBTQ+ people, is an amendment to the Special Marriage Act, 1954 . 22

Amendment in Special Marriage Act-: The most feasible way to grant marriage rights to LGBTQ+ people:

“Legislation and Adjudication must follow and conform to, the progress of society”.

-Abraham Lincoln.

As already pointed out and discussed above, bringing amendments in the personal laws regarding LGBTQ+ marriage, prima facie can lead to mass opposition by various religious communities and could hurt the religious sentiments of a lot of people, because of the prejudiced notion of society regarding the LGBTQ+ community.

Hence, the only feasible way to grant marriage rights to the aforesaid community is by bringing an amendment in the Special Marriage Act, 1954, that ought not to invoke any religious antagonism, as it does not bind people to any sought of religious restrictions, and could be used by people who do not want themselves to be bound by their personal laws.

Also, the marriage is registered by a marriage registrar, unlike the personal laws that talk about religious ceremonies for the purpose of marriage, hence, leading to an easy execution of civil marriage. 23

However, in spite of the secular character of the said Act, which even permits inter-religious marriage, it still appears to be ‘Hetero’ oriented, hence discriminating against ‘Homosexual’ people. 24

This could be proved by reading down the provision under Section-4(c) of the said Act, which says that, “the ‘male’ and ‘female’ must have attained the age of ‘twenty-one’ and ‘eighteen’ years respectively, for the purpose of marriage”. 25

Herein, the terms ‘Male’ and ‘Female’, clearly depicts that the Act is ‘Heterosexual’ in nature and does not recognize ‘Homosexual’ marriage. How to eradicate this discrimination against ‘Homosexuals’ then?

Acclimatizing same-sex marriage within the framework of the Special Marriage Act, 1954 , is however not difficult. All that it requires is an amendment in Section-4(c)  so that the provision reads as;

•   “the parties if ‘males’ and if ‘females’ must have attained the age of ‘twenty-one’ and ‘eighteen’ years respectively, for the purpose of marriage”, and to incorporate a provision that ‘Same-sex marriages are permitted’;
• also, the term ‘Sodomy’ as mentioned under Section 27(1-A) , should be described in a much clearer manner, as it has been decriminalized by the court. 
• the terms ‘Husband’ and ‘Wife’ should also be interpreted with respect to the LGBTQ+ people, in the Special Marriage Act, 1954.

The Special Marriage Act, 1954, thus, needs to manifest its compliance to Article-15 of the Indian Constitution, by permitting same-sex marriages on the grounds that it would otherwise be discriminatory against same-sex couples, hence violating Article-15 .

Conclusion and Suggestions:

“Legislation should be the voice of a reason”.

-Pythagoras of Samos.

The above discussions have made the importance of granting ‘Marriage Rights’ to the LGBTQ+ community clear, along with some suggestions as to rectifications required in the contemporary Indian laws for the purpose of granting such rights to them.

The challenge however is that granting marriage rights and giving social and legal recognition to the aforesaid community is not easy in a traditional society like India as it has been in western. But keeping that aside, it is high time that the Legislature comes up with a concrete solution regarding the same, maybe by the way of bringing amendments in the Special Marriage Act, 1954, as suggested.

There are several international precedents in support of the proposition that ‘a marriage law that did not permit same-sex couples to marry, was unconstitutional’. 26

The same proposition should be followed in India to amend the Special Marriage Act, 1954 on the grounds that, if secular legislation like the Special Marriage Act, permitted marriage only between couples of the opposite sex, it would be discriminating against the same-sex couples on the basis of sexual orientation, and such discrimination would be in violation of Article-15 of the Constitution, hence, unconstitutional. 27

Also, similar provisions regarding ‘Marriage rights’, must also be included in the recently proposed, ‘Transgender Persons Rights Bill’ , to grant marriage rights to the transgender community. I also suggest the formation of, ‘National Commission for LGBTQ+ community’, that works for the interest, welfare, and growth of the community. This might provide better social inclusion and legal recognition to the LGBTQ+ community.

“There is nothing wrong with you. There’s a lot wrong with the world you live in”

– Chris Colfer

• Vikas Pandey, Why legalizing gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM), https://www.bbc.com/news/world-asia-india-46620242.
• Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint (Sept. 11, 2018, 10:22 PM.), 
• Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 99-100 (2014)
• The Employees Provident Funds And Miscellaneous Provisions Act, 1952, No.19, The Workmen’s Compensation Act, 1923, No. 8.
• “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer relationships in India , ORINAM 1, 4-5 (2011).
• Ruth Vanita, Same-Sex Weddings, Hindu Traditions and Modern India , 91 F.R. 47, 52-53 (2020).
• Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 100-101 (2014).
• Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 101-102 (2014).
• Nicola Barker, Not the Marrying Kind – A Feminist Critique of Same-Sex Marriage, PMSLS 1, 48-49 (2012).
• 1 JEFFREY A. REDDING, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim Brooks” eds., Routledge, 2010).
• Naz Foundation v. Government of NCT of Delhi 2009 D.L.T 27 (India).
• Navtej Singh Johar v Union of India, A.I.R 2018 S.C. 4321 (India).
• Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
• Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM), https://www.firstpost.com/india/section-377-verdict-gay-marriage-inheritance-adoption-legislation-unlikely-majoritarian-view-will-keep-state-sc-away-5134701.html.
• The Hindu Marriage Act, 1955, No. 25.
• The Indian Christian Marriage Act, 1872, No. 15.
• Manoj Mittal, Ancient India didn’t think homosexuality was against nature, The Times of India,(Jun.27,2009,00:18AM), https://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-against-nature/articleshow/4708206.cms.
• Vikas Pandey, Why legalising gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM), https://www.bbc.com/news/world-asia-india-46620242.
• Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM).
• Special Marriage Act, 1954 (Act No 43 of 1954).
• R.Venkadesh kumar, A Study on the Legal Recognition of the Same-Sex Marriage , 120(5) I.J.P.A.M. 2946, 2949-2950 (2018).
• Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 106-107 (2014).

Bibliography:

Acts/Statutes and Bills:

• The Transgender Persons (Protection of Rights) Bill, 2016  
• The Transgender Persons (Protection of Rights) Bill, 2018  
• Special Marriage Act, 1954 (Act No 43 of 1954)
• The Employees Provident Funds And Miscellaneous Provisions Act, 1952, No.19
• The Workmen’s Compensation Act, 1923, No. 8.
• 1 Jeffrey A. Redding, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim Brooks” eds., Routledge, 2010).

Journal Articles/ Research Papers:

• Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, (2014)
• “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer relationships in India , ORINAM 1, (2011).
• Gregory M. Herek, Legal recognition of same-sex relationships in the United States: a social science perspective , 6 A.P. 618, (2006).
•   Ruth Vanita, Same-Sex Weddings, Hindu Traditions and Modern India , 91 F.R. 47, (2020).
• Bhakti Parekh, Transgenders and their Right to Marriage, 17 S.M. 1, 7-8 (2020).
•   Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint (Sept. 11, 2018, 10:22 PM.), https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377.
• Shamayita Chakraborty, Despite Social Marriage, Gay Couples Still Yearn for Legal Rights, Entertainment Times, The Times of India (Jun. 25, 2019, 14:38 PM), https://timesofindia.indiatimes.com/life-style/spotlight/is-gay-marriage-a-reality-in-india/articleshow/69928813.cms.
• Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM), https://www.firstpost.com/india/section-377-verdict-gay-marriage-inheritance-adoption-legislation-unlikely-majoritarian-view-will-keep-state-sc-away-5134701.html .
• Manoj Mittal, Ancient India didn’t think homosexuality was against nature, The Times of India, (Jun. 27, 2009, 00:18 AM) https://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-against-nature/articleshow/4708206.cms.
• Navtej Singh Johar v Union of India, (2018) S.C. 1350 (India).
• Goodridge v. Deptt. of Public Health, 798, N.E., 941 (Mass 2003). 
• Minister of Home Affairs v. Fourie, 1 SA 524 (CC), (2006).
• Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
• Obergefell v. Hodges
• National Legal Services Authority v Union of India, (2014) 5 SCC 438

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Indian Legal Solution Journal of Criminal and Constitutional Law

RECENT AMENDMENTS IN SECTION-377 OF INDIAN PENAL CODE, 1860  

Author : Nitesh Mahech

Volume 1 Issue 1

ISSN : 2581-8465

ABSTRACT  

The struggle against section 377 of the Indian Penal Code, 1860 is one of the historical significance in India. The 150-year-old law, which could impose as harsh a penalty as life imprisonment for violations, had been challenged by public interest litigation for a decade. The acceptance of the homosexual community and the development of laws regarding homosexuality has been a slow one and has started nearly two decades earlier. This research paper is concerned with the verdict of section 377 that has opened a window for the community to seek dignity in every sphere of life and the said dignity will lead to equality.

This research paper deals with the recent amendments of section-377 [1] and the critical analysis of the landmark verdict of Navtej Singh Johar & Ors. v. Union of India as well as its comparison with the earlier judgments of Suresh Kumar Kaushal v. Naz Foundation and Naz Foundation v. Govt. Of NCT of Delhi along with various concerned reports and some other relevant case laws with respect to the LGBT Community. This paper includes the development of the social opinion regarding the homosexual community and their societal status. Following this, the paper concludes the impact of the verdict of section 377 of IPC with respect to LGBT Community in India.

INTRODUCTION  

What is ‘Homosexuality’?

Homosexuality is a sexual orientation in which the person has the sexual attraction towards the same sex and those persons are commonly addressed as ‘gay’ or ‘lesbians’ in India. Further, LGBT community (lesbian, gay, bisexual and transgender community) is a broader term which includes persons with diverse sexual preferences and was used to substitute gay in reference to the LGBT community beginning in the mid-to-late 1980’s [2] .

The harassment and discrimination of the lesbian, gay, bisexual and transgender community in India resulting from the continued existence of Section 377 [3] that has affected the rights of that community which are expressly guaranteed and are an epitome of the vision of the great leaders who wished to create a country adorned with a society which valued the virtues of equity, fairness and non-discrimination. That we continue to follow a provision which dates back to the 19th century in the 21st century wherein the rights of citizens have reached a zenith unparalleled before, it seems highly absurd to continue with a provision which contradicts everything which the constitution stands for.

Rights guaranteed under the Constitution, including but not confined to the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health, all of which are essential for the survival and well being of humans. As has been expressly held by the nine-judge constitutional bench of the Hon’ble Supreme Court in the  KS Puttaswamy [4] judgment that Article-21 is inclusive of and protects the right to privacy under the right to life and liberty guaranteed by the same [5] .

As has been reiterated and reported by various reports including the Ministry of Health and Family Welfare (in conjunction with the National Aids Control Organization) which has presented evidence and averred time and again that the continued existence of Section-377 is counter-productive to the efforts of HIV/AIDS prevention and treatment. It renders a large number of people susceptible to high-risk categories in relation to HIV/AIDS, who reluctant to come forward for treatment due to a fear of law enforcement agencies, and that in driving homosexuality underground it increases risky behaviour such as unprotected sex.

History of the Legislation

The primary issue with the penal provision of section-377 is that it criminalizes sex other than penile-vaginal. It was prescribed at common law in England in the Fleta, 1290 and later in the Britton, 1300 that sodomites should be burnt alive. It was later on penalized under the Buggery Act of 1533 which was again re-enacted by Queen Elizabeth I in 1563 under which it became the charter for subsequent criminalization of sodomy in the British Colonies but in 1817, oral-genital sexual acts were removed from the definition of buggery act. And in 1861, death penalty was formally abolished in England and Wales.

Nonetheless, sodomy or buggery remained as a crime under Indian Penal Code under section 377 which reads as follows:

“377. Unnatural Offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine [6] .

Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

This particular section provides for the acts which come under “unnatural offences”  although the same text is not used in the section but used the expression “ carnal intercourse” which somehow different from the expression “sexual intercourse” used in the offences like rape. Subsequently, under Sexual Offences Act, 1967 [7] , English Law was reformed which decriminalized the act of sodomy above the age of 21 between consenting adults pursuant to the report of Wolfenden Committee which advising the Parliament to repeal laws penalizing homosexuality in 1957.

The ideology behind section-377 is settled by means of traditional, moral and ethical standards which confines the significance of sexual intercourse is for the purpose of procreation only which means non-procreation sexual activity is “against the order of nature” but it has no existence in our modern society. As criminalizing consensual same-sex conduct

taking place in private would serve as a weapon for police abuse, detaining and questioning, forced sex, harassment, extortion, the demand of hush money and significantly the discriminatory beliefs towards homosexuality. Therefore, the provisions of section-377 form a distinct category of vulnerable people in our society who are constantly affected and victimized.

Violation of Articles 14, 15 and 19 of the Constitution of India  

The legislative objective under the provisions of section-377 has no rational nexus between the sexual conduct for both procreation and non-procreation purpose thus violative of Article-14 [8] since it is based upon the stereotypes which have no place in modern society which renders arbitrariness and unreasonableness. The mandate of Article 14 is that like should be treated alike and that unlike should be treated differently. As a matter of fact, all persons are not alike or equal in all respects. Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality. What section 377 does is that it creates a virtual barrier of sorts between people who have heterogeneous sexual proclivity against those people having a different idea as to their sexual orientation.

As Bhagwati J stated that the equality and non-arbitrariness in Article-14 require the principle of reasonableness and the procedure contemplated by Article-21 must answer the test of reasonableness for conformity with Article-14. It must not be arbitrary and must be right, just and fair, otherwise, it would satisfy the requirement of Artice-21.

Moreover, the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “sexual orientation”. The criminalisation of homosexual activity by Section 377 discriminates on the grounds of sexual orientation and is therefore contrary to the Constitutional guarantee of non-discrimination under Article 15. Also, Article-15 provides the term “sex” which is not confined to “gender” only but also includes “sexual orientation” and therefore, it is implied in the said fundamental rights against discrimination that equality must be based on sexual orientation.

Hence, penalizing the homosexual conduct by means of section-377 is discriminatory on the grounds of sexual orientation and thus, violative of Article 15 also. The provision is inconsistent with the basic freedom guaranteed under Article 19 (1) (a) (b) (c) & (d), in that, the ability of an individual to make a personal statement about one’s sexual preferences, association and free to move so as to engage in homosexual conduct is restricted.

Violation of Article 21 of the Constitution  

Article 21 of the constitution states that no person shall be deprived of his life and liberty except according to “procedure established by law”. There has been an extensive judicial discussion on the meaning of ‘life’ in various legal precedents. The expression “life” does not only limited to the physical act of breathing but also includes the right to live with human dignity, right to livelihood, right to health, right to pollution-free air, etc. The right to life is the fundamental one without which no person can live as a human being since it is the only article which has the widest possible interpretation and covers every standard for worth living. The rights like shelter, nourishment and growth are covered under the canopy of Article 21 and therefore, the basic necessities and requirements are equally crucial for every person.

In the landmark case of Kharak Singh v. State of Uttar Pradesh1 [9] , in which the Supreme Court quoted and held that:

“By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

Moreover, in Sunil Batra v. Delhi Administration [10] , the Supreme Court reiterated with the approval the above observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives

meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.

Until the decision of the Supreme Court in Maneka Gandhi v. Union of India [11] , a rather narrow and constricted meaning was given to the guarantee embodied in Article 21. But in Maneka Gandhi, a seven-Judge Bench decision, P.N Bhagwati, J. (as his Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19. Any law interfering with the personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. Since none of the above is complied with, hence there is no doubt as for the fact that Section 377 of the Indian Penal Code is violative of the fundamental rights prescribed under the part-III of the constitution.

Article 21:- Right to Privacy and Dignity  

It has been reiterated by various decisions that the right to privacy and the right to dignity are inherent aspects of the right to life envisaged under Article 21. It is humbly contended that the provision in question is an affront to both these aspects which are an inherent part of article 21.

Right to Privacy  

Under the interpretation of right to life and human dignity, right to privacy is the implied which is an essential requisite for every citizen for having an intimate personal sphere concerning the claim of dignity on consensual sexual relations in private. Further, one’s sexual relations and preferences are the most crucial under privacy since it falls within an individual’s personality and at the core of “private space”. Also, the basic fundamental right to life has a damaging impact on homosexual community as it not only perpetuates social stigma but jeopardizing HIV/AIDS prevention efforts and therefore, rendering gay men increasingly vulnerable to contracting HIV/AIDS

Dignity  

An important element of living a worthwhile life is the omnipresence of dignity without which the rights guaranteed by Article 21 falls flat on its face. Various precedents have dealt with the concept of dignity and held that the same is essential and has a variety of facets.

In Shabnam v. Union of India [12] , it stated in the following terms:

“This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being ‘as a human being’. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person’s life, physical or mental welfare is alarmed. It is in this sense of torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being”

In M Nagaraj v. Union of India [13] , it was held that dignity to be intrinsic and inseparable from human existence. Dignity, the Court held, is not something which is conferred and which can be taken away because it is inalienable:

“The rights, liberties and freedoms of the individual are not only to be protected against the State, but they should also be facilitated by it… It is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It simply is. Every human being has  dignity by virtue of his existence…”

By denying the LGBTQ community an important aspect of their reality and existence perpetuated by a penalizing provision is a direct attack at their dignity which not only results in the community ostracizing such individuals and prosecuting them simply for their choices, denying the liberty to make choices just because a section of our society isn’t ready to accept a new paradigm change in relationships. Needless to say that the same is a scathing attack on the quality of life enjoyed by such individuals. Moreover, when a three-judge bench of this Hon’ble court decided to look into the constitutionality of section 377 despite the Suresh Kaushal [14] judgment is itself descriptive of the fact that there is indeed an issue which needs  to be adjudicated at the earliest as the stakes involve the very veracity of the constitutional provisions inserted by our founding fathers with the premise that the same would serve as a protection against the excesses of the state and enable citizens to live their lives a manner they deem fit.

THE 2018 JUDGEMENT OF NAVTEJ SINGH JOHAR CASE  

Introduction

Navtej Singh Johar case is pathbreaking in its approach as it sets significant standards in jurisprudence, clarifies certain provisions and strengthens some of the pillars of our democracy.

On 6th September 2018, a five-judge bench i.e. Hon’ble Chief Justice Dipak Misra, Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Dr. Justice D.Y. Chandrachud, Hon’ble Mr. Justice R.

F. Nariman and Hon’ble Mr. Justice Indu Malhotra of the Supreme Court pronounced judgment over the issue i.e. ‘constitutional validity of section 377’ in Navtej Singh Johar & Ors. v. Union of India [15] . The Hon’ble Apex Court held that penalising consensual homosexual activities is against the fundamental rights of a person and hence, is inconsistent with the Constitution of India. Therefore, the Apex Court decriminalised homosexual activities done with the consent of both the parties. Also, in the judgement, the Court concerned with the following aspects:-

1.         Constitutional Morality  

The purpose of the Constitution of India is to transform society, not to preserve the pre-existing values of the majority because the majority may be heterosexuals who prefers  the sexual intercourse only between the opposite gender i.e., male and female that would be ‘social morality’ but to transform society, it is the ‘constitutional morality’ which must prevail.

2.         The miniscule Minority  

Due to a “minuscule fraction of the country population” that belonged to LGBTQ Community, the Apex Court has previously upheld section 377 of the IPC in Suresh Kumar Koushal v.  Naz Foundation. Since the fundamentals rights are available to every person irrespective of their sexual orientation, it was said by Chief Justice Misra in Johar Case, that it is meaningless as how much the number of people asserting a fundamental right.

3.         Unreasonable Classification  

The purpose of section 377 of IPC is to protect woman and children from being subjected to carnal intercourse did not bear a reasonable nexus with the classification of persons into those who have carnal intercourse against the order of nature and those who don’t. In this, it was held that where there is discrimination by the legislation on the ground of core trait of an individual person then it cannot be termed under the reasonable classification that is based on intelligible differential [16] .

4.         Manifest Arbitrariness  

It was found by all the judges that section 377 was manifestly arbitrary [17] as even after the 2013 amendment to the IPC, it was only concerned with the sexual acts between heterosexuals. Further, this section does not distinguish sexual intercourse between consenting and non-consenting competent adults which imposes a stigma on the members of

LGBTQ Community as procreation is not the sole aim in sexual intercourse and the section itself discriminates on the basis of sexual orientation.

5.         Progressive Interpretation of the Constitution  

The Apex Court held in furtherance on the principle of progressive interpretation that the Constitution of India is a living and organic document which is capable of expansion with the change in needs, culture and the beliefs of the society, and hence, it is the duty of the courts  to make progressive and pragmatic interpretation of the law in order to ensure equality and justice in the society. Furthermore, the court was also of the opinion that the rule of courts increases when there is a case of rights of minorities in order to ensure the supremacy of law.

Submissions of the Petitioner  

1.  In Navtej Johar case, it was submitted by the petitioners that being a homosexual, bisexual or having other sexual orientation is completely natural and reflective of the expression of choice and inclination on the consent of two persons.

2.  It was contended that sexual orientation of every member of the LGBTQ Community is not a physical or mental illness but a natural variation of expression.

3.  It was urged that attraction towards the same sex or opposite sex are both naturally same and normal but the difference is of the lesser ratio of same-sex attraction.

4.  Homosexuals require more protection than the heterosexuals for the purpose to achieve their full potential and to live freely without any fear or apprehension likewise a recognition of ‘Protection of Woman from Domestic Violence Act, 2005’ [18] .

5.  Moreover, it was submitted that the rights of the LGBTQ Community needs to be recognized and protected and sexual orientation is to be treated as an integral part of every individual’s identity.

6.  It was contended that the section 377 IPC is based on a foreign ideology which denotes societal values of the Victorian era.

7.  Further, it was contended that the Apex Court should protect constitutional morality over social morality.

8.  It was also contended that it is not yet defined the expression “carnal intercourse” and hence, it is being used arbitrarily and making the object of this provision inconsistent with the basic fundamentals of the Constitution.

9.  It was submitted that ‘sex’, under article 15 of the Constitution includes ‘sexual orientation’ as observed in the case of Justice K.S. Puttaswamy (Retd.) v. Union Of India [19] . Further, a person can be prosecuted under section 376(c) to 376(e) for the sexual acts done with an opposite gender without their consent whereas, the same acts are penalized u/s 377 if done with a partner of the same gender.

10.  Moreover, it was contended by the petitioners that the 172nd Law Commission Report

recommends deleting section 377 IPC.

11.  The petitioners submitted that the right to life and liberty of a citizen is a fundamental right under article 21 of the Constitution, as observed by the Apex Court in Kishore Samrite v. State of U.P [20] and Umesh Kumar v. State of Andhra Pradesh [21] which are arbitrarily curbed by section 377 IPC.

12.  Furthermore, the Apex Court also held that the reputation is protected by the constitution as it is individual’s personal security under the right to enjoyment of life and liberty.

13.  Lastly, it was contended that the LGBTQ+ community is deprived of its basic rights such as health education, public recognition because of constant terror in their minds due to the presence of this provision.

Submission of the Respondents  

1.                  It was submitted by the respondents that it would be violative of the principle of natural justice if no opportunity is given to Union of India where it is allowing any issue other than the constitutional validity of section 377 IPC.

2.                 It was further submitted by the respondents that various provisions of the Constitution granted reliefs to the said community with issues pertaining to gender identity and sexual orientation.

3.                 It was also contended that any other relief cannot be granted to them and such prayers are abusive of privacy and personal liberty by transgressing the idea of public morality and dignity.

4.                 The respondents contended that in homosexuals, the percentage of prevalence of AIDS is much more than heterosexuals and thus, right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.

5.                 It was further contended that if section 377 IPC is declared unconstitutional, then the bulwark of social culture that is the family system will be in a maelstrom.

6.                 Furthermore, it was contended by the petitioners’ argument that, “the status of homosexuals has changed in various parts of other countries”. This contention must not be considered since the cultural, economic and political heritage of those countries is quite different from that of India.

7.                 The respondents also contended that section 377 IPC is also applied to forced penal, non-vaginal sexual intercourse between adults so if it is struck down, then it would render the victims complaining of forced acts under such provision remediless.

8.                 It was also submitted that if same-sex adults are excluded from section 377 IPC then it would make a married woman remediless under IPC against her bisexual husband and his consenting male partner.

9.                 Moreover, it was submitted that in Fazal Rab Choudhary v State of Bihar [22] , it was held that the offences under section 377 IPC imply sexual perversity. Furthermore, this Hon’ble Court also held that there should not be identical transplantation of western ideologies into our country in the case of Jagmohan v. State of U.P [23]

10.            The respondents also contended that the word ‘sexual orientation’ is alien to the Constitution of India, hence, if the word ‘sex’ is to be replaced with the word ‘sexual orientation’ under article 15, or a new term i.e. ‘sexual orientation’ is to be inserted under article 15, is a matter of Constitutional Amendment, which is the responsibility of the Legislature. Hence, Section 377 should not be considered to be in violation of Article 15 of the Constitution of India.

11.            It was further contended that penetration into non-sexual parts of the body under the concept of against the order of nature does not discriminate as it is based on biological reality which can never be unconstitutional.

12.            Furthermore, the respondent relied on the Apex Court’s decision in the Suresh Kumar Kaushal case [24] , in which there is a presumption of the constitutionality of legislation and the court must adopt self-restraint and thereby refrain from giving birth to judicial

legislation and the legislative wisdom of the Parliament must be respected and it must be left to the Parliament to amend Section 377 IPC. Furthermore, in the case of Union of India v. Deoki Nandan Aggarwal [25] the court was of the opinion that it should not re-write, recast or reframe the legislation for any good reason to which it has  no power to legislate, and therefore, the courts cannot add words to a statute or read words into it which are not there.

Critical Analysis of the Judgment  

1.  In the judgment, the ratio to the decision given by Justice R. F. Nariman, he quotes “The love that dare not speak its name” which describes that how the love exists between same-sex couples which were described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem two love, published in 1894 in Victorian England” but the same statement can fit duly in context to the cases of adultery or extramarital affairs, which is penalised under the law. Furthermore, in both these situations, both the offenders duly have the consent to the same but this does not make their act legitimate in the eyes of law. So, how does love between homosexuals make any difference? Furthermore, it is expected from the Hon’ble Court to keep aside the personal views and emotions and to interpret the law in its true sense.

2.  In the above judgment, two cases were cited: National Legal Services Authority v. UOI [26] – in which it was construed that gender identity and sexual orientation of an individual are an integral part of article 15 and 21 of the Constitution of India. Moreover, the court also referred to the case of Justice K. S. Puttaswamy (Retd.) v. Union of India [27] in which, the right to privacy was given a fundamental status under the ambit of Article 21 which enured in favour of all persons, as well as the right to make individual choices was found to be an integral part of a person’s way of living in which the state is ought not to interfere.

In context with the abovementioned cases, the term sexual orientation is an alien term and is nowhere mentioned under article 15 of the Constitution of India and  if the Apex Court deems it fine to insert the same under the ambit of article 15 of the Constitution, then the court must recommend the same to the legislature, since the

Constitution has vested the power of amendments to the legislature and not to the Judiciary. The same was also duly contended by the respondents. It is further contended that the ambit, scope and limitations to the right to privacy, as mentioned in the case of Justice K.S.Puttaswamy (Retd.) v. Union Of India  is yet to be determined. Since the right to privacy is not an absolute right, sexual activities within the same sex must not be treated in the light of the right to privacy.

3.  The status of homosexuality in different countries and views presented by different foreign courts form a part of the ratio of the judgement, however, the adoption of certain policies and theories in some foreign land must not be the sole purpose to determine the validity of certain legislation within the country. Moreover, the court also considered the 172nd Law Commission report which talks about deleting Section 377 IPC, it is to be noted that the 172nd Law Commission report, though, is of the belief of deleting section 377 IPC, it does not present the view of decriminalising same-gender Sex. Rather, it suggests serving each and every offense which is covered under the ambit of section 377 to be dealt with indigenous provisions.

4.  Justice Nariman, in ratio to his judgment, states that in the context of India, fundamental right to privacy would include at least the following three aspects:

o   “Privacy that involves the person i.e. when there is some invasion by the state, of a person’s rights related to his physical body.

o   Informational Privacy that does not deal with a person’s body, but rather a person’s mind.

o   The privacy of choice, which protects an individual’s autonomy over fundamental personal choices”

In light of the interpretation of privacy made by the Hon’ble justice Nariman, if all three principles are read together, it gives complete immunity to a citizen under the right to privacy. No limitations have been discussed by Justice Nariman, and if the interpretation of the right to privacy is done in the same way as interpreted by Justice Nariman, then, in that situation each and every law would stand to be an inconsistency with the Article 21 of the Constitution. Hence, it must be admitted that such interpretation of the right to privacy is incomplete and does not match the objective sought to be achieved under article 21 of the constitution of India.

5.  The Hon’ble Court also highlights the principle of “right to self-determination and individual autonomy”. In this regard, Justice Chandrachud gives ration over this principle and is of the opinion that human dignity is intrinsic to preserving the sanctity of life. He believes that “life is truly sanctified when it is lived with dignity” he further states that, “there should be no antagonism between the sanctity of human life and its dignity as well as quality. The quality of life ensures the dignity of living and dignity is a bit a process in realizing the sanctity of life”. The same is true and acceptable but the principle of self-determination cannot be relied upon since a person may change his sanctity again and again over a period of time, in the absence of the actual procedure of self-determination, and such principle, without the presence of a codified procedure, can be used arbitrarily. Hence, this principle cannot be relied upon, until complete guidelines are given by the Legislature over this principle.

CONCLUSION  

After a long decade of time when the rights of LGBTQ+ community has given due consideration after 158 years of implementation of IPC and in furtherance of the same, the judgment of Navtej Singh Johar & Ors. v. Union of India [28] was passed as on 6th September 2018, decriminalizing section 377 of the IPC. But apart from that, there are other perspectives like the laws relating to such community are not yet defined providing a hindrance to their life. Also, there is no proper awareness regarding homosexuality in society. Further, the legislation must pass an amendment to section 377, making it clear, and removing any sort of ambiguity to such provision. Also, the legislature must pass special legislation, which would deal in rights, duties and remedies available to the LGBTQ+ community. Therefore, the verdict has turned out to be an effective step towards securing the rights of LGBTQ+ community but requires a social change too in the society.

[1] Section-377, Indian Penal Code, 1860. [2] Acronyms, Initialisms & Abbreviations Dictionary, Volume 1, Part 1. Gale Research Co., 1985, ISSN 978-0-8103-0683-7. Factsheet five, Issues 32-36, Mike Gunderloy, 1989. [3] Indian Penal code, 1860 [4] Writ Petition (Civil) No 494 of 2012. [5] Ibid [6] Section-377, Indian Penal Code, 1860 [7] Sexual offences act,1967 [8] Article 14, Constitution of India [9] 1964 SCR (1) 332 [10] 1980 SCR (2) 557

  [11] (1978) 1 SCC 248 [12] (2015) 6 SCC 702 [13] Writ Petition (civil) 61 of 2002

  [14] CIVIL APPEAL NO.10972 OF 2013 [15] Navtej Singh Johar & Ors. v. Union of India WP(Crl.)No.76/2016 [16]  Malhotra J, paragraph 14.3, Navtej Singh Johar & Ors. v. Union of India [17] Misra CJ, paragraph 239; Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9       in Navtej Singh Johar & Ors. v. Union of India

  [18] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 [19] (2017) 10 SCC 1 [20]( 2013) 2 SCC 398 [21]( 2013) 10 SCC 591 [22] (1982) 3 SCC 9 [23] (1973) 1 SCC 20 [24] Suresh Kumar Kaushal v Naz Foundation (2014) 1 SCC 1

  [25] (1992) SUPP (1) SCC 323 [26] (2014) 5 SCC 438 [27] (2017) 10 SCC 1

  [28] (2017) 10 SCC 1

  [29] WP(Crl.)No.76/2016

[1] Section-377, Indian Penal Code, 1860.

[2] Acronyms, Initialisms & Abbreviations Dictionary, Volume 1, Part 1. Gale Research Co., 1985, ISSN 978-0-8103-0683-7. Factsheet five, Issues 32-36, Mike Gunderloy, 1989.

[3] Indian Penal code, 1860

[4] Writ Petition (Civil) No 494 of 2012

[6] Section-377, Indian Penal Code, 1860

[7] Sexual offences act,1967

[8] Article 14, Constitution of India

[9] 1964 SCR (1) 332

[10] 1980 SCR (2) 557

[11] ( 1978) 1 SCC 248

[12] (2015) 6 SCC 702

[13] Writ Petition (civil) 61 of 2002

[14] CIVIL APPEAL NO.10972 OF 2013

[15] Navtej Singh Johar & Ors. v. Union of India WP(Crl.)No.76/2016

[16] Malhotra J, paragraph 14.3, Navtej Singh Johar & Ors. v. Union of India

[17] Misra CJ, paragraph 239; Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9       in Navtej Singh Johar & Ors. v. Union of India

[18] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755

[19] ( 2017) 10 SCC 1

[20] (2013) 2 SCC 398

[21] 2013) 10 SCC 591

[22] (1982) 3 SCC 9

[23] 1973) 1 SCC 20

[24] Suresh Kumar Kaushal v Naz Foundation (2014) 1 SCC 1

[25] (1992) SUPP (1) SCC 323

[26] (2014) 5 SCC 438

[27] (2017) 10 SCC 1

[28] WP(Crl.)No.76/2016

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Impact of Section 377 on Indian Family Law

Written by Pradhuman Latta , pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy offered by  Lawsikho  as part of her coursework. Pradhuman is currently a student of law at SVKM’s NMIMS Kirit P. Mehta School of Law.

Introduction

“I am what I am so take me as I am” the famous quote by Johann Wolfgang Von Goethe perfectly suits the situation in the contemporary times in which people accepted and supported the LGBTQ i.e. Lesbian Gay Bisexual Transgender Queer community. The act of accepting the changes shows that the people are shunning down the clichés that were prevalent in the society. With the change in time, various developments are taking place, people are accepting the changes in a more cordial way, This shows that mentality of the people is changing and they are becoming more flexible towards adopting the changes. Recently, in the case of Navneet Singh Johar and others. Vs Union of India , the honorable Supreme Court of India decriminalized section 377 of IPC which criminalized consensual unnatural sex as it violated the right to equality. The Supreme Court verdict is a major milestone for LGBTQ- identifying people across the country, where homosexuality remains a social taboo and gay people face endemic discrimination.

The decriminalization of Section 377 by the Supreme Court gave LGBTQ a separate and dignified status in the society. The court decriminalized it as it was violative of Article 14, Article 19 and Article 21 of the constitution. Article 14 talks about the right to equality, as the people of the LGBTQ community, were not being treated equally as compared to the other communities. Article 19(1)(a) talks about freedom of speech and expression but the people of LGBTQ community were not allowed to express their feelings and emotions, therefore, it violated Article 19(1)(a). Every citizen of India has the fundamental right to live with dignity and pride, earlier the people of the LGBTQ community were discriminated by society openly or insidiously which hampered their dignity due to which they were compelled to live in isolation and are treated like a pariah, therefore, they had to live without revealing their emotions which intend to violate their right to live with dignity. Many instances have shown up with regards to the humiliation that was faced by the members of this community at their workplaces which eventually led to their resignation. With the decriminalization of section 377, the community got equal rights as compared to the other communities.

Though the decriminalization of section 377 will give LGBTQ community a separate and dignified status but at the same time it will have cascading effect on existing laws, especially personal laws such as section 32(d) of the Parsi Marriage and divorce act,1936; section 27(1-A) of the special marriage act,1954; section 10(2) of the Indian divorce act, 1869; section 13(2) of Hindu marriage act, 1955 and many other sections and acts.

The main objective of this research paper is to analyze the impact of decriminalization of section 377 of IPC on Indian family laws. The recent judgment could bring a deadlock in certain upcoming cases involving the LGBTQ community with or without amendments could be difficult to apply the law.

The main problem which will be faced in the legislation which deals with Indian family laws is in interpreting the terms ‘husband’ and ‘wife’. The problems which will be faced in these legislations are discussed below:

Hindu Marriage Act,1955

The major problem after the judgment in favor of the LGBTQ community is the interpretation of the term husband and wife, until now it was the normal understanding amongst the people that husband is considered to be a male and wife is considered to be female, with the decriminalization of section 377 the interpretation of these words became imperative because if these terms are not interpreted then it will become difficult to determine the that who is to be considered as ‘husband’ and ‘wife’ in case of homosexual marriages as there is no separate law regarding marriage of LGBTQ community as in the case of other laws governing the marriages.

If the Meaning of the terms husband and wife are not properly interpreted then there will be ambiguity in understanding the law, for example in section 13(2) of this act, the grounds on which a wife can take divorce are mentioned but in gay marriage the condition as specified in the section cannot be fulfilled, therefore he cannot claim a divorce under the grounds which are mentioned in the clause. Therefore, section 3 i.e. the definition clause of the act needs to be amended and the definition of husband and wife should be added to the clause to remove the ambiguity regarding the homosexual and transgender marriages.

Parsi Marriage And Divorce Act,1936

Under Section 2 of the Act, the definition of the husband and wife is mentioned which shall be amended after the decriminalization of section 377 as it decriminalized the homosexuality and consensual sex between homosexuals. Therefore, the definition clause should be amended and the definition of the husband and wife shall be written with respect to the LGBTQ community.

Moreover, in Section 32(d) of the Act, an unnatural offence is one of the grounds mentioned for the divorce, therefore, as the homosexuality is decriminalized so the unnatural offence has to be defined more clearly so that it does not create ambiguity in interpreting the law.

Hindu Adoption and Maintenance Act, 1956

This act also deals with the same problem of interpretation of the terms husband and wife, therefore, to clear ambiguity in this act regarding the husband and wife, Section 3 of this act i.e. the definition clause should be amended and the definition of husband and wife should be added while considering the point of the LGBTQ community.

Section 7 and 8 of the act mentions the capacity of the male and female Hindu to take in adoption, according to me a clause should be added in both the section that if the parents from the LGBTQ community want to go in for adoption then they can also adopt the child with the consent given by both of them.

Indian Divorce Act,1869

Section 10(2) of the Act mentions the grounds on which a wife can take divorce but the same problem arises when the there is a case of a homosexual marriage, therefore the word husband and wife should be interpreted to clear the vagueness of the act as after the decriminalization of section 377 even a male can be considered as a wife and a female can be considered as the husband.

Special Marriage Act, 1954

Section 27(1-A) of the Special Marriage Act talks about the grounds on which wife may present the petitions of divorce in the district court. Here, sodomy is also given as a ground of divorce, therefore, the word sodomy shall be described in a more clear way as it has been decriminalized by the court. The terms husband and wife should be interpreted with respect to the LGBT community and shall be included in the act.

Referring to all the acts mentioned above, the major problem that is in the acts is regarding the interpretation of the terms husband and wife. Since Section 377 has been decriminalized so if homosexual marriage happen in the society then they will be governed by these Acts only as there is no separate legislation for LGBTQ community, therefore the homosexual marriages which will be happening, will be governed by these act only and these acts are subject to interpretation until and unless they get amended or a new act comes for this community. Therefore, the terms ‘Husband’ and ‘Wife’ should be interpreted with respect to LGBTQ community i.e definition of both husband and wife should include male as well as female spouse.

The other major problem which can arise in homosexual marriages with respect to Indian family laws is to decide who would be liable to pay the maintenance as in the case of divorce, which could be difficult to ascertain as the gender remains the same for both the parties.

Therefore, according to me the decriminalization of Section 377 of IPC will have a great impact on Indian family laws and will create a lot of ambiguity in interpreting the laws for them. So regardless of amending all the Acts and personal laws, the legislators should amend the acts except personal laws such as special marriage act, Indian divorce act for the people of LGBTQ community to prevent the chaos. Another thing which can be done if the amendments are not initiated by the legislators for the LGBTQ community is to draft a separate legislation for them which will cover their family law system but drafting of new legislation will take time so amending special marriage act and other laws apart from personal laws will be more feasible and beneficial for the community as well as society.

Conclusion and Suggestion

The supreme court’s verdict on Decriminalization of section 377 was a major milestone for the LGBTQ community as it gave them the right to reveal their emotions and live a dignified life but at the same time it will affect various other laws especially personal laws such as section 32(d) of the Parsi Marriage and divorce act,1936; section 27(1-A) of the special marriage act,1954 etc. Therefore, to deal with this problem several amendments in the legislation dealing with the family laws should be done such as the interpretation of the word ‘husband’ and ‘wife’ should be made properly.

The marriages of the LGBTQ community should happen under the special marriage act, 1954 despite personal laws as it will be more clear and unambiguous as compared to the personal laws, moreover, in Shariat law homosexual marriages are not allowed therefore Muslims cannot do homosexual marriages if they go with their personal laws. Therefore all the marriages of LGBTQ shall be done under the Special Marriage Act to remove the ambiguity and to prevent the chaos or the legislators should draft a new act which, specifically will deal with the marriages of LGBTQ community.

In the end, I would like to say that Though, the judgment by the Hon’ble Supreme Court was given in the favor of the LGBTQ community but the social implications of it would be a colossal task to be dealt by the community members. The judgment should work effectively both on paper and in practicality.

Students of  Lawsikho courses  regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

RELATED ARTICLES MORE FROM AUTHOR

Kaushal kishor vs. state of uttar pradesh & ors. (2023) , smt. indrakali vs. ravi bhan prasad (2012), sampath kumar vs. enforcement officer madras .

Sir, as per my knowledge the Hon’ble S. C. has decriminalized sexual intercourse of same sexes,but hasn’t allowed their marriage and thus divorce.Please clarify my doubts

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The Journey of Section 377

The journey of the LGBT- lesbian, gay, bisexual and trans gendered community, in India has come a long way. This was a movement for the basic rights of the community which has long struggled to be accepted by the society and the law. Our society has long forced us to believe that the only acceptable form of a relationship is heterosexual marriages. The paper broadly discusses the history and evolution of the rights of LGBT community in India. The objective of our study is to understand the extent of acceptance the LGBT community has received, post the decriminalization of Section 377. It also aims to explore the hidden facts of section 377 and its implications.

Related Papers

QUEST JOURNALS

This paper examines the successful fight against the provision in Section 377 of the Penal Code of India that criminalized private consensual sex between adults of the same sex. This law had led to serious discrimination against people engaging in homosexual acts, who were subjected to frequent beatings and blackmail attempts by police, who used the threat of prosecution against them. NGOs working with sexual minorities have also been harassed and sometimes charged under Section 377. By stigmatizing homosexuality and threatening gay men with prison, the law is also likely to have impeded the battle against HIV. The provision was read down in July 2009 after an innovative, sustained, mass media campaign by activists. The Voices Against 377 coalition brought together sexuality and lesbian, gay, bisexual and transgender (LGBTQI) organizations, who were previously marginalized, with groups working in areas such as children's rights and feminist groups, showing that support for non-discrimination towards sexual minorities was broad-based. Further legal and social changes are needed for LGBTQI individuals to gain full acceptance and equality within Indian society. However, the judgment transcended the LGBTQI issue with the implication of protection for all minorities and introduced for the first time in South Asia the idea of sexual citizenship.

Dogo Rangsang Research Journal

SHIVNARAYAN TIWARI

This research paper will help you understand about the human sexuality and talks about the various types of gender identities currently evolving in the Indian society. The emergence of legal status and rights of the LGBTQIA community has been mainly derived from the precedence and doctrines followed in the highest courts of the United States and its consequences can be seen in alleviating the conditions of the community all over the world. The experience of having an exclusive or nearly exclusive erotic preference for people of the same sex in fantasies and, typically, through the realisation of sexual intimacy with people of the same sex, is referred to as "homosexuality." It can be thought of in terms of identity, behaviour, and desire. The emotional reaction to same-sex attraction is homosexual desire. When people who are the same sex interact sexually, it is considered homosexual behaviour. The assumption of a self-label known as "homosexual identity" signifi...

CERN European Organization for Nuclear Research - Zenodo

Pratik Maitra

International Journal of Law, Humanities & Social Science

IJLHSS Journal

This analysis paves aspect to question the view of Indian citizens against homosexuality as a crime which unsettles community morality, affability or modesty. By criminalizing Section 377 of IPC, the bylaw will have an advantage to discriminate in the company of citizens. By in search of reforms to the sexual offences with a regular creature constitutional rights prism, we both eliminate the inequality between mutual gender and sexuality based on violence and discrimination. Criminalizing the Section 377 of IPC solely concentrates on punishment for the crime sooner than as long as an epithet of recovered laws and procedures to claim equality according to the article 14 which is the ultimate right of every Indian citizen. If section 377 is abolished, it opens an interface of acceptance and achievement for the LGBT community. Decriminalization would present a stepping deseed for an outdo soul and extra-constitutional rights for a commune that has been oppressed for consequently long. In this article, we will furthermore discuss the view about the fresh verdict of the Supreme Court decriminalizing Section 377 and attain a react whether it would let somebody see India with a progressive light.

Babuli chandra Nayak

Mr. Babuli Chandra Nayak

This paper Explores of the Analyzing the influence of the LGBTQ community a study of legal perspective in India study examines the value of existing legal measures in India that are designed to protect the rights of the LGBTQ community and assess their practical implications. The Universal Declaration of Human Rights promises a world in which

Indian Journal of Gender Studies

Bhaskar Lama

The Indian Supreme Court in the Navtej Singh Johar vs Union of India judgement (6th September 2018), decriminalized homosexuality. However, the space cleared by the legal judgement cannot be immediately availed of by those affected by it because legally determined/defined space doesn’t necessarily become social space. This essay looks at the formation of this social space and the perception of homosexuality in civil society. It will examine the impediments of communication that homosexuals encounter in the heteronormative world, and the ensuing misunderstandings regarding homosexuality. It argues that a proper medium is necessary to provide communication in a social space that would then treat homosexuality as ‘normal’. I argue that Mahesh Dattani’s plays enable the imagination and the construction of such an accepting civil society.

Economic and Political Weekly

Jason Fernandes

Reception of the reading down by the Supreme Court of Section 377 should be more circumspect, since there is much in the decision that offers reasons for concern. Rather than making a rupture with the contemporary majoritarian political climate, the decision is, in fact, a continuation of a longer nationalist project aimed at consolidating the ideal citizen subject of the Indian nation state.

GLC Contemporary Law Review

Divyanshu Chaudhary

The essence of liberty as sewed in the organic text of the Constitution of India seems to be faded by virtue of many fatal statutory blows being imposed upon the sexual minorities (specifically discussing about the homosexuals) within the country trampling upon their constitutional and human rights which are nevertheless foundational requisites to preserve and maintain, in real sense, one's life and fashion. The concept of individual freedom embodied in Constitution is not being allowed to realize in the manner as it was intended to be by way of right to have choice within the permissible walls of the freedom but the reality is that even today, in a democratic republic, people are not being allowed to live in the manner they want to live because the social acceptance more than the human rights is being given predilection. Many reasons are assigned for the deprivation of their rights by both, law as well as society, but what is to be considered and scrutinized is that whether the rights to be enjoyed by others are subject to the social and unreasonable legal acceptability. Adhering to this background, this paper is inclined towards the critical examination of S. 377 Indian Penal Code, 1960 (hereinafter as IPC) with a view to come with the reasons of its insertion in the statute book and its applicability to homosexuals. It also depicts as to how the social acceptance is prevailing over the rights of other human beings; this paper finally delineates the present-day scenario of the prevalence of this evil legislation which is trampling upon the human & constitutional rights in the form of statutory whiplashing.

Mutinies for Equality

Dipika Jain

On July 2, 2009, the Delhi High Court read down Chapter XVI, Section 377 of the Indian Penal Code. Prior to the Court’s ruling, Section 377 criminalized sexual activity “against the order of nature,”[3] and served primarily as a vehicle for criminal sanction of male homosexual activity. The 150 year old law, which could impose as harsh a penalty as life imprisonment for violations, had been challenged by public interest litigation for a decade. In its historic judgment, the Delhi High Court found that the provision violated Article 14 and 21 of the Indian Constitution, which provides for the equality of all Indian citizens and the right to live with dignity. The reading down of Section 377 by the Delhi High Court is a pivotal moment in Indian history. Submissions made in the judgment as well as other studies have shown that anti- homosexuality laws largely impact the LGBT community in two ways: (i) anti- sodomy laws affect the relationship of sexual minorities with law enforcement agencies, leading to differential treatment; and (ii) these laws directly (and adversely) affect individual notions of self-esteem, self-worth and play a major role in social and familial acceptance and respect. Thus, the Centre for Health Law, Ethics and Technology (CHLET) at Jindal Global Law School undertook an empirical study to assess the impact of the judgment on the queer community in Delhi and to especially evaluate (i) whether, after decriminalization, members of sexual minorities have felt any difference in the treatment they receive from law enforcement officials, and (ii) whether they believe that they have achieved a greater level of respect and acceptance, from society as well as from their own families. The research conducted for this study consists mostly of personal interviews with members of the LGBT community. This impact assessment is the first of its kind in India and, apart from providing valuable first-hand accounts of LGBT life pre- and post-decriminalization of homosexuality. Researchers interacted with individuals belonging to different sexual minorities who described their lives before and after July 2, 2009. The findings of the interviews are consistent with similar studies in other countries, such as South Africa, the United States, Canada, and Australia. These studies show that decriminalization consistently leads to a rise in the level of social acceptance and, more importantly, self-acceptance of sexual minorities. The findings of this report clearly show that the Delhi High Court judgment has positively impacted the LGBT community and has improved the quality of life of sexual minorities. However, greater efforts must be made, and strategies must be formulated in order to truly integrate the LGBT community into Indian society, eliminate stigma and discrimination, and award them the same opportunities as those available to other citizens.

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• Published: 16 March 2017

Global warming and recurrent mass bleaching of corals

• Terry P. Hughes 1 ,
• James T. Kerry 1 ,
• Mariana Álvarez-Noriega 1 , 2 ,
• Jorge G. Álvarez-Romero 1 ,
• Kristen D. Anderson 1 ,
• Andrew H. Baird 1 ,
• Russell C. Babcock 3 ,
• Maria Beger 4 ,
• David R. Bellwood 1 , 2 ,
• Ray Berkelmans 2 ,
• Tom C. Bridge 1 , 5 ,
• Ian R. Butler 6 ,
• Maria Byrne 7 ,
• Neal E. Cantin 8 ,
• Steeve Comeau 9 ,
• Sean R. Connolly 1 , 2 ,
• Graeme S. Cumming 1 ,
• Steven J. Dalton 10 ,
• Guillermo Diaz-Pulido 11 ,
• C. Mark Eakin 12 ,
• Will F. Figueira 13 ,
• James P. Gilmour 14 ,
• Hugo B. Harrison 1 ,
• Scott F. Heron 12 , 15 , 16 ,
• Andrew S. Hoey 1 ,
• Jean-Paul A. Hobbs 17 ,
• Mia O. Hoogenboom 1 , 2 ,
• Emma V. Kennedy 11 ,
• Chao-yang Kuo 1 ,
• Janice M. Lough 1 , 8 ,
• Ryan J. Lowe 9 ,
• Gang Liu 12 , 15 ,
• Malcolm T. McCulloch 9 ,
• Hamish A. Malcolm 10 ,
• Michael J. McWilliam 1 ,
• John M. Pandolfi 6 ,
• Rachel J. Pears 18 ,
• Morgan S. Pratchett 1 ,
• Verena Schoepf 9 ,
• Tristan Simpson 19 ,
• William J. Skirving 12 , 15 ,
• Brigitte Sommer 6 ,
• Gergely Torda 1 , 8 ,
• David R. Wachenfeld 18 ,
• Bette L. Willis 1 , 2 &
• Shaun K. Wilson 20  

Nature volume  543 ,  pages 373–377 ( 2017 ) Cite this article

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• Climate-change ecology
• Marine biology

During 2015–2016, record temperatures triggered a pan-tropical episode of coral bleaching, the third global-scale event since mass bleaching was first documented in the 1980s. Here we examine how and why the severity of recurrent major bleaching events has varied at multiple scales, using aerial and underwater surveys of Australian reefs combined with satellite-derived sea surface temperatures. The distinctive geographic footprints of recurrent bleaching on the Great Barrier Reef in 1998, 2002 and 2016 were determined by the spatial pattern of sea temperatures in each year. Water quality and fishing pressure had minimal effect on the unprecedented bleaching in 2016, suggesting that local protection of reefs affords little or no resistance to extreme heat. Similarly, past exposure to bleaching in 1998 and 2002 did not lessen the severity of bleaching in 2016. Consequently, immediate global action to curb future warming is essential to secure a future for coral reefs.

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Acknowledgements

The authors acknowledge the 21 institutions that supported this research, in Australia, the UK, and the USA. Twenty-six of the authors are supported by funding from the Australian Research Council’s Centre of Excellence Program. Other funding support includes the Australian Commonwealth Government, the European Union, the USA National Oceanographic & Atmospheric Administration, and USA National Science Foundation. GlobColour data ( http://globcolour.info ) used in this study has been developed, validated, and distributed by ACRI-ST, France. The contents in this manuscript are solely the opinions of the authors and do not constitute a statement of policy, decision or position on behalf of NOAA or the US Government. We thank the many student volunteers who participated in field studies.

Author information

24 Hanwood Court, Gilston, Queensland 4211, Australia

Authors and Affiliations

Australian Research Council Centre of Excellence for Coral Reef Studies, James Cook University, Townsville, 4811, Queensland, Australia

Terry P. Hughes, James T. Kerry, Mariana Álvarez-Noriega, Jorge G. Álvarez-Romero, Kristen D. Anderson, Andrew H. Baird, David R. Bellwood, Tom C. Bridge, Sean R. Connolly, Graeme S. Cumming, Hugo B. Harrison, Andrew S. Hoey, Mia O. Hoogenboom, Chao-yang Kuo, Janice M. Lough, Michael J. McWilliam, Morgan S. Pratchett, Gergely Torda & Bette L. Willis

College of Science and Engineering, James Cook University, Townsville, 4811, Queensland, Australia

Mariana Álvarez-Noriega, David R. Bellwood, Ray Berkelmans, Sean R. Connolly, Mia O. Hoogenboom & Bette L. Willis

Commonwealth Science and Industry Research Organization, GPO Box 2583, Brisbane, 4001, Queensland, Australia

Russell C. Babcock

School of Biology, University of Leeds, Leeds, LS2 9JT, UK

Maria Beger

Queensland Museum, 70-102 Flinders St, Townsville, 4810, Queensland, Australia

Tom C. Bridge

Australian Research Council, Centre of Excellence for Coral Reef Studies, School of Biological Sciences, University of Queensland, Brisbane, 4072, Queensland, Australia

Ian R. Butler, John M. Pandolfi & Brigitte Sommer

School of Medical Sciences, University of Sydney, Sydney, New South Wales, 2006, Australia

Maria Byrne

Australian Institute of Marine Science, PMB 3, Townsville, 4810, Queensland, Australia

Neal E. Cantin, Janice M. Lough & Gergely Torda

Australian Research Council Centre of Excellence in Coral Reef Studies, Oceans Institute and School of Earth and Environment, University of Western Australia, Crawley, Western Australia, 6009, Australia

Steeve Comeau, Ryan J. Lowe, Malcolm T. McCulloch & Verena Schoepf

Department of Primary Industries, Fisheries Research, PO Box 4291, Coffs Harbour, 2450, New South Wales, Australia

Steven J. Dalton & Hamish A. Malcolm

School of Environment, and Australian Rivers Institute, Griffith University, Brisbane, 4111, Queensland, Australia

Guillermo Diaz-Pulido & Emma V. Kennedy

Coral Reef Watch, US National Oceanic and Atmospheric Administration, College Park, Maryland, 20740, USA

C. Mark Eakin, Scott F. Heron, Gang Liu & William J. Skirving

School of Biological Sciences, University of Sydney, Sydney, 2006, New South Wales, Australia

Will F. Figueira

Australian Institute of Marine Science, Indian Oceans Marine Research Centre, University of Western Australia, Crawley, 6009, Western Australia, Australia

James P. Gilmour

Global Science & Technology, Inc., Greenbelt, 20770, Maryland, USA

Scott F. Heron, Gang Liu & William J. Skirving

Marine Geophysical Laboratory, College of Science, Technology and Engineering, James Cook University, Townsville, 4811, Queensland, Australia

Scott F. Heron

Department of Environment and Agriculture, Curtin University, Perth, 6845, Western Australia, Australia

Jean-Paul A. Hobbs

Great Barrier Reef Marine Park Authority, PO Box 1379, Townsville, 4810, Queensland, Australia

Rachel J. Pears & David R. Wachenfeld

Torres Strait Regional Authority, PO Box 261, Thursday Island, 4875, Queensland, Australia

Tristan Simpson

Department of Parks and Wildlife, Kensington, Perth, 6151, Western Australia, Australia

Shaun K. Wilson

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Contributions

The study was conceptualized by T.P.H. who wrote the first draft of the paper. All authors contributed to writing subsequent drafts. J.T.K. coordinated data compilation, analysis and graphics. Aerial bleaching surveys in 2016 of the Great Barrier Reef and Torres Strait were executed by J.T.K., T.P.H. and T.S., and in 1998 and 2002 by R.B. and D.R.W. Underwater bleaching censuses in 2016 were undertaken on the Great Barrier Reef by M.A.-N., A.H.B., D.R.B., M.B., N.E.C., C.Y.K., G.D.-P., A.S.H., M.O.H., E.V.K., M.J.M., R.J.P., M.S.P., G.T. and B.L.W., in the Coral Sea by T.C.B. and H.B.H., in subtropical Queensland and New South Wales by M.B., I.R.B., R.C.B., S.J.D., W.F.F., H.A.M., J.M.P. and B.S., off western Australia by R.C.B., S.C., J.P.G., J.-P.A.H., M.T.M., V.S. and S.K.W. J.G.A.-R., S.R.C., C.M.E., S.F.H., G.L., J.M.L. and W.J.S. undertook the analysis matching satellite data to the bleaching footprints on the Great Barrier Reef.

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Correspondence to Terry P. Hughes .

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Extended data figures and tables

Extended data figure 1 a generalized linear model to explain the severity of coral bleaching..

Curves show the estimated relationships between probability of severe bleaching (>30%) on individual reefs of the Great Barrier Reef in 2016 and three explanatory variables (DHWs, chlorophyll a , and reef zoning, see Extended Data Table 1 ). The DHW-only model is shown in black. For the DHW plus chlorophyll a model, the blue threshold shows the estimated relationship between probability of severe bleaching and DHW for the 25th percentile of chlorophyll a , and the brown threshold shows the same for the 75th percentile of chlorophyll a . For the DHW plus reef zoning model, the red threshold shows the relationship for fished reefs, and the green for unfished reefs. Water-quality metrics and level of reef protection make little, if any, difference.

Extended Data Figure 2 Difference in daily sea surface temperatures between the northern and southern Great Barrier Reef, before and after ex-tropical cyclone Winston.

The disparity between Lizard Island (14.67° S) and Heron Island (23.44° S) increased from 1 °C in late February to 4 °C in early March 2016.

Extended Data Figure 3 A test for the effect of past bleaching experience on the severity of bleaching in 2016.

The relationship between previous bleaching scores (in 1998 or 2002, whichever was higher) and the residuals from the DHW generalized linear model ( Extended Data Table 1 ). Each data point represents an individual reef that was scored repeatedly. There is no negative relationship to support acclimation or adaptation.

Extended Data Figure 4 Flight tracks of aerial surveys of coral bleaching, conducted along and across the Great Barrier Reef and Torres Strait in March and April 2016.

Blue colour represents land, white colour represents open water.

Extended Data Figure 5 Ground-truthing comparisons of aerial and underwater bleaching scores.

Aerial scores are: 0 (<1% of colonies bleached), 1 (1–10%), 2 (10–30%), 3 (30–60%) and 4 (60–100%) on the Great Barrier Reef in 2016 ( Fig. 1a ). Continuous (0–100%) underwater scores are based on in situ observations from 259 sites (104 reefs). Error bars indicate two standard errors both above and below the median underwater score, separately for each aerial category.

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Hughes, T., Kerry, J., Álvarez-Noriega, M. et al. Global warming and recurrent mass bleaching of corals. Nature 543 , 373–377 (2017). https://doi.org/10.1038/nature21707

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Published : 16 March 2017

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DOI : https://doi.org/10.1038/nature21707

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• Andreas Schwarz Meyer
• Alex L. Pigot
• Christopher H. Trisos

Nature Communications (2024)

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Analysis -: Abrogation of Article 377

Neolexvision Blogs, https://www.aequivic.in/post/analysis-abrogation-of-article-377

5 Pages Posted: 8 Jun 2021 Last revised: 16 Jun 2021

Aditya Choubey

Nmims university, nmims kirit p. mehta school of law, neolexvision blogs.

Aequitas Victoria Foundation

Date Written: May 30, 2021

In this blog, the author will discuss my opinion on the Judgment of scrapping Section 377 of IPC. Section 377 of IPC dealt with the unnatural sexuality activity among Man, woman, and animals shall be punishable. Scrapping of Sec. 377 is one of the major moves toward equality among different gender in India and the author will give my commentary on this Judgment further. Nature gives us liberty and it has our fundamental right to live with dignity. So our Sexual activity among different gender is considered to be one of their privacy because we can’t eliminate them as different individuals. He will analyze this judgment from the perspective of the LGBTQ community and observed it very deeply to point out the neutral theme in that. He will also take the view of the different political parties in this. Liberty and Dignity is the very fundamental right of everyone.

Keywords: LGBTQ, Liberty, Dignity, Indian Penal Code, Section 377

Suggested Citation: Suggested Citation

Neolexvision Blogs (Contact Author)

Aequitas victoria foundation ( email ).

Jehanabad, Bihar Lachiyagaon, Assam Jehanabad, Bihar 804425 India 8473808112 (Phone)

HOME PAGE: http://www.aequivic.in

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Critical Writing Program: Climate Science and Action: Earth in Crisis - Fall 2024: Researching the White Paper

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Research the White Paper

Researching the white paper:.

The process of researching and composing a white paper shares some similarities with the kind of research and writing one does for a high school or college research paper. What’s important for writers of white papers to grasp, however, is how much this genre differs from a research paper.  First, the author of a white paper already recognizes that there is a problem to be solved, a decision to be made, and the job of the author is to provide readers with substantive information to help them make some kind of decision--which may include a decision to do more research because major gaps remain. 

Thus, a white paper author would not “brainstorm” a topic. Instead, the white paper author would get busy figuring out how the problem is defined by those who are experiencing it as a problem. Typically that research begins in popular culture--social media, surveys, interviews, newspapers. Once the author has a handle on how the problem is being defined and experienced, its history and its impact, what people in the trenches believe might be the best or worst ways of addressing it, the author then will turn to academic scholarship as well as “grey” literature (more about that later).  Unlike a school research paper, the author does not set out to argue for or against a particular position, and then devote the majority of effort to finding sources to support the selected position.  Instead, the author sets out in good faith to do as much fact-finding as possible, and thus research is likely to present multiple, conflicting, and overlapping perspectives. When people research out of a genuine desire to understand and solve a problem, they listen to every source that may offer helpful information. They will thus have to do much more analysis, synthesis, and sorting of that information, which will often not fall neatly into a “pro” or “con” camp:  Solution A may, for example, solve one part of the problem but exacerbate another part of the problem. Solution C may sound like what everyone wants, but what if it’s built on a set of data that have been criticized by another reliable source?  And so it goes. 

For example, if you are trying to write a white paper on the opioid crisis, you may focus on the value of  providing free, sterilized needles--which do indeed reduce disease, and also provide an opportunity for the health care provider distributing them to offer addiction treatment to the user. However, the free needles are sometimes discarded on the ground, posing a danger to others; or they may be shared; or they may encourage more drug usage. All of those things can be true at once; a reader will want to know about all of these considerations in order to make an informed decision. That is the challenging job of the white paper author.     
 The research you do for your white paper will require that you identify a specific problem, seek popular culture sources to help define the problem, its history, its significance and impact for people affected by it.  You will then delve into academic and grey literature to learn about the way scholars and others with professional expertise answer these same questions. In this way, you will create creating a layered, complex portrait that provides readers with a substantive exploration useful for deliberating and decision-making. You will also likely need to find or create images, including tables, figures, illustrations or photographs, and you will document all of your sources. 

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Science that makes you laugh then think —

Meet the winners of the 2024 ig nobel prizes, the award ceremony features miniature operas, scientific demos, and the 24/7 lectures..

Jennifer Ouellette - Sep 12, 2024 10:00 pm UTC

Curiosity is the driving force behind all science, which may explain why so many scientists sometimes find themselves going in some decidedly eccentric research directions. Did you hear about the WWII plan to train pigeons as missile guidance systems? How about experiments on the swimming ability of a dead rainbow trout or that time biologists tried to startle cows by popping paper bags by their heads? These and other unusual research endeavors were honored tonight in a virtual ceremony to announce the 2024 recipients of the annual Ig Nobel Prizes. Yes, it's that time of year again, when the serious and the silly converge—for science.

Established in 1991, the Ig Nobels are a good-natured parody of the Nobel Prizes; they honor "achievements that first make people laugh and then make them think." The unapologetically campy awards ceremony features miniature operas, scientific demos, and the 24/7 lectures whereby experts must explain their work twice: once in 24 seconds and the second in just seven words. Acceptance speeches are limited to 60 seconds. And as the motto implies, the research being honored might seem ridiculous at first glance, but that doesn't mean it's devoid of scientific merit.

Viewers can tune in for the usual 24/7 lectures, as well as the premiere of a "non-opera" featuring various songs about water, in keeping with the evening's theme. In the weeks following the ceremony, the winners will also give free public talks, which will be posted on the Improbable Research website.

Without further ado, here are the winners of the 2023 Ig Nobel prizes.

Citation: B.F. Skinner, for experiments to see the feasibility of housing live pigeons inside missiles to guide the flight paths of the missiles.

This entertaining 1960 paper by American psychologist B.F. Skinner is kind of a personal memoir relating "the history of a crackpot idea, born on the wrong side of the tracks intellectually speaking but eventually vindicated in a sort of middle class respectability." Project Pigeon was a World War II research program at the Naval Research Laboratory with the objective of training pigeons to serve as missile guidance systems. At the time, in the early 1940s, the machinery required to guide Pelican missiles was so bulky that there wasn't much room left for actual explosives—hence the name, since it resembled a pelican "whose beak can hold more than its belly can."

Skinner reasoned that pigeons could be a cheaper, more compact solution since the birds are especially good at responding to patterns. (He dismissed the ethical questions as a "peacetime luxury," given the high global stakes of WWII.) His lab devised a novel harnessing system for the birds, positioned them vertically above a translucent plastic plate (screen), and trained them to "peck" at a projected image of a target somewhere along the New Jersey coast on the screen—a camera obscura effect. "The guiding signal was picked up from the point of contact of screen and beak," Skinner wrote. Eventually, they created a version that used three pigeons to make the system more robust—just in case a pigeon got distracted at a key moment or something.

There was understandably a great deal of skepticism about the viability of using pigeons for missile guidance; at one point, Skinner lamented, his team "realized that a pigeon was more easily controlled than a physical scientist serving on a committee." But Skinner's team persisted, and in 1944, they finally got the chance to demonstrate Project Pigeon for a committee of top scientists and show that the birds' behavior could be controlled. The sample pigeon behaved perfectly. "But the spectacle of a living pigeon carrying out its assignment, no matter how beautifully, simply reminded the committee of how utterly fantastic our proposal was." Apparently, there was much "restrained merriment."

Even though this novel homing device was resistant to jamming, could react to a wide variety of target practice, needed no scarce materials, and was so simple to make that production could start in 30 days, the committee nixed the project. (By this point, as we now know, military focus had shifted to the Manhattan Project.) Skinner was left with "a loftful of curiously useless equipment and a few dozen pigeons with a strange interest in a feature of the New Jersey coast." But vindication came in the early 1950s when the project was briefly revived as Project ORCON at the Naval Research Laboratory, which refined the general idea and led to the development of a Pick-off Display Converter for radar operators. Skinner himself never lost faith in this particular "crackpot idea."

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Research: For Influencers, Showing Your Inner Circle Can Boost Engagement

• Jaeyeon (Jae) Chung

Observations from three experiments and a review of more than 55,000 Instagram posts.

Influencer marketing is a billion-dollar industry, and its recent meteoric rise has sparked curiosity about which factors makes some influencer posts more popular than others. In a new paper, researchers analyzed more than 55,000 Instagram posts from the top 763 influencers worldwide during a six month period and discover that posts that read as more authentic to the influencer, for example posts that show close family or friends, receive the highest engagement. They offer considerations for how to harness their findings to improve brand-influencer post success.

One week in July, soccer star and entrepreneur David Beckham made four posts on Instagram. A sponsored ad for sunglasses garnered 460,000 likes. A photo celebrating a league win by Inter Miami, a team he co-owns, got 360,000. The two other posts — pictures of the athlete with his father and with his wife — received triple that engagement, with 1.3 and 1.8 million likes, respectively.

• JC Jaeyeon (Jae) Chung is the William S. Mackey Jr. Distinguished Assistant Professor at Rice University’s Jones Graduate School of Business. She earned her Ph.D. from Columbia Business School. Her research focuses on digital marketing, emerging technologies, and consumer engagement with social media and AI-driven marketing, including platforms like YouTube, ChatGPT, and NFT markets.
• Ajay Kalra is Herbert S. Autrey Professor of Marketing at the Jones School of Business, Rice University.  His current research interests include how familial associations impact consumer perceptions.  His research has been quoted in New York Times , Economist , Washington Post , Fox News among several other outlets.

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