Homosexuality in India

Introduction:

Homosexuality is a term derived from the Greek word homos, which means ‘the same’. Homosexuality means sex drive oriented towards personal and sexual gratification with the same sex. Interestingly, in India sexuality holds a vital and central position from the very start and this can be traced in the ancient Indian text Kamasutra which is the world’s most ancient book written on human sexuality by Vatsyayana who’s a philosopher, in this text, there is a complete chapter dedicated on homosexual behaviors. 

Homosexuality in India or any other country and their prevalent legal systems is always a discussion of the utmost importance and a vital issue. Even though we see many countries legalizing it, we also have many legal systems that are against it and criminalizes it, calling it unnatural, prohibitory, and being and hence the concept is deprived, less talked upon, and is ignored. It’s treated as a taboo and many times also against nature and sentiments. Until recent times, in India, a similar pattern of ideas and thoughts was followed, when it came to homosexuality.

Legal Necessity

A concept with which such personal sentiments are attached, when it is considered as unnatural by society, affects an individual in a very different way and he can approach a court of law when required to protect his identity and choices from the trap of society. But if the same concept is negated and considered as unnatural by the law itself, is condemned by the law, which is the highest form of social control and restoring individual identity, the individual has no place to go for exercising his human right. Sexuality is a personal preference or identity of a person, and a human should not be ideally deprived of himself, of his personal life and liberty. Protection of personal liberty and right to life is granted by most ‘grundnorm’ of the legal systems, from all around the world.

India and Homosexuality

Homosexuality was criminalized in India since 1861, during English rule, when Britishers codified the law for India, and introduced, Indian Penal Code to us. This law prohibited carnal intercourse against the law of nature. It was codified under section 377 of IPC which speaks about unnatural offenses. And reads as following-

Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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 offense described in this section.

Takes of Indian Judiciary

In a recent historic judgment made by the Supreme Court of India on the 6^th of September 2018, it decriminalized section 377 of IPC and allowed gay sex amongst consenting adults in private. However, the section will continue to apply only in cases of bestiality, carnal intercourse with minors, and in cases of no consent. The judgment was subjected to LGBTQ (lesbian, gay, bisexual, transgender queer) community which is a taboo to Indian society. Ever since the inception of this section in the IPC in India, it was always treated as a barrier to homosexual relationships in India which condemned them. But this verdict gave these individuals a sense of inclusiveness, common identity amongst other people in society. Before this judgment, due to fear of non-acceptance and punishment, the people of this community which compromises of approx. 7-8% of the population, hid their faces in the mask of so-called natural and heterosexual population as they were immensely fearful of facing prejudice, discrimination, and impairment because of their sexual orientation or gender identity.

First Challenge

This colonial-era rule was firstly challenged by Naz Foundation and AIDS Bedhbhav Virodh Andolan approached the Delhi High Court instituting the original lawsuit to decriminalize homosexuality. After which, Delhi HC on 2^nd July 2009, declared that this section violated Article 21 of the Indian Constitution. Later, this ruling was overturned by 2 judge bench of Supreme Court on 11^th December 2013, saying that it was the parliament to take over the action over this issue, and not the courts. In 2015, a private member bill was passed by Shashi Tharoor, to decriminalize homosexuality, which was rejected and was voted against.

Final Judgement

 In 2018, this section was asked to be redressed by NS Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, and Ayush Kapoor. This case was passed to a 5 judge bench, constituting of CJI which passed the most expected recent judgment. The court recognized sexual orientation as a “natural and inherent”. During the case and all the hearings, gender rights activists, a community of LGBTQ people strongly asserted that articles 14 and 21 of the Indian Constitution which gives us the right to equality and right to life and personal liberty are violated strongly by section 377 IPC.

SC in its judgment mentioned that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.” The judgment included the words according to which the LGBTQ members can now enjoy their personal space without getting judged or penalized but there is still a lot in a veil. Like their rights to marriage, adoption, tax planning, and life insurance, etc. which will be questioned in the coming times.

Religious Perspective

In many countries including India, the traditions, cultures, teachings, and sense of acceptance amongst people and also their mental state mostly depends on religion and religious texts of that country.

The most used argument against the discussion of homosexuality is that this is a foreign concept, but if we go according to the saying of Rigveda which is one out of four pious texts of Hinduism, it contains a phrase, “Vikriti evam Prakriti” which translates as what seems unnatural is also natural. Also, the toxic section, which goes against the individuality of a human was not given to us by ourselves but bestowed upon us by the Britishers and not only western countries but many others have recognized homosexuality in recent times.

Conclusion

Decriminalization of Homosexuality in India is a dawn of a new era, where the people who were immorally harassed, discriminated, prone to violence are finally free to live their lives in their own and original capacities and based on their sexual choices. where  This has a long way to go and is a very important step toward constructing an inclusive society where a human does not lose his identity and is recognized with dignity and acceptance of who he is. We really cannot deny us to ourselves, we may hide, but never deny.