Parth Raman
Both recognise the sexual orientation of the homosexual community and back their rights and personal liberty, reaffirm equality, sexual privacy, and autonomy
On 31 January, 2017 the United Kingdom received Royal Assent for the Policing and Crime Act, 2017 and it became law. It brought in a wide range of reforms, including automatically pardoning deceased individuals convicted of gay sexual offences and disregarding the convictions of the living under the Protection of Freedoms Act, 2012.
The reforms are commonly known as the “Alan Turing Law”, named after Alan Turing, the computer scientist of World War II fame, who was prosecuted for homosexual acts and convicted of gross indecency in 1952 but received pardon only in 2013.
It is through this Act that the ancient law criminalising consensual sex between gays was struck down. Under this law, a pardon was given automatically to all the people who died before 31 January, 2017 and convictions of those still living were set aside.
Similarly, on September 6, 2018 the Supreme Court of India in the case Navtej Singh Johar v. Union of India declared Section 377 of the Indian Penal Codeinsofar as it criminalises homosexual sex and transgender sex between consenting adults as unconstitutional. Section 377 inter-alia criminalised homosexual sex irrespective of consent amongst the sexual partners.
While holding the provision unconstitutional, the Court also held that Articles 14, 15, 19, and 21 of the Constitution of India have been transgressed without any legitimate State rationale to uphold a provision that was enacted by the erstwhile colonial government.
While both, the Alan Turing Law Model and the Supreme Court in Navtej Singh Johar judgment, deal with decriminalising consensual homosexual acts between adults, it is to be noted that there are some differences between the two. Let us make a comparative analysis of the two laws.
While the Turing Model focuses only on the male gender for pardoning and disregarding the “consensual gay sexual offence”. The law does not talk about sexual acts between lesbians and transgenders. There seems to be a kind of gender bias.
On the other hand, the Indian Supreme Court recognised the rights of all homosexuals. It recognised the rights of the LGBT community, i.e., lesbians, gays, bisexuals, and transgenders. The court held that homosexuals have a fundamental right to live with dignity and criminalising sexual acts between consenting adults is unconstitutional. It went a step ahead of the Turing Law by liberalising the way we look at the sexual orientation of different people and by upholding the sexual orientation of the LGBT community as a constitutional right.
The Alan Turing Law pardons both, the dead and the alive, for being victims of prosecution for their homosexual acts. While the Alan Turing Law directly pardons the deceased on their convictions of the crime, it makes a formal pardon for people who are alive by disregarding the offence against them. Through an ex-post-facto pardon to the prosecuted and convicted victims, the Turing Law has indeed done greater justice to the marginalised gay community.
Although the Supreme Court of India has held Sec 377 unconstitutional, it has not given any direction to either pardon or erased the records of people convicted under it. The Supreme Court’s judgment is definitely a monumental step towards the recognition of the rights of LGBT community but unlike the UK law, it has not made the ruling an ex-post-facto pardon for those convicted under Sec 377. Therefore, while the Supreme Court’s judgment does make it unconstitutional for the State to prosecute and convict adult same-sex couples for consensual sex, those convicted are looked upon as criminals because, apart from being victims of societal stigma, their convictions still remain on their files.
The British law and the Indian judgment both recognise the sexual orientation of the homosexual community. The progressive realization of rights and personal liberty reaffirm equality, sexual privacy, and autonomy, among others. This is a welcome change in the 21st century. With the legislation of the United Kingdom expanding their legislative mindset and the Supreme Court enforcing transformative constitutionalism, these laws are moving with the changing society. The faith in the constitution as a living and organic document of the law stands restored.
The recognition of different sexual orientations is a welcome change in the mindset of the lawmakers. The right to dignity of human life has been given an entirely different spotlight with the introduction of laws legally recognising the sexual orientation of the LGBT community and initiating acceptance of these people into the community which was until the recent past, anti-LGBT. While the earlier laws looked at the interests of the LGBT community as “against the order of nature”, the current laws recognise that change is natural and the law must accordingly cope with the changes. The Supreme Court went a step ahead and passed a direction to the State to ensure that the judgment is given wide publicity so as to remove the stigma associated with such persons and to facilitate the acceptance of these persons into the society.
The Turing Law and the SC judgment make it clear that the spirit of freedom, equality, and liberty is upheld when two different adults, eligible under the law to express their choice, are not criminalised by the same law. The earlier heteronormative framework imposed itself upon the individuals as part of “social norms” and was further legitimised by the law leading to the suppression of rights and liberties of the LGBT community.
It is universally accepted jurisprudence that adults are allowed to make decisions for themselves. The law before the Turing Law and the SC judgment recognised the sexual relationship between adults if it was consensual. And these new laws recognise the decision of consenting adults with respect to their sexual partners by letting go of the ancient hetero-patriarchy.
The UK and India have made historic reforms concerning the rights of the LGBT community by breaking the barriers set out by ancient laws. This is a welcome change in the law as well as the society. With the legal recognition and backing, a final nail has been driven into the coffin of discrimination. The fight for recognition and rights has just begun but there is still a lot of social stigma attached to them and therefore the enforcement of these rights is going to take a lot of time.
(The writer is Visiting Faculty, ICRI Group and Law Scholar at UILS, Chandigarh University. The views expressed are personal.)
