HOMOSEXUALITY in India –
Ever since we got independent, the Indian judiciary approach to homosexuality in India has been unjustified. Whereat one end the court successfully established rule of law through series of judgement, the court has unsatisfyingly denied a significant population their right to equality. During that era 70s and 80s, the court became the saviour of people’s fundamental rights and their liberty locking horns with the government yet it failed to take the stance for the homosexual community. However, with the coming of the second decade of the millennium, the court slowly and gradually is changing its stance and moving in the right direction.
INTRODUCTION
Let’s start with the basics. What exactly is homosexuality? Homosexuality is a romantic attraction or a sexual attraction between members of the same sex. It refers to “an enduring pattern of or disposition to experience sexual, affectionate, or romantic attractions” to people of the same sex. So, this makes them a whole new species of human, right? No, it doesn’t. It is just normal people with a different choice.
BACKGROUND
We often have a tendency to bring everything the same umbrella. If the something beyond the grasp of heterosexuals, guess what, it is blasphemy and a crime. A difference doesn’t make it wrong it makes the diversity. Before the coming of the British age, Indians very well recognised homosexuality, in fact, embraced it. This could be seen from the sacred text of Rigveda which says ‘Vikriti Evam Prakriti’ (what seems unnatural is also natural) which some scholars believe the cyclical constancy of homosexual/transsexual dimensions of human life.
There even Vedas said it! Moreover, evidence can also have found from the texts of Kamasutra describing homosexual acts. Male homosexuality can also be found in medieval Muslim history and Hindu aristocracy too. If u don’t believe me go check out wall sculptures of Khajuraho monuments. With the onset of patriarchy, only women’s rights haven’t suppressed some others also lost their voices. With the penal code made by Lord Thomas Macaulay, it became a legal offence, ever since. The English compared misunderstood the concept of homosexuality in India with bestiality and sodomy.
LEGAL POSITION
Now further moving on to the legal part of homosexuality. What law has to say about homosexuality.
There is no explicit mention of homosexuality or haemophilia in any of the statute books of India. A person cannot be prosecuted for being a homosexual or homophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalization of same-sex acts if found in Section 377 of the Indian Penal Code (IPC) of 1860.
Section 377of Indian Penal Code,1870 reads as –
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine”.
The offence of homosexuality in India is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this section refers to sexual intercourse between men or in other words, homosexual relationships. Penile-anal and penile-mouth have been by the court within the ambit of unnatural offences. One important thing to note here is the consent of adults is immaterial.
ROLE OF COURT
Indian law seems to be very harsh on homosexuality in India. Even the saviour of rights didn’t come to the rescue. However, with the onset of a new century, came a new understanding. Delhi High court in the judgement of Naz Foundation vs NCT of Delhi, the court struck down 377 as being unconstitutional. The Court held that to the extent S. 377 criminalized consensual non-vaginal sexual acts between adults, it violated an individual’s fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India.
The High Court did not strike down Section 377 completely. It held the section to be valid in case of non-consensual non-vaginal intercourse or to intercourse with minors, and it expressed the hope that Parliament would legislatively address the issue.
However, in the later judgement, Supreme Court in the judgement overturned the aforementioned judgement. But interestingly enough, it recognised two classes of people who indulge in carnal intercourse. Here comes the tricky part, one class of person who indulges in carnal intercourse in the ordinary course of nature and others who indulge in carnal intercourse against the order of nature. In simple terms, carnal intercourse among homosexual is different from sodomy and bestiality in English law terms.
The judgement may not have legalised homosexuality in India but definitely has recognised and differentiated it from unnatural sex. It is a very significant step towards legalising homosexuality.
In the light of more recent judgement court has held that an individual’s sexual orientation is protected under the country’s Right to Privacy law.
CONCLUSION
In order to cope with the social stigma of homosexuality in India, in order to recognise the legal rights and in order to make homosexuals stand equal to other courts and the Indian legal system has a vital role to play as it played in the abolition of Sati-paratha, devadasi, dowry and many other social evils which the accepted norms were once. The legal battle is one small part of the big war homosexuals have to fight, real war will be against society. To overcome the taboo of homosexuality in India, they will need the support of every single individual in society. I know it is a long road but at least we have finally started walking down on the right path.
Written By Ankit Raturi, University School of Law and Legal Studies
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