Homosexuality In India

ABSTRACT

Sexuality is about sexual feelings, thoughts, attractions and behaviours towards other people, now it can be towards someone of same sex (i.e. gay or lesbian) or opposite sex (i.e. heterosexual) or both same sex and opposite sex (i.e bisexual). This article specifically revolves around Homosexuality in India. Homosexuality is the term used to define the state where any person sexually attracted towards the person of his/her own sex. 

This article talks about the history of homosexuality and discussed the traces of homosexuality in ancient and modern history. In this article, the author also throws light on suffering of the people being a homosexual. Homosexuality was once a criminal offence; this article also highlights the major events took place for decriminalizing Article 377 of IPC. At the end, this article emerges out with the clear vision and answers the questions like What is Homosexuality? How the homosexuals exist in the present world? how the homosexual people are discriminated? And how the homosexuality decriminalized? 

Keyword: Homosexual, Gay, Lesbian, Discrimination.

INTRODUCTION

The most incredible thing in the world is to love someone and this love is not just limited between male and female, it could be between male-male or female-female. Yes, these people are called homosexuals. Homosexuality is romantic attraction, sexual attraction, or sexual behavior between the members of the same sex or gender[i]. This type of sexual behavior is first been called unnatural and then illegal by the apex courts of various countries.
This homosexuality is something which is as normal as heterosexuals and now govt. too adapting this ideology by decriminalizing homosexuality due to the continuous efforts of many organisations, politicians and the homosexual people who came forward with courage.
Though law is now in support of gay/lesbians but people are not. Their outdated thinking does not let people think or act differently, they are imprisoned by their own thoughts. Because of which gay or lesbian people are not getting that position in the society which they deserve to be. Far from the support, the society forcefully imposes their norms and tries unsuccessfully to change them.

HISTORY OF HOMOSEXUALITY

Homosexuality is not a remote term, it was earlier discussed in the ancient Indian text Kamasutra written by Vātsyāyana. Also in Rigveda, one of the four sacred texts of Hinduism says Vikriti Evam Prakriti (meaning what seems unnatural is also natural),[ii] some veteran personalities said, it refers to the homosexual behavior of the human being. Indian stories like Ramayana, Mahabharata and even sanctuaries of Khajuraho give enough peep into old occasions of India to build up that homosexuality was by and by.
In Temple of Khajuraho there are Image of women erotically embracing other women & men displaying their genital to each other. In the Valmiki Ramayana, Lord Rama’s devotee and companion Hanuman is said to have seen Rakshasa women kissing & embracing other women.[iii]
In the British Colonial Period (1858-1957 CE), britishers criminalized homosexuality under section 377 of Indian Penal Code by considering it “against the order of nature” which came into force in 1861.

JUDICIAL SCRUTINY

  • Naz Foundation v National Capital Territory of Delhi[iv]:(2nd july,2009) In this case the high court of Delhi have stuck downed Much of S.377 of the IPC as unconstitutional. It was held that consensual non-vaginal sexual acts between adults violates fundamental rights viz. equality before the law, freedom from discrimination and life and personal liberty under article 14, 15 and 21 of the constitution of India respectively. The court held the section as legit in case on non-consensual non-vaginal intercourse or to intercourse with minors.
  • [v]Suresh Kumar Koushal and another v. NAZ Foundation and others[vi] (Dec. 11, 2013) The supreme court of India overturned the 2009 judgment of Delhi High court taken in the case of Naz Foundation v. Govt. of NCT of Delhi and recriminalized the sec. 377 of IPC by stating sexual intercourse “against the order of nature”. Supreme court bench consists of justices G. S. Singhvi and S. J. Mukhopadhaya upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offense.[vii]
  •  The Supreme Court dismissed the review petition on 28th January, 2015 filed by Central Government, Naz Foundation and several others, against its 11 December judgment on Section 377 of IPC.[viii]
  • Shashi Tharoor, member of Indian National congress on 18th Dec. 2015 brought a private member bill for the decriminalization of Sec. 377 in the Lok Sabha. But it was rejected by the house by the vote of 71-24 with one abstention. [ix]
  •  Tharoor on 12th march 2016, again introduced private members bill to decriminalize Sec. 377 of IPC, yet again defeated by the vote of 58-14 with one abstention. [x]
  •  Sushma Swaraj, Minister of External Affairs on 26th August, 2016, announced draft law for the ban of commercial surrogacy and restrain homosexuals from having surrogate children by stating "We do not recognise live-in and homosexual relationships ... this is against our ethos"[xi]
  •  On 10th July 2018, Justice DY Chandrachud in the proceedings of the court held that Choosing a Partner is every person's Fundamental Right. The SC uphold the importance of LGBT rights. 
  • Navtej Singh Johar v. Union of India[xii] (6th,September 2018) An Historic decision taken by the SC which decriminalizes part of Sec. 377 of Indian Penal Code, a British-era provision, criminalising consensual homosexual activities. Criminalising unnatural sex with minors and animals will still remain in force after this judgement.[xiii]

ACCEPTABILITY OF HOMOSEXUALS IN SOCIETY

Yes, now being a homosexual is no more a crime, now like other countries India too enlisted in the category of decriminalizing Homosexuality, now the court has understood the importance of the rights of LGBTQ people. It seems like all the things are in the favour of homosexual people, it feels like they would be treated as the other heterosexual people. But wait, we live in the country like India.
Though the court decriminalized homosexuality but the people of the society have not accepted it whole heartedly. The Society still hesitates to include those people; they still see this as a disease or any sexual problem. Due to which homosexuals have to suffer discrimination based on their sexuality.
Someone who provides goods, facilities and services would be discriminating in ways like refused to sell you something, did not allow you to use a service, provided you with worse or more expensive goods or services than someone with a different sexual orientation, behave in a rude or hostile way. These include organisations like clubs, shops, restaurants, hotels, hospitals, churches, transports etc. The most cases of discrimination come up at workplace, in employment and training.
India is a developing country and its people are also in developing state. We Indians take time, but understand the importance of the thing. Now homosexual people are willingly coming forward and revealing their identity; Dutee Chand, a 23-year-old athlete who is country’s fastest sprinter, became the country’s first athlete to openly come out as lesbian. Like her many other Indians also leaving their fear behind and coming forward to claim their position in the society with their own identity.

CONCLUSION

Everyone should be able to feel proud of who they are and who they love. No one should be hated because of his/her nature. Being homosexual is not an option, it is a natural phenomenon and it is redundant to change the nature.
Even after getting legally recognized by laws, there are majority of LGBT people who face discrimination, harassment and what not by the society. The society have accepted the law regarding LGBT people but have not accepted the LGBT people. The most important task is to educate the people and raise public awareness about sexual minorities. Homosexuals also deserve one of the most important right i.e Right to Equality and we need to make people aware of it. The court has done its work by giving its judgment in the case of Navtej Singh Johar V. Union of India and decriminalized homosexuality, now it’s our turn to respect the judgment and also respect the people associate with it.


[i] "Definitions Related to Sexual Orientation and Gender Diversity in APA Documents" (PDF). American Psychological Association. 2015. p. 6.
[ii] Stephen Hunt; Andrew K. T. Yip (1 December 2012). The Ashgate Research Companion to Contemporary Religion and Sexuality. Ashgate Publishing, Ltd. p. 368. ISBN 978-1-4094-7225-4.
[iii] Ruth Vanita and SaleemKidwai, “Same-Sex Love in India: A Literary History”,Palgrave Macmillan US,2000;46 
[iv] Naz Foundation v National Capital Territory of Delhi 160 Delhi Law Times 277
[v] Yuvraj Joshi (21 July 2009). "A New Law for India's Sexual Minorities". The Guardian. London.
[vi] Suresh Kumar Koushal and another v. NAZ Foundation and others, Civil Appeal No. 10972 OF 2013
[vii] "Homosexuality is criminal offense: Supreme court". The Economic Times. 11 December 2013.
[viii] "SC Dismisses Homosexuality Review Plea". The New Indian Express. 28 January 2014.
[ix] "Shashi Tharoor's bill to decriminalise homosexuality defeated in Lok Sabha". The Indian Express. 18 December 2015.
[x] "Lok Sabha votes against Shashi Tharoor's bill to decriminalise homosexuality. Again". The Indian Express. 12 March 2016.
[xi] "India proposes commercial surrogacy ban; live-ins, homosexuals worst hit". hindustantimes. 24 August 2016.
[xii] Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
[xiii] Rautray, Samanwaya (6 September 2018). "Section 377: SC rewrites history, homosexual behaviour no longer a crime". The Economic Times.
Image credits
This article is authored by Mr. Ayush Mogre, student of Indore Institute of Law. 

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