At stake is the human right to be different, the right to recognition of different pathways to sexuality, a right to immunity from the oppressive and repressive labeling of despised sexuality.
- Upendra Baxi, in his foreword to the recently released People’s Union of Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, 2003.
Homosexuals are as normal as ‘you’ and ‘me’. Yet, just because they love ‘their own kind’, they are ostracised and hounded by the law. And branded as ‘queers’ and ‘aberrations’ — precisely what they are not. ‘‘Homosexuals are normal humans attracted to their own gender. Relationships are defined by comfort levels and not societal sanctions,’’ says psychiatrist Jitendra Nagpal, MD, “Like heterosexuality, homosexuality is an orientation which is not unnatural. The world accepts this orientation; society is changing.’’ What is not changing is the legal mindset in India.
What is Homosexuality
Homosexuality refers to sexual behavior with or attraction to people of the same sex, or to a homosexual orientation. As a sexual orientation, homosexuality refers to “having sexual and romantic attraction primarily or exclusively to members of one’s own sex”; “it also refers to an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.” Homosexuality, bisexuality, and heterosexuality together make up the three main classifications of sexual orientation and are part of the Heterosexual-homosexual continuum. The exact proportion of the population that is homosexual is difficult to estimate reliably, but most recent studies place it at 2–7%.The adjective homosexual describes behavior, relationships, people, orientation etc. The adjectival form literally means “same sex”, being a hybrid formed from Greek homo- (a form of homos “same”), and “sexual” from Medieval Latin sexualis (from Classical Latin sexus). Many modern style guides in the U.S. recommend against using homosexual as a noun, instead using gay man or lesbian.
The exact nature of the development of sexual orientation and preferences is still not known. It is not clear whether sexual preferences result from genetic causes or are moulded by the environment in which a child grows up. Though some research studies have suggested that homosexuality is genetic and is present at birth, there is no conclusive evidence to prove it. Studies conducted on twins have shown that if one of the twins is homosexual, there is a more than 50% chance that the other twin will also be gay. Some studies have also shown that there is a difference in the brains of homosexuals
and heterosexuals.
Medically-speaking, evidence points to homosexuality being a function of biology. A study conducted by Dean Hamer in 1994, wherein he studied 40 pairs of homosexual brothers, reports that 33 pairs shared a set of five genetic markers. Hamer concluded that genetics played ‘‘some role’’ in a minority of gays. There have been other studies also to prove that homosexuality develops as a result of complex interactions between a child’s social, psychological and physiological environment. The realisation whether an individual is homosexual or not, usually dawns after puberty. Just like heterosexuality, homosexuality is also an alternative way of life.
Legal Provision under Section 377 of I.P.C
At a time when a large number of countries worldwide have legalised gay & lesbian rights, in India the outdated Section 377 of the IPC, framed in 1860, defines homosexuality as a crime even though an ever-increasing population of same-sex couples is a reality.
Section 377. Unnatural offences:
‘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 term which may extend to ten years, and shall also be liable to fine.’
Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Ironically, while the British drafted Section 377 of the IPC, while replacing a tolerant Indian attitude towards sexuality with a highly oppressive one, this law was repealed in the UK in 1967.
Today, homosexuality is recognised across the globe, with the Netherlands being the first country to permit marriage for gay and lesbian couples. While the UK has passed legislation recognising gay relationships, 37 states across the US have blocked anti-sodomy laws. Events such as Mardi Gras in Sydney, Midsumma in Melbourne, Gay and Lesbian Pride in Johannesburg, Women’s Celebration Week in Greece, and the Gay and the Lesbian Film Festival in Lisbon express the essence of being homosexual.
Yet, India remains untouched though literature drawn from Hindu, Buddhist, Muslim, and modern fiction testify to the presence of same-sex love in various forms. Ancient texts such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality. ‘‘India, with its overt emphasis on reproduction, has made same-sex love taboo. But with society becoming permissive about homosexuals, the law must be in step with the times,’’ says sociologist Radhika Chopra.
‘‘This outdated law violates the fundamental rights of homosexuals. Under the existing law, even consensual sex is branded as sodomy and people are booked. A petition has been filed against this law and the matter is sub-judice,’’ says Aditya Bandhopadhyaya, a lawyer fighting for the rights of sexual minorities, Counters DCP (crime) Deependra Pathak, ‘‘Although this law exists, it is hardly used in the case of consenting-adult relationships except when we receive a complaint.’’
Violation of ‘Fundamental Rights’
The fundamental right to liberty under Article-21 prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice, the South African court held that, “Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community”. Also the distinction made between people on the basis of their sexual orientation attracts the provisions of Article 15 which prohibits any kind of discrimination between people on the basis of sex, caste, religion and race.
Even at the international level, the right to privacy has been recognized in the favour of lesbians and gay man. In the 1980’s, the European Court of Human Rights was the first international body to hold that the laws criminalizing consensual, private sexual activity between adults violated the right to privacy as protected by the Article 8 of ECHR. Most recently the European Court of Human Rights decided in ADT V. U.K., that the criminalization of sexual activities between men when more than two men are present also violated the right to privacy. Thus consensual private sexual relations come within the purview of the right to privacy guaranteed under Article-21 and right against any discrimination under Article-15 of the Constitution.
Naz Foundation v. Union of India Case
The Naz Foundation (India), a New Delhi based NGO is at the forefront of the campaign to decriminalize homosexuality. It operates as a registered charitable trust and has been working on HIV/AIDS and sexual health related issues since 1994. In December 2002 Naz India filed a Public Interest Litigation (PIL) to challenge IPC section 377 in the Delhi High Court.
In its arguments opposing ‘decriminalisation of homosexuality’, the government described homosexuality as “a most indecent behaviour” in society, pointing out that homosexuals comprise just 0.3% of the population and the interest of rest 99.7% population “cannot be compromised” just to accommodate their rights.
Objecting to the government’s unscientific contention that the homosexual trait in a human being is a “disease” and that if legalised, homosexuality would bring “devastation” to society, the Delhi High Court said that “show us one report which says that it is a disease. A WHO paper says that it is not a disease but you are describing it as a disease.
As contended by the Union Health Minister Mr. Anbumani Ramadoss , a recent study conducted by the UNFPA in rural India has found that male-to-male sex is not uncommon. ‘‘In fact, a higher percentage of men reported male-to-male sex than sex with sex-workers. Close to 10 per cent of unmarried men and 3 per cent of married men reported sex with other men in the past 12 months,’’ says the study. . “The entire objective of getting homosexuality decriminalised is primarily to reach out to an estimated 4.5 million MSMs across the country as about 86 per cent HIV/AIDS-affected persons in India are ‘Men Having Sex with Men’ (MSM). My concern is purely on health grounds because Section 377 in its present form interferes with health ministry’s efforts to tackle HIV/AIDS epidemic, as even the doctors treating gay patients could be punished. Hence unless we take appropriate steps it would be difficult to contain the spread of the virus”, he said.
This suit is still pending before the Delhi High Court, challenging Section-377 of IPC so that there should be a recognition of the fact that central to the concept of “personhood” is the universal need for an intimate personal sphere where the ‘pursuit of happiness’ may be fulfilled. It follows logically that to be meaningful ‘the pursuit of happiness’ must ensure that the individuals are given the right to choose how to achieve personal happiness and more so what constitutes personal happiness for them in the first place;
that it should upheld individual autonomy.
Latest Trends in India
There is a vibrant gay nightlife in cities such as Mumbai, Hyderabad, and Bangalore, including discos and nightclubs. The reports of harassment of homosexual individuals and gatherings by the police has seen a gradual decline since 2004. The majority of Indians, according to various polls and surveys, still look down upon the LGBT community. However, many social and human rights activists have been working towards a queer positive society.
In 2005, Prince Manavendra Singh Gohil from a conservative principality in the Gujarat state publicly came out as gay. He was quickly anointed by the Indian and the world media as the first openly gay royal. He was disinherited as an immediate reaction by the royal family, but they eventually reconciled. He has even appeared at an Oprah Winfrey show.
In 2008, Zoltan Parag, a competitor at the Mr. Gay International contest said that he was “scared” to return to India fearing discrimination. He said, “Indian media has exposed me so much that now when I call my friends back home, their parents do not let them talk to me”.
On June 29, 2008, four Indian cities (Delhi, Bangalore, Kolkata and Puducherry) celebrated gay pride parades. These were the first pride parades in Delhi, Bangalore and Puducherry. About 2000 people turned out in these nationwide parades. Mumbai held its pride march on August 16, 2008, with Bollywood actress Celina Jaitley also coming out to join in the festivities.
Conclusion
In 1973 the American Psychiatric Association confirmed the importance of the new, better-designed research and removed homosexuality from the official manual that lists mental and emotional disorders. Two years later, the American Psychological Association passed a resolution supporting this removal.
‘‘Two years ago, gays were forced into medication to ‘cure’ them. This mistreatment included shock and aversion therapy. When we petitioned the NHRC, the case was rejected in the light of Section 377.’’ The fact needs no proof that till date majority of the Indian population remains ‘homophobic’. Homophobia (from Greek homós: one and the same; phóbos: fear, phobia) is an irrational fear of, aversion to, or discrimination against homosexuality or homosexuals.
People who refuse to fit every expression of their sexuality under one homogeneous umbrella to satisfy society. People who reaffirm their rejection of a singular identity. People who are beaten, harassed and jailed simply because of their sexual orientation. This is the world of gays, lesbians and bisexuals — sexual minorities which have given India, and the world, some of its most creative people, including Walt Whitman, Elton
John, Michelangelo and Gianni Versace.
If laws are supposed to represent socially-acceptable dos and don’ts, then a new mindset is the need of the hour. Otherwise, normal human beings will continue to suffer inhuman exploitation just because nature has nourished them with the need to be different. If not absolute ‘scrapping’ then mere ‘modification’ of the law treating homosexuality as a criminal offence punishable up to life imprisonment under Section 377 of the Indian Penal Code can make a difference in restoring right to privacy- ordered liberty and individual autonomy concerning private consensual sexual relations.
Shubhra Mishra
Army Institute Of Law
Merriam Webster Online Dictionary
Webster’s New World Medical Dictionary 3rd edition, 2008
Bowman, Karl M.; Eagle, Bernice The Problem of Homosexuality, Journal of Social Hygiene 1953
Subs. by Act 26 of 1955, sec.117. and sch., for “transportation for life” (w.e.f. 1-1-1956).
Why should homosexuality be a crime? Times Of India:18 Sep 2003
Kharak Singh v. State of U.P AIR 1963 SC 1295
1999 (1) SA 6) C C
(Unreported, ECHR, 31st July 2000 Appeal No. 35765/97)
: Delhi HC to Govt: Homosexuality is not a disease, Times Of India 21 Oct 2008
HYPERLINK “http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=f3963ec8-92ec-4d0e-9ffb-17d6116d8a78&”I’m scared to return to India, Hindustan Times, February 01, 2008
http://www.apahelpcenter.org/articles/article.php?id=31 retrieved(20-12-2008)
Delhi HC to Govt: Homosexuality is not a disease, Times Of India 21 Oct 2008
The American Heritage Dictionary of the English Language: Fourth Edition
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