AN ANALYSIS OF THE JUDICIAL APPROACH TO HOMOSEXUALITY
Homosexuality is a sexual preference exclusively for persons who are classified as being of the same sex, marked by sexual desire or romantic love. Homosexuality is, therefore, not a modern phenomenon. In Hindu mythology, instances of homosexuality are also available. The literature taken from Hindu , Buddhist, Muslim, and modern fiction also reveals that same-sex love is present in different ways. There is also reference to homosexuality in ancient texts such as Manu Smriti, Arthashastra,Kamasutra, Upanishads and Puranas. The general understanding is that there is a symphony of variables that function over a long period of time to decide the sexual orientation of each person. Research shows that homosexuality is mainly hereditary in nature, and it also states that people with homosexual genes will feel less likely to act heterosexually and will thus reproduce less frequently. Homosexuality is a criminal offence in India and is criminalised under the Indian Penal Code , 1860, Section 377. After the evolution of section 377 after independence, there has been no significant reform in this statute. Being such an old rule, according to current social circumstances, it needs to undergo certain alterations. People need to change their attitude about the issue of homosexuality and avoid treating it as some kind of disorder. The struggle to decriminalise homosexuality has been going on in India for a very long time now. The case of the Naz Foundation, which was decided by the Delhi High Court in 2009, decriminalised homosexuality, but was overruled by the Supreme Court of India in 2013, again making it a crime. In a way, this also violates the right of a person to privacy. The fight against homosexuality continues.
India has always been remembered for its culture and history as being a nation with a diversity as vast as the stars in the sky. Queer is an umbrella term used to refer to a diverse world culture that includes individuals in LGBT (Lesbian Gay Bisexuals Transgender) communities categorically segregated. It is possible to trace homosexuality from ancient times through several sources. These sources include images engraved on the walls of different archaic temples depicting the rich history of India in the form of sculptures, paintings and rock carvings. In addition , evidence from Arthashastra and epics such as Ramayana, Mahabharata shows that homosexuality was historically practised and was never seen as a disgrace to society in the way it is criminalised in our nation's current scenario and the constitution.
The British came to India and governed it for about 200 years and it was in their reign that they introduced criminalization of sexual acts "against the order of nature" in section 377 of the Indian Penal Code in 1861, which arguably included homosexual activities. British people left the country back in 1947, establishing a statute that our nation is still following over 150 years ago, although the same was decriminalised by the British back in 1967, just 20 years after they returned from India and the latest change to which the British made in 2014 by legalising gay marriages in England , Wales and Scotland. It is obvious to say that homosexuality is not a Western import, but bigotry is, as is evident in the adoption of British in different other colonies. Section 377 of the Indian Penal Code is one of those laws which, according to the changing times, are very outdated and proper amendments need to be made. The main explanation for this is that the rules themselves need to be updated with the changing times and reforms need to be introduced about as time passes. The battle in India for the decriminalisation of homosexuality is not one that is recent in nature. It has been going on for a long time in our country.
The condition surrounding queer rights in India needs to undergo a whole lot of changes. It is very clear in the course of the paper that India's fight for queer rights has been a very long-lasting one. With the passing of time, support for the fight for homosexual rights has only grown. To a certain degree, the circumstances in India with regard to queer rights have improved. The Right to Privacy decision has provided the right to express one's sexual orientation and has marked this right as a constitutional right and one of the most essential components of the right to privacy. The mere fact that Section 377 of the Indian Penal Code does not provide for unnatural homosexual intercourse, which is contrary to the essence of humanity, is sufficient in itself to prove this point.Article 14 of the Indian Constitution, the fundamental right to equality, is violated on the basis that queers are unjustly listed. Article 15 of the Indian Constitution, which forbids discrimination on the basis of such attributes, including 'sex' (in this case, sex is not restricted to gender, but also applies to an individual's sexual orientation), is infringed. According to Article 21 of the Indian Constitution, the fundamental right to life and personal liberty is also being violated as it forbids the free option of the people of the country. Therefore, we can explain the impression that, in today's scenario, Section 377 of the Indian Penal Code is a highly debatable and unpredictable subject and can turn for the better (or worse) depending on the power play at hand.
Although there have been some changes in homosexual rights in India, there is still a long road that needs to be completed in order to eradicate homophobia and establish a more homosexual friendly atmosphere in the country. Nearly 2.5 million people are homosexuals in the country and this is the number of people who have proclaimed themselves to be homosexuals. Many people are homosexuals there, but because of the fear of being disciplined or boycotted by society, they do not report it. To improve conditions, certain steps need to be taken, and these may include:
Make amendments to section 377 of the IPC in order to decriminalise homosexuality and let people of the LGBT group express their sexual orientation freely.
Legal recognition should be given to the same-sex couples.
Being in a homosexual relationship or having homosexual intercourse should not be considered as an unnatural offence because it is no offence or disease but a natural sexual orientation that can be with anyone.
The judiciary should take steps towards the legalising of same-sex marriage.
People should not be looked down upon for being homosexual and there should be no social discrimination of the people on the fact of being homosexual.
Written By: Ms. Shreyaska Panda, Final Year Student, BBA LLB, Symbiosis Law School, Hyderabad, Law Intern at S. Bhambri & Associates (Advocates), Delhi