Homosexuality and its recognition in India.



Homosexual! A Gay!! Yes, whenever one hears this word one can't stop staring at the person. Whether we are on a train, bus, a mall or anywhere in a public place, we can clearly see people facing difficulties in accepting them. They find them amazingly abnormal! Why? Even today it takes dozens of courage to say, I am homosexual. It takes to even greater humbleness to accept the truth. This complexity of behaviour makes me question as to why society still behaves differently to deviant sexual orientations like homosexuality. Is it just because their behaviour doesn't match with 'others' or is it because the 'others' tries to put a blind eye on this harsh reality. Even though same-sex marriage has been legalized in India, our society still questions marriages between neutral gender which has a sacred meaning for them as it has for the 'others'.

These questions perhaps cannot be answered by one alone, it needs an in-depth analysis of social mentality and structure of our society.

Homosexuality is a type of sexual orientation characterized by sexual desire or romantic love exclusively or almost exclusively for people who are identified as being of the same sex. People who are homosexual, particularly males, are also known as ‘gay’ and female homosexuals are known as ‘lesbians’. It can also be defined as sexual relations with another of the same sex regardless of one’s sexual orientation, self-identification or gender identity.


The last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be considered abnormal behaviour and was removed from the classification of mental disorder. It was also decriminalized in different countries. Since then various states across the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws. In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals. In India, so far no such progressive changes have taken place and the homosexuals remain victims of violence in different forms supported by the state and society.

In April 1954 when the proposed Special Marriage Bill was being debated in Rajya Sabha a Congress MP from Bihar, Tajamul Hussain, raised the question of how the law might deal with sex change. According to the report in the Times of India (ToI), Hussain asked "if the husband changed into a woman and the wife into a man what should happen to such a marriage? Would it become void?" Hussain’s query was brushed off as irrelevant at that time, but it is not irrelevant today.

Indian society has always taken a despicable, narrow approach when it comes to 'sex'. But with the import of western life-style in metro cities and revolution in information technology (which includes access to satellite channels and electronic media) the outlook of people, especially that of younger generations and social activists, towards sex is positively changing.

In India, homosexuality is not directly targeted by the law. Earlier, it is indirectly regulated by section 377 of Indian penal code, which makes the act of carnal intercourse against the order of nature with any man, woman or animal an offence. Between, February and April 1994, there were several reports in national newspapers about the existence of rampant homosexuality at Tihar jail in New Delhi. The doctors recommended that condoms be provided to prisoners to protect them from HIV, but the then Inspector General of Prisons, Kiran Bedi, opposed this view saying that it would encourage homosexuality which is an 'offence'.




The Constitutional validity of section-377 of IPC was challenged in the Delhi High Court as being violative of fundamental rights guaranteed under the Indian Constitution. Here it may be noted that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion is an essential element of the crime.

The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the government's stance:
  1. the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law loses its legitimacy et al;

  2. that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights, and freedoms, its criminalization is therefore justified; and

  3. that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

On 6th September 2018, the Supreme Court, in four separate but concurring judgements, set aside its own verdict in the Suresh Kaushal case, decriminalising homosexuality for consenting adults. The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals based on their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). They all referred to Court’s recent judgments in NALSA (recognised transgender identity) and Puttaswamy (recognised fundamental right to privacy).



“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.”

— Former Chief Justice Dipak Misra and Justice AM Khanwalkar.

The court also said on this matter that,

“LGBT individuals living under the threats of conformity grounded in cultural morality has been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to equal participation of citizenship and equal enjoyment of living.”





After all, Love is love. It's high time the 'others' should consider the real threat to marriage which is the alarmingly high divorce rate. Marriage is also a legal joining of two individuals. People who are not religious choose to get married in a registry office and not in church. Marriage shows the strongest commitment you can make to one another. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is not religious, but a legal joining. Getting married is the ultimate way of showing your love and commitment to your partner, so why should gay people be deprived of this right socially even when they have their legal and fundamental right. Who are we to sit and judge anyway. Same-sex marriages are legalized! And people should support it. If people find gay relationships contrary to their religion, it is up to them to refrain. Those who do not share their religious opinions should be free to make their choice on this as on other issues. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings.

Official Writer - Sneha Kumari










 
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