• Kakoli Nath

OVERVIEW- HOMOSEXUALITY IN INDIA

INTRODUCTION



Homosexuality is the practice of having sexual attraction towards the group of members of the same sex. This kind of sexuality is often considered as a taboo in many countries around the world.

‘Marriages are made in heaven” this phrase which has been used time and again means  two individuals decide to spend the rest of their lives together, they often legalize their relationship by entering into marriage.



But this legal recognition in many countries is only usually given to the couples of different sexes thus contradicting the above phrase. Nevertheless, many countries and nations have brought about changes in their legislations, acknowledging an individual’s personal choice and freedom in choosing his/her partner, by giving legal status to same sex marriages.

HOMESEXUAL RIGHTS IN INDIA



In India the concept of homosexuality has been from generations considered as an offensive relationship.  Marriage is considered to be a holy sacrament by Hindus, and union between persons of the same sex has been considered to be morally wrong and inappropriate. Since marriage is seen mostly from a religious angle, a gay marriage is presumed to be unholy and against God himself.  



Many Indians believed that the concept of same sex unions has been brought by the Western countries, and it is this bad Western influence on the Indians that is leading to their rise. However, homosexuality is not just a concept devised by the West, but instances of homosexuality can be found in our ancient literatures and scriptures, which proves that the concept was prevalent in our society since ancient time. Rigveda, one of the four canonical sacred texts of Hinduism says ‘Vikriti Evam Prakriti’ (what seems un-natural is also natural).

In contrast to U.S.A , the scenario of Gay rights in India is very bleak or we can also say non-existent. Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. So, there is no question for other rights like marriage, adoption etc. to exist in such a scenario.


MARRIAGE UNDER DIFFERENT PERSONAL LAWS IN INDIA


In India, citizens have a choice to be married under their various personal laws, or a common law of civil marriage. While none of the acts have openly defined marriage as a union between a man and a woman, it simply means that a marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex.



The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists. Section 5 of this Act says that a marriage may be solemnized between any two Hindus, if the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage.



Also, Section 60 of the Indian Christian Marriage Act, 1872, lays down that the age of man intending to be married shall not be under twenty- one years, and the age of woman intending to be married shall not be under eighteen years. Thus, both these legislations have heterosexist foundation. In the case of Muslims, they are governed by Islamic Law itself, rather than any codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of marriage is to legalize sexual relations between a man and a woman, for the reproduction of children .



The Special Marriage Act, 1954, allows for marriages between individuals from different religions and castes. While no separate definition of marriage is given, the Act also has heterosexist ideals, such as the definition of a ‘prohibited relationship’ which only considers a relationship between a man and a woman within certain degrees of familial relations.

Thus, India does not have any legislation that legalises same sex marriages. 


SECTION 377 OF THE INDIAN PENAL CODE, 1860



Section 377 of the Indian Penal Code was passed during the British era in India in 1860. Section 377 created an offence of voluntarily having carnal intercourse “against the order of nature” with any man, woman or animal, punishable by up to ten years imprisonment or a fine. The section seems unbiased in that it criminalizes certain sexual acts and not people and their identities.



This section gave importance to only heterosexuality thus criminalising adult consensual same sex practice. The fight against section 377 has been going on since 2001 before the courts. It started with the petition by Naz Foundation before the High Court of Delhi.


NAZ FOUNDATION V. GOVT. OF NCT OF DELHI


The Naz Foundation in 2009 argued that criminalisation of  same sex relations was against Constitutional rights to life and personal liberty, equality before the law and should be decriminalized.



The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class



Article 15 of the Constitution outlaws discrimination based on certain characteristics, which includes sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15.  



The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is a hindrance to public health because it hinders HIV-prevention efforts. The Court did not abrogate Section 377 completely. The section was confirmed unconstitutional in so far it criminalises consensual sexual acts of adults in private. The Court concluded that:



Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It disproportionately affects them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution”.



SURESH KUMAR KOUSHAL V. NAZ FOUNDATION



The Supreme Court, in this case, overturned the judgment of the Delhi High Court and said that Section 377 does not violate the constitution and is therefore valid. The Supreme Court supported its judgment on various grounds.


First, it held that all laws enacted by Parliament are alleged to be valid under the Constitution. That is, in order to hold a law to be invalid, it must be shown, through evidence, that the law is violating the Constitution. The Supreme Court held that there is not enough evidence to show that S.377 IPC is invalid under the Constitution. The Court held that there is very little evidence to show that the provision is being misused by the police..


According to the Supreme Court, the law can be implemented without misuse. It was also argued before the Supreme Court that because S.377 applies to certain sexual conduct, it essentially means that all forms of sexual expression by LGBT people would be unnatural. This would mean that any sexual conduct by such people would be illegal. Therefore, S.377 prohibits all sexual expression of LGBT persons.



The Supreme Court did not agree with this argument and held that S.377 speaks only of sexual acts and does not speak about sexual orientation or gender identity. This would mean that even heterosexuals indulging in acts covered under S.377 would be punished. Therefore, the section does not aim LGBT persons as a class.



Further, the Supreme Court held that the Delhi High Court in its apprehension and public pressure to uphold the rights of LGBT persons had relied on cases from other countries. They are of the opinion that cases from other countries cannot be directly used in the context of India. Therefore, important cases from South Africa, Fiji, Nepal, USA etc. where homosexuality was decriminalized was not taken into account by the Supreme Court.



CRITICISMS OF SC JUDGMENT


The Supreme Court believed that the LGBTQ community was tiny to care for. But it was argued by many that the size of the community was irrelevant with the fact of harassment and violation of their constitutional rights.



Thus, the Supreme Court’s judgement was received with wide spread protests from all over the nation which also included people who did not belong from the LGBTQ community.

The Supreme Court had also failed in understanding the scale of misuse of S.377 by the police against people of the LGBT persons. However, this is wrong because it does not include the number of police complaints, arrests or harassment on the basis of this Section. There are several well-known instances of abuse and harassment by the police which the Supreme Court fails to consider.



Even after being apprised of the various developments related to LGBTQ rights around the world like UK and USA the Supreme Court seems to have ignored such landmark foreign decisions.



The Supreme Court held that the law applies only to certain acts and not to the identities of people. However, this is immoral because it means that for members of the LGBT community, any way in which they could express themselves sexually becomes a criminal act. This is not so for heterosexual people who can have sexual intercourse without violating the law

The Supreme Court held that the law is supposed to be changed by Parliament and not the Court. However, the Supreme Court was never asked to change the law! It is the duty of the Court to restrict or strike down a law which is against the Constitution. The Supreme Court failed to do what was morally correct for the society at large.



NAVTEJ SINGH JOHAR VS UNIOUN OF INDIA



The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.



The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377), insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional. With this, the Court overruled its decision in Suresh Koushal v. Naz Foundation that had upheld the constitutionality of Section 377.


The Court relied upon its decision in National Legal Services Authority v. Union of India (( National Legal Services Authority v. Union of India, (2014) 5 SCC 438 )) to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity The Court relied upon its decision in K.S. Puttaswamy v. Union of India and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” and if it continues to be on the statute books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)” The Court confirmed that that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state” and sodomy laws violate the right to equality under Art. 14 and Art. 15 of the Constitution by targeting a segment of the population for their sexual orientation.


Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm that an adult’s right to “choose a life partner of his/her choice” is a facet of individual liberty.



Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “constitutional morality would prevail over social morality” to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.

J. Nariman in his opinion analysed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone” there was no reason for the continuance of the law. He concluded his opinion by imposing an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society.



He also directed government and police officials to be sensitized to the plight of the community so as to ensure favourable treatment for them.

J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect was to efface identities” of the LGBT community. He stated that, if Section 377 continues to prevail, the LGBT community will be marginalized from health services and the “prevalence of HIV will exacerbate”. He stated that not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community “equal citizenship in all its manifestations”



J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality” She stated that the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy” She concluded her opinion by stating that history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.



SAME SEX RELATIONSHIPS IN INDIA AND AROUND THE WORLD



Netherlands was the first country in the world to legalise same sex marriages, way back in 2001. In Belgium and Spain, such unions got legal recognition in the years 2003 and 2005, respectively. Canada legalised same sex unions in 2005, South Africa in 2006, and Norway in 2009. The year 2010 saw Portugal, Iceland and Mexico legalising gay marriages, and since 2012, Denmark and Caribbean Netherlands gave it the legal nod. Since 2013, New Zealand, France, Brazil and Uruguay have also legalised same sex unions.



In India, same sex marriages have not been legalised, however few celebrities have entered into same sex civil partnerships. Designer Wendell Rodricks, entered into a civil partnership (as civil partnerships are allowed in France) with his French partner Jerome Marrel, conducted under French law in Goa. Writer Vikram Seth has openly admitted the truth about his sexual orientation, calling himself gay. Prince Manvendra Kumar Singh Gohil, from the royal family of the former princely state of Rajpipla in India, is the only known person of royal lineage in modern India to have publicly revealed that he is gay.



CONCLUSION



Indians are not ignorant to homosexuals but they don’t feel free to discuss about reservation of homosexuality and the mindset of Indian people still remains. Young people understand the feelings of LGBT people but not the old generation people. Most of the times homosexuals and their behaviour are termed as unexpected. Just because homosexuality is not widely practised in India does not mean it is not normal. Just because it is not common does not mean it should be condemned. India is a developing country and only progressive laws will boost the growth and development in the country.


Homosexuality remain a taboo International as long as people are willing to throw it under the carpet of nothingness and 10% of Indian population consists of LGBT people in than transgender people are only the hormonal problem not the others and the suggestion is that government should pass a legislation for marriage of LGBT people and the government has to take remedial actions for them otherwise those people will suffer a lot of exploitation from the people.



Even though recent judgement had protected LGBTQ rights to a great extent but still there is a lot of scope for improvement from the governments side and also in the  mindsets of the people. The world must evolve in its conservative thinking and help these  minority groups from facing damage to self-esteem and self-respect.

-SUBMITTED BY-

Aishwarya Shankar

Amity Law School, Noida

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