RESEARCH ARTICLE ON DECRIMINALIZATION OF HOMOSEXUALITY AND LGBT ACTIVISM IN INDIA

RESEARCH ARTICLE ON DECRIMINALIZATION OF HOMOSEXUALITY AND LGBT ACTIVISM IN INDIA

Written by Kirti Sikdar
3rd Year BA LLB Student, School of law, Christ (Deemed to be University)
Abstract:
With the advent of the 21st century, which happens to be a period of development and progression, where modernization is dominating over the world, industrialization and globalization have added to material advancement, there is still a lot of scope for change as for specific beliefs and thoughts, by virtue of the conservative ideology soaked up in the brains of many, who have not had the option to acknowledge certain parts of the changed world. In the Indian setting, disregarding technical progression, there has been social relapse in certain areas and the standpoint towards the LGBT people group is one such area. The blatant infringement of human rights of this section of the populace can’t be neglected, and one couldn’t in any way overlook the disdain, bias and separation that they have exposed to. The attributes of the social and political foundation of the issue and the viewpoint that law as an establishment takes to address are analyzed in this essay. The socio legal inconsistencies and the requirement for the acknowledgment of their privileges is also put forth. The LGBT community’s battle for acknowledgment and equality as a part of the whole population, the sort of troubles that they face are to be noted and by virtue of these issues, decriminalization of Section 377 of the Indian Penal Code, which rebuffs homosexuality is unquestionably advocated, regarding the Supreme Court’s judgment wherein the Victorian law was held to be unconstitutional. So this article endeavors to outfit how the decision is an embodiment of defense, given the trashing that has been seen in the conservative Indian culture.
Introduction:
Same sex relationships in India have been a stigma for a considerable amount of time particularly while considering the fact that the Indian outlook towards this had undergone much change only during the colonial era. The impact of British belief systems upon the Indians during their rule has brought about the Indians engrossing these thoughts, because of which contradicting heterosexual monogamy and such practices began getting common, by virtue of the conservative ideas possessed by the Indians along with the British perceptions. Hence section 377 was incorporated in the Indian Penal Code which criminalized sexual activity “against the order of nature”.

Historical Background:

The pre-colonial Indian society did not criminalize same sex relationships but rather portrayed homosexuality as a natural phenomenon. The Hindu Khajuraho temples contain several sculptures depicting homosexual activity. Shikandi in the Mahabharata was born as a female but identified herself as a male and eventually got married to a woman.

During the Mughal Empire, the Fatawa-e-Alamgiri (Alamgir, 2019)[1] was mandated which had set punishments such as lashes for a slave or infidel or death by stoning for a Muslim for offences of unlawful intercourse such as adultery, prostitution, homosexuality etc.  

Homosexuality has been in existence for many years. The religious texts and literature of Hindus, Muslims and Buddhists attest this, by way of portrayal of same sex love in different forms, over the years.  The Manu Smriti, Arthashastra, Kamasutra, Upanishads, Puranas and other ancient texts denote the existence of homosexuality. India as a nation was never new to the conception, until the British brought about such a conservative, draconian law that deprived rights of the LGBT community.

With the coming in of the British, came stricter laws. Various scholars have argued that the British intended to police the body of their colonial subjects and therefore, Lord Macaulay, who was the President of the Law Commission of India in 1860 introduced Section 377 which made it an offence for a person to have carnal intercourse against the order of nature. The section reads as follows: “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 a term which may extend to 10 years, and shall be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”[2]
This law drafted by Lord Macaulay has been in existence for over 160 years now without considering the social transition in the society over time. But there has been certain developments in this regard initiated by the judiciary in India. In the case of Naz Foundation v. Govt. of NCT of Delhi of 2009, the Delhi High Court found that Section 377 is in direct violation of the fundamental rights guaranteed under the Indian Constitution. The irony about Section 377 is that though the British considered it important to replace the accommodative and tolerant Indian attitude towards sexuality with that of an oppressive and discommodate one, they eventually ended up repealing this law in the United Kingdom.

Homosexuality was always in existence before the outbreak of the industrial era and was widely prevalent and accepted among the economically and socially weaker sections and was condemned by the upper class population. The instances of queer relationships in pre modern era as depicted in poetry, paintings and even in historic figures such as Leonardo da Vinci, Plato, Alexander the great, Hadrian, Christopher Marlowe and Virgil, Michelangelo were centered upon same sex orientation.[3]
So we can conclude that history consists of plenty of instances to prove the practice and acceptance of homosexuality during the earlier times, until it happened to be criminalized.

Role of the judiciary in favor of homosexuality:

There had been over 30 amendments to the IPC since its adoption but still Section 377 had remained unaltered despite the 172nd Law Commission Report of 2000 that recommended the deletion of this provision.  The first challenge to the draconian law against homosexuality can be traced back to 1994 when the Aids Bhedbhav Virodhi Andolan, an AIDS activist group, filed a writ petition in the Delhi High Court demanding that condoms be made available to the inmates of Tihar jail in New Delhi. It was contended that the jail authorities denied the supply of condoms as it would advance homosexual behavior among the inmates.

In 1996 members of the Indian lesbian collective called as Stree Sangam made a first time attempt to create a public opinion on domestic-partnership laws by making a presentation in a government conference on marriage and family law.

The most recent legal development was seen in 2001 with the efforts of the Naz Foundation Trust, New Delhi. The organization had filed a writ petition challenging Section 377 in the Delhi High Court on the grounds that Section 377 was violative of Article 21 of the Constitution which sates the right to life and personal liberty, Article 14 of the Constitution which mentions the right to equality and the right to freedom guaranteed to all citizens under Article 19 as Fundamental Rights under Chapter III of our Constitution.[4] This case was triggered by the incidents of indiscriminate arrest of homosexual persons. The court pronounced its verdict in 2009 and decriminalized private sexual behavior between consenting adults. The court upheld the contention of the Petitioners that Section 377 was violative of Articles 14, 19 and 21 of the Indian Constitution. The court said that any distinction or classification should be made satisfying the test laid under Article 14 where the distinction should be based on an intelligible differentia which has a rational relation to the objective sought to be achieved by implementing the law that was unjust and infair. Though the section appears to be gender neutral, it impacts on homosexuals as a class. The court further said that the section doesn’t distinguish between public and private acts, or between consensual and non-consensual acts, thus does not take into account relevant factors such as age, consent and the nature of the act or
absence of harm. The Court stated that such criminalization in the absence of evidence of harm seemed arbitrary and unreasonable.
[5] The Court stated that although the provision on its face is neutral and targets acts rather than persons, in its operation it unfairly targets a particular community, resulting in a conclusive notion that all gay men were to be criminalized. This led the Court to conclude that Section 377 discriminated against a particular community and hence violated Article 14 of the Constitution.[6] 

 In the case of National Legal Services Authority v. Union of India[7], the Court held that discrimination on the basis of sexual orientation and gender identity was violative of the constitutional provisions, and that it is important to elevate the position of transgenders in the society. The Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India and Ors.[8] Case, also known as the “privacy case” also had ruled that sexual orientation is a facet of privacy, and must be constitutionally protected.    

Criticisms and opposing views:

India is a country known for its culture and traditions. The Indian society is diversified with a number of cultures and traditions but is an integrated society, wherein Hinduism is the religion of the majority. Even though most of the marriage related statues in India are gender neutral, according to the Indian society the institution of marriage is extended only to male-female relationships and there is literally no mention of same-sex relationships. A marriage is considered to be a heterosexual sacrament under the Hindu religion. This idea is also supported by Vishwa Hindu Parishad Party, whose president believed that for Hindus, such behavior was not just against nature, it was against the Indian culture. Even Shiv Sena members attacked theaters in New Delhi and Bombay where the films ‘Fire’ (1998) and ‘Girlfriend’ (2004) were screened that portrayed the difficulties of the LGBT community. They tore down posters, smashed furniture and organized violent protests. The Shiv Sena members contended that the film advocated same-sex relationship, which was an affront to India’s centuries-old Hindu culture. But at the same time lesbian groups and women’s rights organizations took part in rival protests demanding the screening of the movie. Many people deny the existence of sexual minorities in India, dismissing same-sex behavior as a Western, upper class phenomenon. Many others label it as a disease to be cured,-an abnormality to be set right or a crime to be punished. While there are no organized hate groups in India as in the West, the persecution of sexual minorities in India is more insidious.[9] 

The Indian Courts over time, have expressed a view that “carnal intercourse against the order of nature” can be comprehensive of certain non-procreative sexual acts, however the above expression has not been given an appropriate definition all things considered. This offers way to unjustifiable ambiguity.[10] Another inconsistency emerges when it is seen that when a man and woman engage in such denounced acts, the idea of homosexuals who undertake such activities attracts more attention on the basis of its illegality, given the traditional approach of looking down upon this phenomenon.[11]

At large, gay men were not acknowledged in the Indian culture, because of social marks of disgrace and therefore they have been extremely closeted. After the beginning of the 21st century there has been a comparatively liberal mentality of the population and the homosexual people’s populace has moved into and prospered on what has presumably been the most tolerating space they could have ever planned to discover, the Internet. Help lines have been set up to offer mental help for their kind, NGOs have stepped up for their guide and systems are being defined for their acknowledgment and prosperity. Today, by virtue of numerous prestigious characters turning out as lesbian or gay themselves, and given their good position that they have worked for, the help for homosexuality has generously increased.[12] 
Anyway when analyzed the truth, it tends to be noticed that sexual minorities in India are still socially weakened and looked downward on, socially, strategically and frequently lawfully and financially, as pointed out by various social researchers and activists. Hence choosing to remain isolated and apprehensive they tend to dodge the typical interest of the general public. Adoloscents, partic
ularly because of this sentiment of disengagement have frequently acclimated themselves to self-hatred and disarray and self loathing while attempting to see their future. Thus LGBT rights’ activists and homosexuals started demanding social and legal recognition of homosexuality over the years, because of their faultless and firm opinion that legal protection is probably the only way by which homosexual community can be guaranteed social rights, rights against exploitation and more importantly, health rights.
[13]

The state’s role:

In support of the LGBT rights and social activism against discrimination of homosexuals, the 42nd Report of Law Commission of India had expressed, “Indian society by and large disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even if adults indulge in it in private.”  

So it has, as of late, been all the more broadly acknowledged and accepted that it is the obligation of the state to make a move so as to ensure the fundamental privileges of the LGBT community. The legislature must sanction extraordinary laws to guarantee their welfare, due to the presence of the duty conferred upon them to protect human rights in general. The Government should take initiatives to help employers in making work environment and culture more supportive and comprehensive of LGBT individuals. The social mentality towards treatment of the LGBT community must experience change, so as to remove the stigma of homosexuality and related issues. Awareness must be created about their rights to enhance their position in the society. The Supreme Court, taking cognizance of such issues discussed above has recognized how homosexuals have in fact been treated as “less than equals”, while emphasizing upon the need to accept divergence and heterogeneity present in the Indian society.[14]
Conclusion:
Social activism for LGBT rights was not invited by the State and conservation section of society, and there has been mistreatment by those endowed with the duty of law enforceability. This set of individuals have been marginalized because of ancient laws and beliefs, this has prompted them being ill-treated and abused among the overall population. There have been numerous grievous episodes by virtue of such occurrences. However LGBT activism has made some amazing progress presently, bringing about the recent verdict of the Supreme Court, delivered on sixth September, 2018. The marvelous message from the Supreme Court’s landmark judgment decriminalizing homosexuality has proved that social morality triumphs over conservative belief systems and obsolete laws that specific areas of the populace despite everything, support. Human rights have been upheld over religious opposition and this reinstates the belief of the people, in the government.


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[1] Fatawa Alamgiri Kitab Ul  Zakat, Hazarat Aurangzeb Alamgir, 2019, Zawiya Publishers.

[2]  Misra, G. (2009). Decriminalising homosexuality in India. Reproductive Health Matters, 17(34), 20-28. Retrieved from http://www.jstor.org/stable/40647442.

[3] Babur, A. (2015). LGBT Rights: In the Dark Age of Reason.  Journal of Global Research Computer Science & Technology.

[4] Denial of Rights to Sexual Minorities. (2008). Economic and Political Weekly, 43(43), 6-7.  

[5] Urs, P. (2013). Making Comparative Constitutional Law Work: “Naz Foundation” and the Constitution of India. Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 46(1), 95-101.

[6] Vimal Balasubrahmanyan. (1996). Gay Rights in India. Economic and Political Weekly, 31(5), 257-258. Retrieved from http://www.jstor.org/stable/4403740.

[7] Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.Civil Appeal No. 10972 of 2013, (SLP (c) 15436/2009).

[8] WRIT PETITION (CIVIL) NO 494 OF 2012.

[9] Trivedi, I. (2014). The Indian in the Closet: New Delhi’s Wrong Turn on Gay Rights. Foreign Affairs, 93(2), 21-26.

[10] Gupta, A. (2006). Section 377 and the Dignity of Indian Homosexuals. Economic and Political Weekly, 41(46), 4815-4823.

[11] Vanita, R. (2009). Same-sex weddings, Hindu traditions and modern India. Feminist Review, (91), 47-60. Retrieved from http://www.jstor.org/stable/40663979.

[12] Srivastava, S. (2014). Disciplining the ‘Desire’: ‘Straight’ State and LGBT Activism in India. Sociological Bulletin, 63(3), 368-385.  

[13] Dave, N. (2011). Abundance and Loss: Queer Intimacies in South Asia. Feminist Studies, 37(1), 14-27. Retrieved from http://www.jstor.org/stable/23069881.

[14] Jawale, K. (2016) Issues and challenges of ‘LGBT’ minority people in India. International Journal of Applied Research, 2(6), 408-410

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