DECRIMINALIZING HOMOSEXUALITY – NECESSITY LONG DUE OR WESTERN EXPORT?

Author: Akanksha Chowdhury, Department of Law, Calcutta University


Homosexuality is the sexual orientation characterized by sexual attraction or romantic love exclusively for people of the same sex. Consequentially, homosexual marriage, sometimes referred to as gay marriage, indicates a marriage between two persons of the same sex[1].

Gay Rights are personal liberties or rights that ensure the LGBTQ+ Community[2] equal enjoyment of life as any other person is entitled to, with as much dignity and integrity as is bestowed upon by the State to its citizens. Gay Rights not only include the right of same-sex marriage but also includes every other Fundamental Right within its ambit.

IS HOMOSEXUALITY UNNATURAL OR OVERLOOKED?

The very concept of Homosexuality has been a subject of intense debate since time immemorial. While several considered same-sex romantic attractions as “against the order of Nature” or “unnatural” the advocates of the other side of the myth reasoned it with disparity. Homosexuality, in most human societies, was abhorred and shunned with a view that it was nothing more than a “psychological disorder”, or worse, “a disease”. It is true that Homosexual individuals were not common in the society, as opposed to the majority of the populace that comprised of heterosexual individuals. Moreover, several such individuals feared to make their sexuality known and preferred hiding their identities in terror of prosecution under the laws framed against homosexuality and the harsh criticism and stigma that followed. However, a significant percentage of individuals encompassed such uncommon sexual orientation that made its recognition more of a necessity.

Same-sex pairing is not only normal in the animal kingdom, it is commonplace. Studies find that about 1500 animal species are known to practice same sex-coupling which gives a vivid picture of homosexuality already prevalent in Nature.

Homosexuality has existed from the time that man began to record history. In both the Old and the New Testaments, the concept of Homosexuality is mentioned, though the same was condemned. The same was in practice even in Britain. India, under the Colonial Rule, couldn’t escape unaffected from the archaic and staunch legal influence of the British. Nevertheless, the existence of laws against Homosexuality clearly portrays the very presence of Homosexual beings in the society.

It is very evident that for lesbians and gay men, it is natural to be attracted towards the same gender. Bisexuals may be attracted to both sexes. To act on these feelings is as much natural as is to act upon any other human instinct. Not to act on these feelings, and forcing oneself to tread on the normative path of common choice would be unnatural, forcing people to hide who they really are and causing them anguish and pain. Hence, if there is anything unnatural, it is to not conform to one’s natural instincts.

Homosexuality being referred to as “unnatural” also comes from the popular belief that marriages are primarily endorsed for procreation of children. It is interesting to however find that many heterosexual marriages are incapable of procreation of children, and many that do are incapable of raising their children with a conducive environment; while many homosexual and transgender couples raise children well. Children raised in these families comment that what is most important in a family is being loved and cared for[3]. Hence, marriages should really be an endorsement of the fact, if at all, that procreation of the children is not as significant as raising them well.

Thus, homosexuality is as natural as Society regards heterosexuality.

SOCIO-LEGAL STATUS OF HOMOSEXUALITY IN INDIA

Interestingly sexuality holds a central position in the Indian Culture, with early Hindu texts and art, heavily charged with sexual symbolism. Some palpable instances of homosexuality can be derived from the carvings of Khajuraho Temples of Madhya Pradesh with women erotically embracing other women and men displaying their genitals to each other, the ‘love science’ or the ‘subtle art of love-making’ called Kamasutra by Vatsyayana, etc. The latter vividly refers to homosexuality in the form of active-passive binary evidences.[4] The Ninth chapter of the Kamasutra of Vatsyayana -- composed in around 4th century BC, talks about oral sexual acts (Auparistaka), and homosexuality and also of similar activities among transgenders (tritiya prakriti). The book, however, does not favour homosexuality of any kind. Epics like Ramayana and Mahabharata give a vibrant peep into the ancient times of India to establish that homosexuality was in prevalence and practice since time immemorial. In Valmiki’s Ramayana, Lord Hanuman is said to have witnessed Rakshasa women kissing and embracing each other. The Purana does not approve of "unnatural offences" but the references prove that they were in practice. The famous law code, Manusmriti provides for punishment to homosexual men and women. Ancient Indian texts, inscriptions and paintings on temple walls, clearly, do not approve of homosexuality, but the repeated references do acknowledge its existence since those days[5], which further proves that the concept of homosexuality, as argued by several, is not a western export.

Homosexuality had been illegal in India since 1860, when British rulers codified a law prohibiting carnal intercourse against the order of nature with any man, woman or animal and declared Homosexual intercourse as a criminal offence, considering it to be unnatural, punishable with Life Imprisonment or with Imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[6]

Post Independence of India, on 26 November, 1949, the Right to Equality was implemented under Article 14 of the Constitution of India. However, Homosexuality remained a Criminal Offence. Decades later, the first known protest for gay rights was organized outside the police headquarters in the ITO area of Delhi in India, on 11 August, 1992, which gave the momentum to LGBTQ+ Rights Movement in India.[7] Kolkata hosted the Kolkata Rainbow Pride Walk (KRPW), the oldest pride parade in India and South Asia with only 15 participants, on 2 July, 1999, also known as Friendship Walk, which gave further impetus to the Pride Movement.[8]

THE SUPREME COURT ON HOMOSEXUALITY

2009 witnessed a landmark Delhi High Court decision that held that treating consensual homosexual intercourse between adults as a crime is a violation of Fundamental Rights protected by India’s Constitution[9], which was overturned in 2014 by the Supreme Court of India and reinstated Section 377 of The Indian Penal Code, 1860. The Supreme Court upheld the Right to Privacy as a fundamental right in 2017 in a landmark judgment which renewed hope in LGBTQ+ activists[10].

Finally, On 6 September, 2018, in the case of Navtej Singh Johar v. Union of India, a five-judge bench of the Supreme Court ruled unanimously that Section 377 was unconstitutional in so far as it criminalizes consensual sexual conduct between adults of the same sex held in private.[11] The Court overruled its decision in Suresh Koushal v. Naz Foundtion that upheld the validity of Section 377 of the Indian Penal Code.

The decision is historic in nature and holds an extremely high precedential value as it has been decided by a five-judge Constitutional Bench of the Supreme Court of India. It establishes a binding precedent on all courts across India and smaller benches of the Supreme Court. Considering that the provision struck down was from the colonial-era legislation and similar provisions still exist in some Commonwealth nations (Singapore, Sri Lanka, Malaysia, Pakistan, Ghana etc.) the decision is likely to hold persuasive value in such jurisdictions too.[12] This landmark judgment was a cry of victory to the age-long struggle of recognition and legalization of Gay Rights in India.

CONCLUSION

The plight of same-sex attraction was more or less weighed with parity within and outside India; criminalization of homosexuality in the world was imposed through Imperial might. However, the legalization of Homosexuality, empowered by provisions of Right to Life, Right to Privacy and Right to Equality, gave a newfound direction to human rights and harmony, and potential of development and growth of the country at large. The existence of same-sex attraction was largely overlooked in India, and hence its legalization cannot be termed as a Western influence. With the advent of Gay Rights, the Country is blessed with a new outlook that gives a clear picture of progress and evolution. Love was celebrated in India in every form once upon a time, and it shall be celebrated now on again.

[1] Anuradha Parasar, Homosexuality in India – The Invisible Conflict, http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf. [2] The term “LGBTQ” is commonly used to refer to persons who are gay, lesbians, bisexual, transgender and/or queer. [3] Myth Busting: LGTB Myths and Facts, VIU Community, https://adm.viu.ca/positive-space/lgtb-myths-facts. [4] Doughlas Malti, Encyclopedia of Sex and Gender, Macmillan Social Science Library, vol.2, p.724. [5] https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446-2018-07-10. [6] Section 377, Chapter 16, Indian Penal Code, 1860. [7]https://www.thehindu.com/society/its-been-a-long-long-time-for-the-lgbtq-rights-movement-in-india/article24408262.ece. [8] https://timesofindia.indiatimes.com/city/kolkata/city-of-joy-opened-the-closet-with-countrys-first-pride-walk/articleshow/65714875.cms. [9] Naz Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1 (DB) : (2009) 160 DLT 277. [10] K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1. [11] Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1. [12]Navtej Singh Johar v. Union of India – Case Analysis, Global Freedom of Expression, Columbia University, https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/#:~:text=Case%20Summary%20and%20Outcome&text=The%20petition%2C%20filed%20by%20dancer,dignity%20and%20protection%20from%20discrimination.

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