Constitutional laws in India

Homosexuality: Questions on Basic Facets of Human

Written by: Arunima Jha - University of Petroleum And Energy Studies
Constitutional Lawyers in India
Legal Service
  • Updated and Published on 23rd May, 2018

    The sexual attraction or the romantic behaviour among people belonging to same sex group leads to homosexuality. It could be either situational or enduring disposition. As a sexual orientation, homosexuality is considered to lie within the heterosexual-homosexual continuum of human sexuality, and refers to an individual’s identity based on those attractions and membership in a community of others who share them. Homosexuality is found in many animal species. It’s really difficult to determine accurately the prevalence of homosexual nature among the human beings. However research and studies suggest between two and twenty percent of the population exhibits some degree of homosexual tendency, though in many earlier cultures homosexual relations were highly prevalent.

    One of the most important point of inclination of our debate is that homosexuality is inborn and its immutable in nature. And in this form only it is widely accepted by the public, provided they are convinced of the fact that the homosexuality is inborn.

    Neuroscientist and homosexual Simon Levay stated: "...people who think that gays and lesbians are born that way are also more likely to support gay rights."

    Legal definition of homosexuality defines it as a sexual contact and between two persons of the same sex as man and man or woman and woman. However outside legal aspect of homosexuality, it has a much wider perspective admitting not only attraction but also considering the concept of sexual attraction or inclination towards the same sex member.

    The term homosexuality was not developed until the late 19th century. Traditionally the law in regards to homosexuality or those practising it, homosexuals, has focussed on sodomy (Intercourse via the anus, committed by a man with a man or woman) as the crime, not homosexuality.

    It was held by the U.S. Supreme court in Browers v Hardwick 478 US 186 that “prescriptions against sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilisation. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the king’s courts, the first English statute criminalizing sodomy was passed. Blackstone described “the infamous crime against the nature” as an offence of deeper malignity than rape, heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.”

    Major and apparently irreconcilable conflicts exists in North America over equal rights and protections for GLBT persons (gays, lesbians, bisexuals, transgendered individuals and transsexuals), including the right to marry. Many of them are even working towards this culture which involves that persons of all three sexual orientations (heterosexual, bisexual and homosexual) and various sexual identities (cisgendered, transsexual and transgendered) are accepted, valued and given equal rights and protections. Homosexuality, bisexuality and heterosexuality are recognized as unchosen, natural, normal and fixed sexual orientations in adulthood.

    In American culture what we find is homosexuality is not directed, but it prohibits non procreative sexual activity more generally. It does not suggest the approval of homosexuality in general but tends to show that this particular form of conduct was not thought of as a separate category like conduct between heterosexual persons. The absence of legal prohibitions focusing on homosexual conduct in American society may be explained by the fact that according to some scholars the concept of homosexual as a distinct category of person did not emerge until the late 19th century.

    In 1993, M. Baron wrote in BMJ (British Medical Journal) the following:
    Some cultures - for example, the Assyrian and Graeco-Roman - were more tolerant of homosexuality. The behavior was practiced openly and was highly prevalent. Sexual patterns are to some extent a product of society's expectations, but it would be difficult to envisage a change in the prevalence of the genetic trait merely in response to changing cultural norms.

    In regards to the issue of homosexuality and choice, given the existence of ex-homosexuals and given the existence of human cultures where homosexuality has apparently not existed, the position that homosexuality is ultimately a choice in individuals or at the very least can be a choice in individuals has strong evidential support. In short, there is a strong argument that one can leave homosexuality. In addition, given that the homosexual population has significantly higher rates of many diseases and the homosexual population also has significantly lower rates of various measures of mental health it can be strongly argued that engaging in homosexual acts is a bad choice for individuals. Another other factor that makes engaging in homosexual acts a bad choice for individuals is the significantly higher rates of domestic violence in homosexual couples. In addition, according to experts homosexual murders are relatively or quite common and often homosexual murders are very brutal. Also, the homosexual population has a greater propensity to engage in illegal drug use.

    The classic Indian response to the issue of homosexuality is that We don't have any". We Indians have homosexual acts in our communities but still nobody is ready to accept it. Its kind of tolerating the homosexual activities in Indian communities. But if we look the existing scenario in our Indian society, what seems the reason behind this contradictory stance? To answer this question we need to look into the social construct of sexuality in our Indian society.

    In India, Section 377 of the IPC states that ‘Whosoever has carnal intercourse voluntarily against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or imprisonment for a term which may extend to 10 years, and shall be liable to fine’. With the adoption of the law in 1860, by the British Government, homosexuality became illegal in India. The punishment for engaging in homosexual relation can go up to lifelong imprisonment. As far as the enforcement of the homosexuality laws in India is concerned, the country has hardly noticed any convictions in the last 20 years.

    Although being an Indian and staying in the Indian society we do not support the concept of homosexuality, but nonetheless the concept is stemming out with the liberalization of our society. One can notice gay night life mushrooming at night in metropolitans like Delhi, Mumbai and Bangalore. Infact, Time Out (a fortnightly magazine in Delhi) has a separate column, in which the gay events happening in the city are covered.

    In a landmark judgment, the Delhi High Court on Thursday struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution.

    A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its 105-page order said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], Article 14 [Right to Equality before Law] and Article 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.

    “We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15,” the judgment said. However, the court clarified that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

    The judges also said that by adult they meant “everyone who is 18 years of age and above.”
    “A person below 18 would be presumed not to be able to consent to a sexual act,” the judgment said.
    The Bench further said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which, we believe, removes a great deal of confusion.”

    The judgment also made it clear that it would not result in re-opening of criminal cases involving Section 377 that had already attained finality.
    The verdict came on a PIL plea by Delhi-based non-government organisation Naz Foundation that the Section 377 provision criminalizing sexual acts between consenting adults in private violated Articles 14, 15, 19 and 21 of the Constitution. The Foundation works among sex workers in Delhi.

    But the situation is not the same if we get down to small cities of India or if we look at the rural section of Indian society. As we delve deeper in the Indian scenario what we find is that in absence of the family support or the societal support the homosexual couples prefer keeping the truth to themselves hiding in the closet. Sometimes it becomes very difficult for them to accept themselves the way they are and it also results in them getting married to the opposite sex out of family pressure. As a result the marriage is never successful and relation gets really frustrated.

    Though the honorable High Court of Delhi has passed its judgement in favour of the homosexuals but the Indian community has not accepted homosexuality till date. It is gaining recognition gradually. Bollywood has been one of the main contributors behind it in India. Now days even the media is supporting a lot these homosexuals to get proper recognition in the country.

    Non Government Organizations (NGOs), National Aids Control Organization (NACO), Union Ministry of Women and Child Development, Law Commission of India and Planning Commission of India have demanded legalization or at least de-criminalization of homosexuality, in view of the need to control HIV/AIDS. Whether they get successful or not is left to be seen.

    It is no surprise then that the notion of a homosexual liaison as an equal alternate to a heterosexual one doesn't exist outside a small set of urban Indians; that would threaten the social order. Instead, the Indian response is: As long as men fulfill their traditional obligations to family and progeny, their homosexual acts are (uneasily) tolerated. Notably, according to the Kakars, the vast majority of even those who continue having sex with other men do not see themselves as homosexual. "Even effeminate men who have a strong desire to receive penetrative sex are likely to consider their role as husbands and fathers to be more important in their self-identification than their homosexual behavior." Lesbian activity is invariably seen as a response to sexually frustrating marriages.”

    The Lesbian, Gay, Bisexual and Transgender (LGBT) community in India has made notable strides in urban milieus. Hundreds marched in Pride parades this year. But progress simply means progress has been made. Great disparities remain and attitudes in this deeply conservative country are slow to change.
    We are still not in a perfect position to adopt the concept of homosexuality. Yog guru like Baba Ramdev has given the word that homosexuality a ‘disease’ which he can cure through yoga. According to Ramdev one who stays away from the parents and keeps changing their sexual partner every month they will not have morals. Justice JN Saldanha once used the Section 377 IPC to give justice to a 10-year-old victim of sexual abuse and award a 10-year jail term and a fine of Rs 25 lakh to a godman. Saldanha says that though the Juvenile Justice Act and the Children's Act exist to protect children, these do not have stringent provisions to protect children from sexual abuse.

    He said though the case was confined to the Delhi High Court, it was fine now to talk about the Section in the past tense. The judgment has held it unconstitutional in the context of fundamental rights of freedom and equality. So, it becomes legally suspect for all courts and future cases, says the retired judge. If the case is to be taken as a moral victory for homosexuals, it is hardly one. There has been no case where this Section has been invoked against homosexuals or against homosexuals having consensual sex. But petitioner Naz Foundation claims that the law has caused 'blackmail, harassment and death of many lesbian, gay, bisexual and transgender people in India'.

    The Section has, in fact, come in handy when problems arose in consensual sex among adults. Justice Saldanha cited a case that he fought as a young lawyer in Mumbai nearly three decades ago for a young call girl who had complained against an Arab for injuring her by sodomising her. It was consensual but the man turned out to be having homosexual inclinations. She wanted to be compensated. Finally, he had to pay her a compensation of about Rs 2 lakh.

    Again, if two consenting adult men or women have sex and one of them contracts HIV, the removal of the Section leaves even homosexuals with nothing. Purushottaman Mulloli, who filed an intervention petition in the eight-year-old case, originally filed by Naz Foundation, said the whole intent of the case was to project the fact that homosexuals were a high-risk group and needed protection through NGOs. The Section, he said, obstructed this. He says if courts approve everything that is consensual, then why ban Sati, mercy killings or suicides?

    He said the government promised to consider the case sympathetically even before the ruling was given and now the ruling had thrown out a law that never really hurt homosexuals. If police harass gays, it is police who need reforms, he says.

    His petition questions the premise that homosexuals are high risk. He says the judgment will marginalise them further and help vested interests project them as high-risk groups, more likely to contract AIDS than others, and thus expose them to social stigma.

    There are misgivings among religious groups about the idea of legalising homosexuality. But it is a fact that gays need to exist as much as others. The dilution of Section 377 has, however, achieved this in a fashion that also removes essential legal safeguards for both minors and homosexuals.

    The Indian Council of Medical Research (ICMR) has enacted the Assisted Reproductive Technology (Regulation) Bill, 2008 (Bill), which, in all likelihood, will become a law in the parliament.

    However, there are certain confusing definitions in the bill which need further explanation and clarifications. Section 32(1) of the Bill, which is the enabling provision, states: That subject to the provisions of this Act and the rules and regulations made there under, Assisted Reproductive Technology (ART) shall be available to all persons including single persons, married couples and unmarried couples.

    Therefore, it becomes pertinent to understand that how a couple is defined here. Under Section 2(e) of the Bill, a couple means: The persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in.

    This definition is inclusive in nature and covers all kinds of couples, whether they are homosexuals or not. The effect of the definition appears to do away with the legal limitation imposed by Section 377 of IPC, and is not just a mere co-incidence of legal drafting.

    A recent news piece that has caught everyones eye is that an Israeli homosexual couple has got a surrogate child from India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind. Whether the homosexuals are allowed to get a surrogate child from India?

    Liberty, justice, and peace may very well be the greatest standards that we seek. To deny a man his right to express himself, to ban one sexual orientation or one form of art, is to commit a crime against liberty and justice. There are still people in prison today in countries like U.S, for what the state has so lovingly called "crimes against nature." Those who have engaged in Homosexual, or even taboo sexualities, have been imprisoned for up to years. This is not some foreign activity of centuries past. Rather, it is something that the government has actively imprisoned people for in the past centuries. It is a draconian and arcane method of government, as it is opposed to all principles of liberty, justice and peace. It is a violation of the mind's need for freedom, of the heart's dreams of tranquility.

    To deny a man his right to sexuality is just as profane an action it is to deny a man his right to expression. Some may claim that Homosexuality is immoral because it is based on recreation and not procreation, going against the purpose of sex organs altogether. Homosexuality is not immoral, and this claim is made on the fact that it is not responsible for causing any suffering, nor has it committed any crime.

    The principle of sexuality, as I have gone over, is an inherent part of something even more larger. The creed that all conscious beings are deserving of affection and fairness, the sum of every humane organ in the bodies of intimacy, the belief that justice is not vestigial, that to maximize happiness is the greatest of all deeds -- that is where the principle of sexuality comes from. Free Love and freedom of sexuality are founded in the same reason why we sympathize with each other's suffering, it is founded in the same belief that we ought to respect each other, it is the same idea that humaneness contains more rationality and beauty than any other ideology. Further if we look at article 21 of the Indian constitution it includes right to privacy. Hence we can conclude that if the state has no say in the birth of an individual, why it should interfere in someones orientation, which is entirely his/her right, right to lead his personal or private life.

    Also Read:
    # Same Sex Law
    # Ranbow Rights:
    The decision of the US Supreme Court in Obergefell et al v. Hodges, Director, Ohio Department of Health, et al (2015) US No. 14-556, regarding the constitutionality of same-sex marriages is a welcome one.
    # Decriminalization of consensual sex between adults
    # Law & Morality Debate in the Context of Suicide & Homosexuality
    # Same Sex Relationship - Time for Legal Recognition in India
    # Decriminalization of Homosexuality In India
    # Same Sex Marriage: Is It The Time For Legal Recognition
    Right of Foreign Homosexuals to have a Surrogate Child in India:
    A recent news piece that has caught everyone’s eye is that an Israeli homosexual couple has got a surrogate child from India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind.
    Recognition of Homosexuality In India-Its Time:
    The marriage of Wendell Rodericks, one of India’s prominent fashion designers and his French gay partner Jerome was solemnized at the French Consulate in Goa according to the Pact Civil de Solidarite (PACS).

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