Homosexuality: Debating Issues in The Light of Indian Legal and Social System

Abstract

The topic of my research work is centered on the most controversial and stigmatized term ‘homosexuality.’ To introduce homosexuality is romantic or sexual attraction or behavior among the people of the same sex. As a sexual orientation, homosexuality refers to an enduring pattern or disposition to experience sexual affection or romantic attractions primarily to people of the same sex. It also refers to an individual’s sense of personal and social identity based on those attractions, behavior expressing them, and membership in a community of others who share them.

The common term used for homosexuals are ‘gays’, ‘lesbians’, ‘bisexuals’ , or ‘transgender’ and collectively known as LGBT people. Homosexuality which is believed to be of western origin and culture has swept in India past a decade, with a striking force on our Indian society and culture. Homosexuality is considered as a taboo subject, by both Indian civil society as well as our legal system. Public discussion of homosexuality has been inhibited by the fact that sexuality in any form is rarely discussed openly in our country.

Attitude towards homosexuality is overwhelmingly negative, however it is a starke reality that homosexual behaviour has always existed in India, sometimes in the form which is culturally sanctioned such as, the Hijras, and other times in invisibility and silence. Section 377 of Indian penal code, 1860 penalizes homosexual acts (both consensual and non-consensual). Many celebrities, both national and international, have also stood by the side of homosexuals when it came to supporting them for their basic and fundamental rights.

Introduction

Lesbian, gay, bisexual and transgender people are more likely to experience intolerance, discrimination, harassment, and the threat of violence due to their sexual orientation, than those that identify themselves as heterosexual. This is due to homophobia (the fear or hatred of homosexuality). Some of the factors that may reinforce homophobia on a larger scale are moral, religious, and political beliefs of a dominant group. In some countries, homosexuality is illegal and punishable by fines, imprisonment, life imprisonment and even the death penalty.

Human sexuality is diversely experienced, and can be fixed or fluid. Male/female sexuality is blurred further with the existence of transgender, transsexual and intersex identified people. Heterosexuality should no longer be assumed; this assumption is called heterosexism. Although many societies have made significant strides in human rights advocacy, LGBT rights struggle to find universal acceptance.

The fact that the Universal Declaration for Human Rights, drafted in 1948, does not specifically include sexual orientation allows some people to consider LGBT rights debatable. Influential international human rights organizations such as Amnesty International and Human Rights Watch continue to run effective campaigns. In the coming years the major issues for LGBT rights on a global scale will be: eradicating persecution based on sexual orientation; protection in the law from hate crimes and hate propaganda; equal rights and privileges (marriage, common law partnerships, medical-decision making, wills and estates, parenting and adoption) and to work and educate others on homophobia and heterosexism.They are singled out for physical attack – beaten, sexually assaulted, tortured and killed. And in some 76 countries, discriminatory laws criminalize private, consensual same-sex relationships – exposing individuals to the risk of arrest, prosecution, imprisonment — even, in at least five countries, the death penalty.

Concept of LGBT

LGBT is an initialize that stands for lesbian, gay, bisexual, and transgender. The initialize LGBT is intended to emphasize a diversity of sexuality and gender identity-based cultures and is sometimes used to refer to anyone who is non-heterosexual or non cisgender instead of exclusively to people who are lesbian, gay, bisexual, or transgender. To recognize this inclusion, a popular variant adds the letter Q for those who identify as queer and/or are questioning their sexual identity as LGBTQ, recorded since 1996. Whether or not LGBT people openly identify themselves may depend on whether they live in a discriminatory environment, as well as the status ofLGBT rights where one lives. Before the sexual revolution of the 1960s, there was no common non-derogatory vocabulary for non heterosexuality; the closest such term, 'third gender', traces back to the 1860s but never gained wide acceptance in the United States.

The first widely used term, homosexual, was thought to carry negative connotations and tended to be replaced by homophile in the 1950s and 1960s, and subsequently gay in the 1970s. As lesbians forged more public identities, the phrase 'gay and lesbian' became more common.Lesbians who held a more essentialist view that they had been born homosexual and used the descriptor 'lesbian' to define sexual attraction, often consideredthe separatist, angry opinions of lesbian feminists to be detrimental to the cause of gay rights. This was soon followed by bisexual and transgender people also seeking recognition as legitimate categories within the larger community.

Societal attitudes toward homosexuality

Societal attitudes toward homosexuality vary greatly across different cultures and historical periods, as do attitudes toward sexual desire, activity and relationships in general. All cultures have their own values regarding appropriate and inappropriate sexuality; some sanction same-sex love and sexuality, while others may disapprove of such activities in part. As with heterosexual behaviour, different sets of prescriptions and proscriptions may be given to individuals according to their gender, age, social status or social class.

Many of the world's cultures have, in the past, considered procreative sex within a recognized relationship to be a sexual norm — sometimes exclusively so, and sometimes alongside norms of same-sex love, whether passionate, intimate or sexual. Some sects within some religions, especially those influenced by the Abrahamic tradition, have censured homosexual acts and relationships at various times, in some cases implementing severe punishments. Homophobic attitudes in society can manifest themselves in the form of anti-LGBT discrimination, opposition to LGBT rights, anti-LGBT hate speech, and violence against LGBT people.

Since the 1970s, much of the world has become more accepting of homosexual acts and relationships. A 2017 book by Professor Amy Adamczyk based on years of mixed methods research, shows that these cross-national differences in acceptance can be explained by three factors: the strength of democratic institutions, the level of economic development, and the religious context of the places where people live.

The Pew Research Center's 2013 Global Attitudes Survey 'finds broad acceptance of homosexuality in North America, the European Union, and much of Latin America, but equally widespread rejection in predominantly Muslim nations and in Africa, as well as in parts of Asia and in Russia'. The survey also finds 'acceptance of homosexuality is particularly widespread in countries where religion is less central in people's lives. These are also among the richest countries in the world. In contrast, in poorer countries with high levels of religiosity, few believe homosexuality should be accepted by society. Age is also a factor in several countries, with younger respondents offering far more tolerant views than older ones. And while gender differences are not prevalent, in those countries where they are, women are consistently more accepting of homosexuality than men.

About Section 377

Section 377 of the IPC deals with 'unnatural offences,' and holds 'whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.'

Timeline of Section 377:

• 1861: The year Section 377 was introduced

Section 377 was introduced by British India during the Pre-Independence era which was modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. The section defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality, and homosexuality, in a broader sense.

• Jump to 2001: Naz Foundation filed a petition against Section 377 in Delhi High Court

Over the course of time and years, Section 377 had sparked numerous controversies with activists challenging it in various ways. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court as the law was pre-dated and not valid in the 21st century. They filed a lawsuit to allow homosexual relations between consenting adults.

• 2003: Delhi HC dismisses Naz Foundation plea

The Delhi High Court in the year 2003 dismissed the petition filed by Naz Foundation which was seeking a ban on Section 377. The High Court back then said that the body had no standing in the matter. The Naz Foundation took the appeal further before apex court of the country to dismiss the hearing. The Supreme Court thereby instructed the Delhi High Court to reconsider the case.

• 2009: In an iconic judgment Delhi High Court decriminalised homosexuality

In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India. This decision was welcomed by activists and people of the LGBTQ community.

• 2012: Supreme Court overturns Delhi HC order

Post the Delhi High Court's historic judgment, various appeals were made before the Supreme Court, challenging the High Court’s authority to change the law. Three years after the Delhi High Court's iconic decision in December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising of Justice G S Singhvi and Justice S J Mukhopadhaya observed that the Delhi HC had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section.

The Supreme Court then recommended that the Parliament addresses the matter because only they had the power to amend the existing laws and bring about a new law in the country.

• 2015: Shashi Tharoor’s Private Member Bill was voted against in the Parliament

After the 2014 Lok Sabha elections, the Narendra Modi-led government was sworn-in. They said that they would take a decision regarding Section 377 only after the Supreme Court's judgment. In a written reply addressing to the Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Supreme Court.”

A year later, when Member of Parliament Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality, the Lok Sabha voted against it.

• 2016: Five petitioners move to SC seeking justice over Section 377

Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur before the apex court. The petition, all of which were filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” The 5 men and women who challenged a ban on homosexuality were all from different walks of life.

• 2018: A dawn of new era for Section 377 and LGBTQ community

In the year 2018, the apex court began the hearing of the cases and petitions files on Section 377. A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, began hearing petitions challenging Section 377 and seeking decriminalisation of the same.

United Nations India lauded the Supreme Court's decision for striking down a 'key component' of IPC's Section 377 which criminalises 'specific sexual acts between adults' and said the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons. It also hoped the ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.

Bollywood celebrities such as Karan Johar, Sonam Kapoor, Farhan Akhtar and director Hansal Mehta amongst others have welcomed the Supreme Court's judgment on legalising homosexuality. Here's how the Supreme Court's move was welcomed by people from all walks of life:

The road to decrimnalisation of homosexuality in India

In a landmark decision, the supreme court has finally struck down a 19th century law criminalising homosexuality in India.

A bench consisting of chief justice Dipak Misra and justices DY Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman began hearing petitions against section 377 of the Indian Penal Code in July this year. On Sept. 06, in a unanimous verdict, the court ruled that homosexuality is no longer a crime in India, and that the members of LGBTQ community have the same sexual rights as any other citizen.

“Section 377, to the extent it criminalises sexual acts between consenting adults, whether homosexual or heterosexual, is unconstitutional,” chief justice Misra and justice Khanwilkar said in their judgment.

The decision follows a protracted struggle by activists and members of the community against the repressive law, introduced in 1861 when India was under British rule. It threatened imprisonment, even a lifetime sentence, and a fine for those who engaged in what it labeled as “unnatural offences” or intercourse “against the order of nature.”

Here’s a timeline of the battle against section 377 in India, which began over 20 years ago:

• November-December 1991: A document detailing the experiences of gay people in India is released by the AIDS Bhedbhav Virodhi Andolan (ABVA), an organisation fighting discrimination against those affected by HIV or AIDS. The 70-page report reveals the shocking extent of blackmail, extortion, and violence that gay people faced, especially at the hands of the police.
• The report calls for the repeal of legislation that discriminates against members of the LGBTQ community, including section 377. But when released at the Press Club of India, journalists are reportedly so embarrassed they don’t raise a single question.
• May 1994: Controversy erupts after Kiran Bedi, inspector general of the Tihar jail in Delhi, refuses to provide condoms (pdf) for inmates, saying it would encourage homosexuality, besides admitting that inmates indulge in it. In response, ABVA files a writ petition in the Delhi high court, demanding that free condoms be provided and that section 377 be recognised as unconstitutional. Despite long-running efforts to mobilise support, the petition is eventually dismissed in 2001.
• December 2001: The Naz Foundation, a sexual health NGO working with gay men, files a public interest litigation (PIL) in the Delhi high court, challenging the constitutionality of section 377 and calling for the legalisation of homosexuality.
• September 2004: The Delhi high court dismisses the case, saying there is no cause of action and that purely academic issues cannot not be examined by the court. A review petition filed by the Naz Foundation is also dismissed a few months later.
• February 2006: After the Naz Foundation files a special leave petition for the case, the supreme court reinstates it in the Delhi high court, citing the fact that it is an issue of public interest. In the coming months, Voices Against 377, a coalition of NGOs, joins the petition, while India’s ministry of home affairs files an affidavit against the decriminalisation of homosexuality.
• July 2009: In a landmark judgment, a Delhi high court bench consisting of chief justice Ajit Prakash Shah and justice S Muralidhar decides to strike down section 377, saying it violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution. But critics, including Suresh Kumar Koushal, a Delhi-based astrologer, challenge the Delhi high court’s decision in the supreme court.
• December 2013: The LGBTQ community suffers a significant blow when the supreme court overturns the Delhi high court’s judgment, saying section 377 “does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.”
• June 2016: Navtej Singh Johar, an award-winning Bharatanatyam dancer, files a writ petition in the supreme court challenging section 377, along with four other high-profile Indians, including chef Ritu Dalmia and hotelier Aman Nath.
• August 2017: A nine-judge supreme court bench hearing petitions against India’s biometric programme Aadhaar unanimously rules that privacy is a fundamental right. In its judgment, the court also says, “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” raising the hopes of those campaigning against section 377.
• April 2018: Top hotelier Keshav Suri, who identifies as gay, joins the fight, files a petition with the supreme court.
• July 2018: A five-judge bench of the supreme court, including chief justice Dipak Misra, begins hearing the petitions filed by Johar and others against section 377. While supporters of the law claim the spread of sexually transmitted diseases and the disintegration of India’s social fabric as reasons to retain it, many of the justices make encouraging comments. “It is not an aberration but a variation,” justice Indu Malhotra says. A central government affidavit leaves the decision on the section’s constitutionality to the court’s wisdom. The supreme court decides to reserve its verdict.
• September 2018: In a unanimous verdict, the supreme court decides to scrap section 377, which chief justice Misra describes as ”irrational, indefensible and manifestly arbitrary,” marking a triumphant end to a lengthy struggle for justice.

Conclusion

Despite a much liberal history of thousands years of tolerance towards sexual minorities the harsh reality of modern day is a tremendous homophobic Indian society and a considerable portion of people who belongs to that LGBT community lives under immense stress because of society’s constant pressure and criticism.

The present study shows, bisexuals quite successfully blends into the society and lives a traditional heterosexual life with spouse and kids and meanwhile lesbians and gays struggle a lot to live a life of their own choice. Therefore stress related health issues are quite common among lesbians and gays. Under such circumstances only positive aspect is financial independence which gives them a negotiable status and the present study reveals financially independent LGBT participants gets more support from their family members and often their families allows them to live lives according to their wish.

However the present study was conducted on four metro cities of India (Delhi, Mumbai, Kolkata and Chennai) and among mostly educated middle-class individuals. Therefore to contemplate the entire scenario more meticulously further pan India base studies is extremely necessary and at the same time the changes in the legal and social front is also extremely important.