WHAT IS HOMOSEXUALITY?
The in late 19th century a German psychologist, Karoly Maria Benkert originated the term ‘homosexuality’. The term was new but not the meaning behind it discussions about sexuality in general, and same-sex attraction in particular, have occasioned philosophical discussion ranging from Plato's Symposium to contemporary queer theory. Since the beginning of the time there has beena small but persistent minority in every society exhibit a sexual orientation or gender identity different from the majority. These discoveries of science have attracted and increasing interest on the part of the civil society in the laws which have traditionally disadvantaged those in the relevant minority groups.
So long as it was believed that human being were universally and naturally born to desire sexual and connected emotional relations only with persons of the opposite sex and that it was what nature or god has imprinted on the human species the imposition of the criminal laws and various forms of legal and social discrimination against minorities not conforming to the norm could perhaps be understood.
The criminalisation of deviant sexuality started with the era of colonialism as only after centuries when the initiative of individuals and civil society of UK and other countries that led to the repeal of criminal laws that had targeted sexual activity involving people whose sexual orientation was same sex oriented.
In this epoch of modernity, Indian culture has also become modern and considered homosexuality as legal. As On September 6, 2018 Hon’ble Supreme Court declared section 377 of IPC, 1860 unconstitutional and provide homosexuality a status of legality making homosexuality legal Homosexuality over the years is used by different terms and in modern times to include all the minorities of different sexualities together the term LGBTQ is given that group of it stands for Lesbian, Gay, Bisexual, Transgender and Queer and along with heterosexuality they describe people’s sexual orientation or gender identity.
Lesbian: -A lesbian refers to woman who is romantically, sexually and emotionally attracted to a woman.
Gay: -A gay man is one who is romantically, sexually and emotionally attracted to man.
Bisexual: - a bisexual person is someone who is romantically, sexually and emotionally attracted to people of both sexes.
Transgender: - it is an umbrella term used to describe people whose gender identity and gender expression, differs from that usually associated with their birth sex.
Queer: - A political explanation, just as a sexual introduction, which advocates breaking binary reasoning and seeing both sexual introduction and sex way of life as possibly liquid. The term is a basic mark to clarify a mind-boggling set of sexual practices and wants. For instance, an individual who is pulled in to numerous sexes may recognize as eccentric. Numerous more established LGBT individuals feel the word has been derisively utilized against them for a really long time and are hesitant to grasp it. "Queer" can be used as an umbrella term to insinuate all LGBTQI people.
HISTORY OF DEVELOPMENT
India because of its own colonial past was one such country which was under the influence of England. Typically the growing scientific knowledge was ignored frequently in the name of culture and religion. In the 19th century when British power in India was expanding the greater was the sexual repression in the country. As England colonized many countries many or all of the penal laws were influenced by it specially the Macaulay’s IPC within which section 377 of unnatural offences was added. The effect of which was that even if the two adults consented to the same sex activity they were to be punished by the law.
To understand section 377 of IPC adopted by British rulers of India in 1861 it is necessary also to understand a little more about the way that the sodomy offence earlier came to exist in European legal system over the preceding thousand years. Section 377 of IPC reads as-
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 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.
And this section is similar in most of the European colonies. The first formalisation of anti-homosexual bias in Europe began with the imperial conversation Roman Empire to Christianity. The more rapid the process of modernisation the more intolerant society became.
The idea of sodomy originated in the scriptural texts of Abrahmic, Judaism, Christianity and Islam. Sodomy was perceived by the Church as an offence against God and that is why the consequences of this crime were the most painful death.
The middle ages showed a relaxation of some of moral requirements in the same field. However, hard line religious believers again asserted their views by the mid thirteen century. This mentality influenced the content of English Penal Laws as declared by the judges and enacted by the Parliament. By this, it means sodomy laws found their way in time into virtually every corner of British Empire including India and Australia. A significant change came about in 16th Century following the severance by Henry VIII of the link that had to that time existed between the English Church and Bishop of Rome. Common Law crimes were revised.
It was after the publication of Alfred Kinsey report on human sexuality that the notion of homosexuality as a mental illness came under intense critical scrutiny within the border of scientific community. In 1990 WHO removed homosexuality from its international classification diseases. Contemporary research in brain science, genetic, neuroendocrinology all seems to coverage towards the conclusion that sexuality in human beings is not a matter of choice. The demolition of superstition and prejudices of the past inevitably have consequences of the Law.
As recently as 2000, the change in the homosexuality law was not accepted. Gay relationships were viewed to be shameful. Then in 2003, France moved to make a legislation on ‘gay marriages’. And a similar action was taken up in UK in 2004.
In the reasons of Chief Justice AP Shah and Justice Muralidhar in Naz Foundation case having dealt with the meaning of operation of Section 377 in IPC the Judges cited how it was that India, a pre dominantly non-Christian country came to embrace crimination of homosexuality. India’s own tradition happen to be more harmonious with the advancing discoveries of science and development of human rights.
JUDICIAL DEVELOPEMNET IN VARIOUS COUNTIRES
In DUDGEON VS UK the court held that Northern-Ireland’s criminal legislation on same- sex violates the right to privacy granted in Article 8 of EUROPEAN CONVENTION ON HUMAN RIGHTS. A legal right to a private space to express ones sexuality was confirmed for the first time in this case and was ultimately adopted by the Council of Europe. In December, 2013, the last state of the Europe to repeal this law was the republic of Cyprus.
Initially the attempts to repeal such laws failed in America, but subsequently, in 1986 in BOWERS VS HARDWICK dismissed a challenge to the sodomy law. While the right to privacy is not a right per say but for the implementation of the 14th amendment a measure to protect the privacy is implied. In 2003, SC overruled the Bowers in LAWERENCE VS TEXAS and found a flaw in the sodomy law and further in NADAN AND MCCOSKAR VS THE STATE held that right of privacy is a very wide right and involves the expression of one’s own personality without penalization.
The Naz foundation trust is a NGO that works in the area of HIV/AIDS and sexual health. And it was this foundation that issued a writ petition out of the Delhi High Court challenging the constitutional validity of section 377 IPC. Petition stated that section 377 violated article 15, 21 and 14 of the Indian constitution. The petition was upheld and in July 2009 it was held that 377 till where it penalizes the consented sexual acts of adults violate articles 21, 14 and 15. The court in NAZ FOUNDATION case said that like the US constitution the right of privacy is an implied fundamental right which stems from Article 21. The court based its decision on pre-existing jurisprudence and held:
“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the state.”
The DHC highlighted the question of “dignity of the individual” and believed that the notion of equality could foster the sense of dignity among the individuals. The DHC ignored the real reason of 377 being the prevention of HIV/AIDS and limited themselves to only the modern day needs and meaning of privacy.
In the matter of the violation of equality the DHC held that section 377 violated the equality rights of the LGBTQI Indians, and amounted to discrimination as prohibited by article 15 of Indian constitution. The judgement was accepted and there was celebration among the LGBTQ community of the country.
However, in KOUSHAL case nearly after 2 years of the Naz judgement the SC reversed its decision and held that it was not a constitutional matter but a legislative matter as section 377 either has to be repealed by the legislation or an amendment. This judgement set back the development of the Indian mind-set by a decade back and the equality that was promised in Naz case was taken back from this minority.
The level of support to same sex marriage and similar relationships in India is very low despite of the vast population of the country.
INTERNATIONAL LEGAL INCLUSIVENESS
There have been many positive developments in favour of LGBTQ community on international front. In May 2015: - Ireland legalized same-sex marriage. The country which had decriminalized homosexuality in 1993 became first country to allow same sex marriage.
In June, 2015 US Supreme court ruled that same sex marriage was legal.
France, UK, Canada, US, Australia & Brazil have decriminalized homosexuality.
Indian Supreme Court passed a judgment declaring Section-377 of Indian Penal Code, 1860 unconstitutional & conferring legal status on LGBT community. Section 377 IPC, 1860 Till 2018, in India LGBT community were illegal and punishable under Section 377 of IPC, 1860 (the national criminal law of country)
NAVTEJ SINGH JOHAR VS UOI
The case is an appeal against the judgment given by the Supreme Court in the previous case of 2013. The coram consisted of CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra and the constitutionality of section-377 of IPC was challenged.
The petitioner contended that Homosexuality, bisexuality and any other sexual interest is something natural and is not a physical or mental illness. It is a reflection of personal choice and criminalizing it will lead to the destructing of Article 21 of the Indian Constitution by affecting an individual dignity and his or her gender identity. The main problem with 377 is that it is based on the morals and social values of Victorian-era where sexual activities were just considered as a reproductive process and nothing more than that. This section is the only reason that the LGBT community has suffered discrimination and abuses all their lives and will continue to suffer if homosexuality is criminalized again and it is nothing but infringement of their fundamental rights. That there is no reasonable classification between natural and unnatural sex and even the expression “carnal intercourse against the order of nature” is not defined anywhere. Therefore section-377 is arbitrary and vague and is violative of Article 14. Not only this but section 377 also violative of Article 15 as it discriminates the LGBT community on the basis of sex of their partners which is prohibited under Article 15 of the Indian Constitution.
The submissions of the state was that if section-377 is declared as unconstitutional then the family system will be destroyed and many corrupt young Indians will see this as a trade and will start using homosexual activities for money. Moreover, individuals indulging in such activities are more likely to contract HIV/AIDS which will increase the percentage of AIDS victim in the country. They pointed out the ever old defense of cultural heritage and totally disregard that the real culture of India was always inclusive of every sexuality. Fundamental rights are not absolute and decriminalizing section-377 will leave all the religions practiced in the country as objectionable and will lead to the violation of Article 25 of Indian Constitution which also needs to be given due consideration.
The Court relied upon its decision in National Legal Services Authority v. Union of India to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity. The Court relied upon its decision in K.S. Puttaswamy v. Union of India and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” and if it continues to be on the statute books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)”. Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm that an adult’s right to “choose a life partner of his/her choice” is a facet of individual liberty.
Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “Constitutional morality would prevail over social morality” to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.
J. Nariman in his opinion analyzed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone”. There was no reason for the continuance of the law. He concluded his opinion by imposing an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them.
J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, it’s “effect was to efface identities” of the LGBT community. He stated that, if Section 377 continues to prevail, the LGBT community will be marginalized from health services and the “prevalence of HIV will exacerbate”. He stated that not only must the law not discriminate against same-sex relationship, it must take positive steps to achieve equal protection and to grant the community “equal citizenship in all its manifestations”.
J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality”. She stated that the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy”. She concluded her opinion by stating that history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.
After all this discussion the section 377 IPC was read down and it was held that the part of two consenting adults having carnal intercourse irrespective of their gender should not be declared criminals as was happens in their bedroom is their own matter and it violated the privacy to enter into bedroom. Still same sex marriages are not recognized in India as the court stepped back from interfering with the legislative power and said that making changes in law or creating new is not in their preview. But after years of coming of this landmark judgment no steps have been taking in furtherance of any law and every time the legislative is asked to making marriage laws they take the excuse of it not being an urgent matter of the cultural appropriation of the country.
DEVELOPMENT THORUGH MASS MEDIA
May be the government is not interested in taking steps to protect the fundamental rights of the individuals but the Indian cinema have taken upon themselves to do something about the issue. Cinema is one of the biggest sources of entertainment as well as of information to Indian masses. And when they start to accept this socially fragile concept, the masses try to accept the same. Earlier when the social acceptance was low among the masses the movies having even a little hint of such topics were forced to shut down but now as the society develops and accept the natural course of things the entertainment media also develops.
Some remarkable movies such as Fire and Earth came in the later nineties and were a cause of many controversial debates as people were not ready yet to accept the open discussion on sexuality of the individual.
Later in 2015, a movie Aligarh came which was based on the real story of a professor who was suspended from his job just because of his sexuality. He was harassed by the society and was subjected to both physical and psychological pain. The movie portrayed a somewhat real picture of the Indian society of what it has to offer to the people who do not conform to the standards set by the society at large.
Not only the acceptance of society but of the family also matters and is above the acceptance given by society. In 2016, the movie Kapoor and Sons tried to paint a picture into the coming out of the people to the family and what homosexuality means to the family and how it affects their reputation and change in their mannerisms towards the person.
After the landmark judgement of Navtej Singh Johar came in 2018, the Indian cinema embraced it and in 2020 the movie Shubh Mangal Zyada Savdhan came out which tried to portray what this land mark judgement meant to LGBTQ community and how acceptance from law has helped in reducing even if not all but some obstacles in the acceptance of this community in the society.
SEXUAL ORIENTATION AND GENDER IDENTITY- A NEW PROVINCE OF LAW FOR INDIA
BY- J. MICHAEL D. KIRBY AC CMG
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES IPU
INTERN AT S. BHAMBRI AND ASSOCIATES
MAY 2021 BATCH
EMAIL ID- firstname.lastname@example.org