Noted Lawyer, Ram Jethmalani's take on the high court judgement on Homosexuality

The great legal Philosopher and Reformer of the 19th Century Jeremy Bentham produced his greatest work “ The Theory of Legislation” in the first half of the 19th Century. The book propounded the great Principle Of Utility a veritable working Manual for law makers all over the world.

“ THE PUBLIC GOOD ought to be the object of the Legislator, GENERAL UTILITY ought to be the foundation of his reasonings. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good”.

The lesson was simple yet profound. Elaborating this principle he propounded that nature has placed man under the realm of pleasure and pain. To these man owes his ideas, judgments and determination of his life. Evil is pain or the cause of pain. Good is pleasure or productive of pleasure. The criminal law prescribes a series of punishments for different acts and omissions. Every punishment produces pain at least to him on whom it is inflicted. Punishment, therefore, is an evil. Its only justification is that it prevents a greater evil or produces in some other or others or the general public much more pleasure. From these two principles he had no difficulty in formulating the principles on which a rational Penal Code should be constructed.







The High Court of Delhi earlier this month produced a memorable judgment declaring a Section of the Indian Penal Code of 1860 as constitutionally invalid. Lord Macaulay and his fellow Commissioners who framed that Code had presumably not taken Bentham’s teachings seriously, at least when they introduced their notion of Victorian morality into this section and made it part of our criminal law.

Voluntarily having intercourse against the order of nature with any man, woman or animal is declared a serious crime for which the punishment may well extend to 10 years and fine or both. As judicially interpreted and noticed by the Delhi High Court sexual activities hit are the following:

1. Intercourse by a man with a woman other than vaginal; such as involving the anus, mouth or any other orifice in the human body;

2. Intercourse with any male involving the anus or any other orifice;

3. Act commonly known as practice of bestiality.

Section 377 by its marginal note classifies all three as ‘unnatural offences’ and the text of the Section stigmatizes the intercourse as carnal and against the order of nature. Macaulay did not know that the fish, iguana lizards, roosters, dogs, cats, horses, rabbits, lions and many other species mount others of the same sex. Even cows in heat are known to mount other cows. Homosexual behaviour is so rampant in non human species that it is difficult to justify the epithet unnatural for this behaviour.





Bentham rightly dismissed these acts as offending good taste. Neither he nor any other rational person would see in these actions any element of producing the evil of pain. Of course my assumption is that intercourse is by free consent and does not involve minors who are incapable of consenting to remain untouched by the Section.

The Delhi High Court judgment is full of learning and references to literature on psychiatry, genetics, religion and Court judgments delivered in other jurisdiction, particularly the United States and Canada. It refers to the report of the British Wolfenden Committee and the Sexual Offences Act, 1967, by which English law de-criminalized homosexuality. It fortifies its conclusions by the 172nd report of the Law Commission which also took the same view: ‘Section 377 in its present form has to go’.

Many years ago, when my friend Soli Sorabjee was the Attorney General he and I both attended a meeting of the faculty and students at Harvard. I distinctly remember both of us having told our audience that the Indian Government is seriously engaged in deliberations and in all probability the law will be substantially amended and brought into conformity with the new enlightened attitudes in which now pervade world of genetics, crimes and criminology.









The Delhi High Court judgment for which I have already paid my respectful compliments to its scholarly Chief Justice and his companion Judge is substantially based upon the citizen’s right to privacy and a life of dignity. The Court correctly concluded that these rights can only be subordinated to some overriding public interest. Counsel for the Union of India could not point out any and the Court rightly rejected his feeble argument that it is a law which in some remote way promotes public health. The submission was in the teeth of the view of the American Psychiatric Association presented to the United States Supreme Court in 2002 in the case of Lawrence v. Texas :

“According to current scientific and professional understanding, however, the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. Moreover, these patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality”.

Now the view for which the Additional Solicitor General canvassed was the view of the Home Ministry with which the Ministry of Health did not agree. To the best of my knowledge it has never happened that in a public hearing before a High Court two departments of the same Government made conflicting and irreconcilable submissions. I hope before the Supreme Court the Government will put its house in order. I can trust the Attorney General to do so.



What further surprises me, is that the most effective 8th Respondent namely the National Aid Control Organization (NACO) did not seek the assistance of Bentham’s powerful argument which any Court should normally consider almost conclusive. Some one should have done it any way.

Unfortunately homosexuality in India as in many other countries attracts intense antipathy which may well be called Homophobia. In popular language it means fear and dislike of homosexuality and of those who practice it. The word, which may have been coined in the 1960s, was used by K. T. Smith in 1971 in an article entitled “Homophobia: A Tentative Personality Profile. In 1972, George Weinberg’s book ‘Society and the Healthy Homosexual’ defined it as “the dread of being in close quarters with homosexuals.” Mark Freedman added to that definition a description of homophobia as an extreme rage and fear reaction to homosexuals.

It must be emphasized that the Delhi Judgment does not recommend homosexuality or even approve of it. I am revolted by it without denying that all males usually in early adolescence go through a phase of it particularly in societies where the free mingling of the two sexes is taboo. In most cases it is not a free preference but a forced choice when better alternatives are scarce. I am sure my revulsion is shared by the two Judges. But we are sensible enough not to compel others to experience the same feeling or at least put on a false mask. It is obnoxious arrogance to claim that my

conduct is natural and others violative of nature. It is pure tyranny to send others to prison because their tastes are not mine. The Constitution of India does not tolerate such tyranny.

No legislator or ruler can tell those who obey his laws “I am one of the elect, and God takes care to enlighten the elect as to what is good and what is evil. He reveals himself to me and speaks by my mouth. All you who are in doubt, come and receive the Oracle of God;” thus wrote Bentham.

A short reference to the history of homosexuality is called for. During the Greco Roman period, there is ample evidence to show that homosexual behavior between men as well as between women was common - and within clear conventional limits – approved. Literature dealing with the customs of Jews and earlier Christians however, does reflect a general aversion to homosexual behavior which was seen as an emblem of decadent paganism – godless, debauched, and heretical. For both Jews and early Christians, the Old Testament story of the destruction of Sodom became the foundation text of ‘homophobia’, even though neither Jews nor early Christians, including Christ himself, unanimously interpreted it as a text condemning homosexual behavior.

During the next thousand years between the fall of Rome and the beginning of the Renaissance the Roman Catholic Church condemned any nonprocreative act between persons of either sex. Pope Gregory IX called sodomites ‘abominable persons- despised by the world and dreaded by the council of heaven’. In the late 13th



Century the first case of a homosexual being burnt at the stake came to be staged. Even Protestantism was as rigorous in its condemnation.

In the 19th Century homophobia turned into hysteria. Lord Macaulay imported it into India. Homophobia is thus a western product which was unknown to sexually free India. The Delhi High Court can take credit through its judgment that India is going back to its enlightened roots. Oscar Wilde and his boy friend Alfred Douglas had already shocked the Victorian Britishers. They initiated the end of Homophobia.

Our earth is a crowded planet and can not sustain more humans. Semitic religions condemn pederasty because it does not add to the population. Malthusian wisdom which I endorse fully is a credit item in the balance sheet of homosexuality.



( RAM JETHMALANI )