This Article is submitted by –
- Akansha Jain
In the case of Shoukatali Idrismiya Raeen vs The State Of Maharashtra[1], a man murdered his queer male friend by stabbing him thrice and used the defence that the deceased was compelling him to perform ‘unnatural sex’ and assaulted him with the motive of same.”[2] The Bombay High Court had previously struck down the conviction of murder and the sentence of life imprisonment. He was held guilty of the lesser charge of culpable homicide. It was after seven years, in 2018 in which he was convicted for murder. The defence used by the him is called ‘gay panic defence’.
The term ‘gay panic defence’ is a legal defence, rather, a strategy in which the defendants claim that they acted violently ,or, and, in a state of insanity, committed an assault or homicide in order to protect themselves from same gender sexual advances made by the said plaintiff.
Background
The expression rose to fame in the early 1960s in the United States so as to ensure a lesser degree of punishments where people charged with manslaughter, who intentionally targeted and killed homosexuals, instead of charging them with murder. However, the strategy was not always very successful as the courts became more and more aware of the greyness of the contention and in the present day several legislative bans are imposed on the gay panic defence in a number of states including Washington, Texas, Minnesota and others ,and recently the Equality Act was in established in 2019 which also aimed towards denouncing the usage of this defence at a federal level.
What do the laws relating to Gay Panic Defence in India say?
In India, the defence is intertwined with Article 21 of the Constitution which guarantees a fundamental right to life and personal liberty and Section 100 (4) of the Indian Penal Code which states that the right to private defence applies to the extent of causing death of the perpetrator if he committed an assault with the intention of gratifying unnatural lust.
It becomes very difficult to locate where this legal strategy has been used maliciously in the courts of India as there is barely any legal provision which specifically states or gives a scope to prove the innocence of the alleged assaulter. The Transgender Persons (Protection of Rights) Act, 2019 Section 18 (d) states that an offense which endangers the life of a transgender person shall bring a liability with respect to the minimum of six months and maximum of two years punishment only.
In a situation where a transgender person is murdered and the defendant claims that the deceased was making sexual advances towards him, the focus shifts from proving whether the accused had committed the crime. Instead, the case becomes a question regarding the sexual orientation of ‘alleged molester’. Thus, it becomes necessary to modify laws with respect to the evolution in society in order to give an equitable stance to all then citizens of the country, irrespective of their sex, gender and sexual orientation.
Section 377 and more: A breakthrough
It has been two years since the landmark judgement of Navtej Singh Johar v Union of India was delivered which read down Section 377, decriminalising consensual sex among adults which includes homosexuals. However, there are still innumerable problems faced by the queer community and facing hostility is one of them. Homophobia still exists in the country and people have subconscious biases that will only go with time, education and spreading awareness.
The judgement supplementary to the Puttaswamy[3] case is a landmark achievement wherein the Right to Privacy has been recognised as a fundamental right under Article 21. This also means that people are entitled to their sexual preference without the State being a role maker in it. Therefore any law that discriminates, or disadvantages people on this ground; or any legal defence that seeks to protect the perpetrator on this ground is not valid.
The LGBT Bar of the United States defines the term as “a legal strategy which asks a jury to find that a victim’s sexual orientation or gender identity is to be blamed for the defendant’s violent reaction, including murder”[4] Similarly in India, the defence counsel in such cases make it point to overshadow the facts of the case with the veil of such legal strategy as in the case of Shaukatali.
Conclusion
With a population of 2.5 million people of India being a part of the queer community, gender equality in all aspects including in criminal law is an absolute necessity. India has been a land of severe discriminations, be it race, gender or caste. Prejudicing on the basis of one’s sexual orientation would only be another one of them, and thus action is needed to prevent injustice from occurring.
The recent developments in law and changing mindset of society should be taken into account. It can be said to have been brought about by westernisation of the society, greater exposure to education across the spectrum and social media. People getting a voice to express themselves is a theme in the 21st century, but that voice is not of any use if it does not bring meaningful change in ways that impact people. Any society that stops cultural evolution and amalgamation is bound to stagnate and wither away. Let us embrace the changes, in order that communal harmony is utilised for the greater good of us all.
“The views of the authors are personal“
Reference-
[1] Shoukatali Idrismiya Raeen vs The State Of Maharashtra (2018) SCC OnLine Bom 2635 (India).
[2] Shibu Thomas, Bombay HC accepts ‘gay panic defence’, reduces murder term of city man, THE TIMES OF INDIA (Aug. 24, 2018, 10:51 pm), https://timesofindia.indiatimes.com/city/mumbai/bombay-high-court-accepts-gay-panic-defence-reduces-murder-term-of-city-man/articleshow/65523280.cms
[3] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. (2017) 10 SCC 1 (India).
[4] “Gay and Trans ‘Panic’ Defense.” Gay and Trans “Panic” Defense, The National LGBT Bar Ass’n, 2019, lgbtbar.org/programs/advocacy/gay-trans-panic-defense/.
