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The Homosexual Denial in India due to lack of Legislation: A kafkaesque


India is still considered to be an orthodox country where old cultural and religious beliefs overpower the new age modern thinking of the individuals. The land with the oldest religion of the world and it was considered that all the religions originated from the Sanatan dharma itself. In India, a person with special physical and mental attributes does not get the recognition which they deserve. The LGBT community people in India may face legal and social difficulties not experienced by a non-LGBT person. The second most populous country in the world does not recognise same-sex marriage, in fact considers it as Taboo. The Taboo starts with the unified law as India does not possess a unified marriage law. Every Indian citizen has the right to choose which civil code will apply to them based on their community or religion, still the marriages are legislated at the federal level; the existence of multiple marriage laws complicates the whole issue. India has identified same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence, LGBT groups are working in the backgrounds for a step by step approach, required to tackle all the problems and rights of LGBT citizens in India. The LGBT rights agencies are optimistic and are working on winning the right to same-sex marriage, inspired by the financial support and progress achieved in several Western countries.


The Taboo in 21st Century

In India, except for a few people who belongs to the elite with the proficiency in the foreign tongue i.e. English, in the metropolitan centres, mostly in the higher echelons of advertising, fashion, design, fine and performing arts, men as well as women with same-sex-partners neither identify themselves as homosexuals nor admit their sexual preference, often even to themselves because of the pressure from society. Many men - some married - have had or continue to have sex with other men; but only a miniscule minority are willing to recognize themselves as homosexual.


In India, the cultural ideology that strongly links sexual identity with the ability to marry and procreate does indeed lessen the conflict around homosexual behaviour. Yet for many it also serves the function of masking their sexual orientation, of denying them the possibility of an essential aspect of self knowledge. Those with a genuine homosexual orientation subconsciously feel compelled to maintain an emotional distance in their homosexual encounters and thus struggle against the search for love and intimacy which, besides the press of sexual desire, motivated these encounters in the first place.


The "homosexual denial," as some might call it, is facilitated by Indian culture in many ways. A man's behaviour has to be really flagrant, such as that of the cross-dressing hijras to excite interest or warrant comment. Some find elaborate cultural defences to deny their homosexual orientation.

Sexual orientation is defined as an often enduring pattern of emotional, romantic and/or sexual attractions of men to women or women to men (heterosexual), of women to women or men to men (homosexual), or by men or women to both sexes (bisexual). Some people who have same-sex attractions or relationships may identify as “queer,” or, for a range of personal, social or political reasons, may choose not to self-identify with these or any labels.


The History of Lesbian, Gay, Bisexual and Transgender Social Movements

The Social movements, organizing around the acceptance and rights of persons who might today identify as LGBT or queer, began as responses to centuries of persecution by church, state and medical authorities. Where homosexual activity or deviance from established gender roles/dress was banned by law or traditional custom, such condemnation might be communicated through sensational public trials, exile, medical warnings and language from the pulpit. These paths of persecution entrenched homophobia for centuries—but also alerted entire populations to the existence of difference. Whether an individual recognized them, too, shared this identity and were at risk, or dared to speak out for tolerance and change, there were few organizations or resources before the scientific and political revolutions of the 18th and 19th centuries.


The growth of a public media and ideals of human rights gradually drew together activists from all walks of life, which drew courage from sympathetic medical studies, banned literature, emerging sex research and a climate of greater democracy. By the 20th century, a movement in recognition of gays and lesbians was underway, abetted by the social climate of feminism and new anthropologies of the difference. However, throughout 150 years of homosexual social movements, the leaders and the organizers struggled to address the very different concerns and identity issues of gay men, women identifying as lesbians, and others identifying as gender variant or non-binary. White, male and Western activists whose groups and theories gained leverage against homophobia did not necessarily represent the range of racial, class and national identities complicating a broader LGBT agenda. Women were often left out altogether.

Homosexual Transsexual

Homosexual transsexual is a term used by various psychologists, sexologists, and psychiatrists to describe trans women who are exclusively attracted to men, and less often trans men who are attracted to women. The term has become controversial. The term homosexual transsexual was defined by Kurt Freund in 1974, and is used by various sexologists and psychiatrists to describe trans women who are attracted to men though occasionally they use it to describe trans men who are attracted to women.


The concept of a taxonomy based on transsexual sexuality was first proposed by physician Magnus Hirschfield in 1922, and 7codified by endocrinologist Harry Benjamin in the Benjamin Scale in 1966, which was published in the influential book "The Transsexual Phenomenon". Harry Benjamin wrote that the researchers of his day thought that attraction to men, as a woman was the factor that distinguished a transvestite from a transsexual. They say, the transvestite, is a man, feels him to be one, is heterosexual, and merely wants to dress as a woman. The transsexual feels him to be a woman who is trapped in a man’s body and is attracted to men.


The Same-sex marriages are not legally recognised in India nor are same-sex couples offered limited rights such as a civil union or a domestic partnership. In 2011, a Haryana court granted legal recognition to a same-sex marriage, involving two women. After marrying, the couple began to receive threats from friends and relatives in their village. The couple eventually won the family approval.


Homosexuality was removed as a mental disorder from the DSM-II, the diagnostic manual published by the American Psychiatric Association, the most widely used diagnostic manual worldwide. Ego-dystonic homosexuality was retained as a diagnosis for those who are caused distress by their sexual orientation.


The Existing Situation of LGBT Rights in India

In India, Lesbian, Gay, bisexual and transgender (LGBT) community people may face legal and social difficulties not experienced by non-LGBT persons. Over the past decade, LGBT people have gained more and more tolerance and acceptance in India, especially in large cities. Nonetheless, most LGBT people in India remain closeted, fearing discrimination from their families, who might see homosexuality as shameful. Discrimination is still present in rural areas, where LGBT people often face rejection from their families and forced opposite-sex marriages. Sexual activity between people of the same gender is legal. Although same-sex couples are not legally recognized currently by any form, performing a symbolic same-sex marriage is not prohibited under Indian law either. In 2018, the Supreme Court of India decriminalised homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional. Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British during their rule in India.


Section 377 IPC, 1860

In the case of Navtej Singh Johar v. Union of India, the Supreme Court of India held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional that too unanimously, in so far as it criminalized consensual sexual conduct between adults of the same sex. Dancer Navtej Singh Johar filed the petition, which challenged the Section 377 of the Penal Code on the ground that there is a violation of the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.


The Overview of the decision

The Court overruled the decision taken in the case of Suresh Koushal v. Naz Foundation that had upheld the constitutionality of Section 377. The five-judge bench of the Indian Supreme Court unanimously held that Section 377 of the Indian Penal Code, 1860.

Also from the case of National Legal Services Authority v. Union of India, the court relied upon the judgment to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity. After that 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. The court 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)”. The intimacy between consenting adults of the same sex is beyond the legitimate interests of the state is the clear essence affirmed by the court and the sodomy laws violate the right to equality under Article 14 and Article 15 of the Constitution by targeting a segment of the population for their sexual orientation. Also, 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.


On behalf of himself and Justice Khanwilkar, Chief Justice Dipak Misra relied upon 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 the fundamental rights are fiercely guarded by the state. He further stated that the Constitutional morality would prevail over the social morality. It was conferred to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.

Justice DY Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect was to efface identities” of the LGBT community. According to him, the LGBT community will be marginalized from health services if Section 377 continues to prevail and also the “prevalence of HIV-AIDS will exacerbate”. He stated that not only must the law not discriminate against same-sex relationships; it must take positive steps to achieve equal protection and to grant the community “equal citizenship in all its manifestations”.


Justice Nariman gave his opinion by analyzing the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone”. There was no possible reason for the continuance of the law made in that era. 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 concluded his opinion. He also believed that direction to government and police officials to be sensitized to the plight of the community so as to ensure favourable treatment for the LGBT community.


Justice Indu Malhotra was the only lady judge on the bench and gave her opinion as she affirmed that homosexuality is “not an aberration but a variation of sexuality”. She stated that the right to privacy extends to “spatial and decisional privacy” and not only just confine it to the right to be left alone. She stated that the 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; by this she concluded her opinion.

CONCLUSION

The Supreme Court has dismissed a review petition seeking various civil rights, such as same-sex marriage, adoption and surrogacy for the LGBTQ community. A bench headed by Chief Justice Ranjan Gogoi referred to the five-judge Constitution bench verdict by which consensual gay sex was decriminalised and said that it was not inclined to entertain the review plea seeking other reliefs.


The court said that we are not inclined to entertain this petition after the decision of this Court in Navtej Singh Johar v Union of India decided on September 6, 2018, and dismissed the petition Sanjiv Khanna was also presiding. The plea had sought civil rights of the LGBTQ (lesbian, gay, bisexual, transgender, transsexual, queer) community as part of the basic human rights and said that these rights were not addressed in the apex court's judgement on Section 377 of the IPC which had criminalised consensual gay sex. It had sought recognition of their rights to same-sex marriages, adoption, surrogacy, IVF and directions so that the community can serve openly in the army, navy and air force.


The rights of LGBTQ are not recognised as part of human rights. Non Recognition of same-sex marriages (Indian Special Marriages Act, 1954), availability of adoption, surrogacy, IVF (for LGBTQ only) is violative of Article 14, 15, 19, 21, and 29. Discrimination solely on basis of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, and Air force Act.

"Other instances of indirect discrimination are not addressed in the Navtej Singh Johar case. People in the military are not allowed to serve openly. Heterosexual people end up marrying LGBT people, end up consummating marriage with them, which harms heterosexual people most. Gay women have it worst," the plea had said.


There is no uniform or objective definition of 'carnal intercourse against the order of nature' exists and it is just the people defining what they want or as suitable to them. The definition can be subjectively interpreted to exclude or include, it can be fanciful or imaginary, oppressive in nature depending upon whom argues the case, and it’s subjective.

Both same-sex and opposite-sex relation is a consequence of people's private attractions or motivations. While they are similarly circumstanced, they are treated unequally i.e. marriage between heterosexuals in an opposite-sex relation is recognised while it is not recognised for homosexuals in a same-sex relationship.


After the judgement given by the Supreme Court which decriminalizes Section 377 of the Indian Penal Code, homosexual and transsexual marriages are seen in India but are not legal in nature the homosexuals and transsexuals in our country are getting a very different treatment from the society which makes them go through numerous unnoticed faux paux. Are homosexuals and transsexuals marriages in our country considered to be as normal as other marriages?


On the historic day of 6th September 2018, India's apex court struck down a colonial-era law that made gay sex punishable by up to 10 years in prison, a landmark victory for all the gay rights that one judge said would “pave the way for a better future”. It was a small victory towards the bigger issue of the society i.e. mindset of the people. Time Out, in Delhi, has a dedicated column covering gay events in Delhi every week. The LGBT people have increased access to health services and social events.


By Archit Shukla

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