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Homosexuality in India: Better Late Than Never
Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?
~ Pulitzer Prize nominated author Ernest Gaines
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Section 377 has become a weapon in the hands of the police to harass those who have alternative sexual orientations. The IPC which was drafted in the 19th century is bearing Sections like 377 which are completely obsolete and repugnant to modern emerging trends. In an age where there is growing acceptance of the idea that LGBTs (lesbian, gay, bisexual, transgendered) must be allowed to live in dignity and respect, it is shame that India cannot bring itself to legalise gay behaviour writes Amit Kumar Sinha.
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Historical Background of Homosexuality
The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct. Before this even in England, homosexuality was crime, but they reformed their law according to need and want of their society. Lord Macaulay drafted Indian Penal Code, 1860 and introduced it in 1861. But we are still bearing the odds of S. 377 and IPC, a code which was drafted approx 150 years ago. Ironically, while the British drafted Section 377 of the IPC, while replacing a tolerant Indian attitude towards sexuality with a highly oppressive one, this law was repealed in the UK.
Homosexuality is not a disease or mental illness that needs to be, or can be, 'cured' or 'altered', it is just another expression of human sexuality. Homosexuals are as normal as ‘you’ and ‘me’. Yet, just because they love ‘their own kind’, they are ostracised and hounded by the law. And branded as ‘queers’ and ‘aberrations’ — precisely what they are not. Homosexuals are normal humans attracted to their own gender. Relationships are defined by comfort levels and not societal sanctions, “Like heterosexuality, homosexuality is an orientation which is not unnatural. The world accepts this orientation; society is changing.’’ What is not changing is the legal mindset in India. The Manu Smriti, an important Hindu law code, prescribes punishments for certain instances of male and female homosexuality. If a stri [adult woman] was found having sexual relations with a kanya [unmarried girl], for instance, her "head should be shaved immediately or two of her fingers should be cut off, and she should be made to ride on a donkey." If two kanya have sex, each "must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod." For Brahmanas and twice-born men, "causing an injury to a priest, smelling wine or things that are not to be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste" In the same chapter, the atonement for twice-born men is a ritual bath: "A twice-born man who has intercourse with a male, or with a female in a cart drawn by oxen, in water, or in the day-time, shall bathe, dressed in his clothes."
Here again, it can be noticed that the proscriptions are specifically for brahmana and twice-born males; there is no mention in the Manu Smriti of punishment for homosexual behavior between males of the other classes. There are other ancient Hindu/Sanskrit texts that refer to homosexuality. The Sushruta Samhita, for example, a highly-respected Hindu medical text dating back to at least 600 B.C., mentions two different types of homosexual men (kumbhika - men who take the passive role in anal sex; and asekya - men who devour the semen of other men) as well as transgenders (sandha - men with the qualities, behavior and speech of women). It also states that men who behave like women, or women who behave like men, are determined as such at the time of their conception in the womb.
The Naz Foundation Judgement
The hon’ble Delhi High Court in deciding the case, firstly reiterated the test for any law which interferes in personal liberty, as set out in Maneka Gandhi v. Union of India, (1978) 1 SCC 248: that (i) there must be a procedure; (ii) that procedure must be tested against one or more of the fundamental rights conferred under Article 19 which are applicable; and (iii) it is also susceptible to be tested against Article 14, and must be right, just, fair and not arbitrary. Following were the main issues in this case:
(1) Right to Privacy
The Court noted that the Indian Constitution does not contain an explicit provision in relation to the right to privacy, however the Supreme Court has interpreted such a right on the basis ofArticle 19 protecting freedom of expression and movement, and Article 21 protecting the right to life and liberty. The Court made extensive reference to United States jurisprudence on the right to privacy as read into the Constitution, including Roe v. Wade 41 US 113 (1973) and Planned Parenthood of South-eastern Pa v. Casey 505 US 833 (1992). It then went on to consider the development of this right in India including the case of Kharak Singh v. The State of U.P. (1964) 1 SCR 332, which traced the right to privacy in India to the right to ‘life’ in Article 21 of the Constitution.
In addition, the Court referred to specific rights of persons of different sexual orientation in this respect by reference to the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, which the Court noted asserts the rights to equal enjoyment of rights of all persons regardless of their sexual orientation. Taking stock of these provisions, the Court concluded that Section 377 denies the dignity of such individuals criminalises their identity and violates their right to privacy which is protected within the ambit of Article 21 of the Constitution. In making this finding, the Court dismissed the arguments of the MHA that the decriminalisation of sodomy will lead to the increase of HIV/AIDS on the basis that there was no medical evidence to support this contention. The Court also noted that this claim contradicted the arguments made by NACO and the Ministry of Health and Family Welfare.
With respect to the public morality arguments put forward by the respondents the Court, citing the European Court of Human Rights jurisprudence of Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), stated that mere public disapproval or popular morality is not a sufficient basis for placing such restrictions on the enjoyment of fundamental rights. The Court asserted that the only morality which matters is Constitutional morality. The Court determined that the Constitution of India protects and promotes diversity and ensures an egalitarian society where freedom is no longer a privilege. The Court determined that criminalisation of homosexuality runs counter to that Constitutional morality.
(2) Article 14 and Equality
The Court reiterated the test set by Article 14 that any distinction or classification be based on an intelligible differentia which has a rational relation to the objective sought and is not unfair or unjust. Section 377, the Court said, does not distinguish between public and private acts, or between consensual and non-consensual acts thus does not take into account relevant factors such as age, consent and the nature of the act or absence of harm. The Court stated that such criminalisation in the absence of evidence of harm seemed arbitrary and unreasonable. In considering the legal principles imposed by Article 14 of the Constitution the Court took into account the Declaration of Principles of Equality “as current international understanding of Principles on Equality”. Drawing on Principles 1 (right to equality), 2 (equal treatment) and 5 (definition of discrimination) the Court emphasised the need to include sexual orientation among protected grounds of discrimination and build indirect discrimination and harassment into any consideration of the right to equality.
Thus, dealing with the argument that Section 377 was neutral, as submitted by the MHA, the Court stated that although the provision on its face is neutral and targets acts rather than persons, in its operation it unfairly targets a particular community, having the result that all gay men are considered criminal. This led the Court to conclude that Section 377 discriminated against a particular community in violation of Article 14 of the Constitution.
(3) Article 15 – Sex or Gender?
Article 15 was described by the Court as a particular application of the general right to equality under Article 14. The Court considered the petitioner’s argument that the reference to ‘sex’ in Article 15 should be interpreted as including sexual orientation on the basis that discrimination on the grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred to the Human Rights Committee’s decision in Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994) in which the Tasmanian Criminal Code which criminalised sexual acts between men, was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation.
On that basis the Court stated:
“We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”
The Court consequently found that Section 377 was unconstitutional on the basis of Article 15 of the Constitution. In its conclusion, the Court referred to the belief in inclusiveness which is ingrained in the Indian Constitution and explained that discrimination was:
“The antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual”.
To sum up, the Court declared that Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of the Constitution. By saying this, the High Court has proved that it is surely a custodian of fundamental rights of citizens of India. Emotions and pressure must not be considered while deciding a case. Thus giving such a landmark judgment under the pressure of billions is highly encomium. Legislative objective of Section 377 of penalizing "unnatural sexual acts" has no rational nexus to the classification created between procreative and non-procreative sexual acts, and is thus violative of Article 14 of the Constitution of India, 1950.
Hence the Delhi High Court in deciding that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. The decision like this was necessary to ensure that the LGBTs should not be made a matter of ridicule or discrimination or abomination. Even if we take the reference of Ajay Goswami case, where the hon’ble Supreme Court observed that contemporary social standards determine what is obscene and what is not. Again the High Court Judgment seems to be correct by validating the homosexuality.
Role of the Supreme Court of India in this issue
After the Delhi High Court had pronounced its judgement on 2nd July 2009, lots of hue and cry was made by various religious organisations as well as eminent religious and social leaders. As a result, a petition was filed by Suresh Kumar Koushal, an astrologer against the Delhi High Court Judgment in the Supreme Court of India. On 20th July, 2009 the Supreme Court heard Suresh Kumar Koushal’s Petition. This matter was mentioned in the Chief Justice’s court on 9th July, 2009 and the court had issued notices to parties including the Union of India and Naz Foundation.
On 20th July, 2009 the bench comprising Chief Justice K.G. Balakrishnan and Justice Sathasivam heard the matter for admission and grant of stay. Mr. Goolam Vahanvati, Advocate General of India, appearing for the Government stated that the government had taken a particular stand in the High Court and in light of the present situation it is yet to decide on the matter. However the government did not support the granting of interim stay and sought further time. The counsel for Suresh Kumar Koushal submitted that the decision of the Delhi High Court would lead to a rise in “gay parlours” and “gay prostitution”. He mentioned that instances of same sex marriages have also been reported.
Anand Grover appearing for Naz Foundation said that the Home Ministry had itself admitted that Section 377 of the Indian Penal Code was rarely invoked against adult consensual sex, therefore there would be no prejudice caused if the decision remains operative. He further argued that the Appellants had failed to plead that they were prejudicially affected and therefore had no Locus Standi. The Chief Justice however, said that in a public interest matter such as this, third parties may be heard. Anand Grover further stated that marriage and prostitution were unrelated to the judgment and had no bearing on the matter. He further argued that as far as male prostitution is concerned the Immoral Traffic (Prevention) Act is gender neutral and would cover this.
The Bench declined to grant an interim stay for it found that no adverse consequences would follow. Mean while, Tijarawala, private secretary to yoga guru Baba Ramdev and former Uttar Pradesh DGP and senior VHP leader B P Singhal also filed the separate petitions against the Delhi High Court judgment on 17 August, 2009 and 13 December, 2009 respectively. In both the attempts to get a stay against the Delhi High Court judgment decriminalising gay sex between two consenting adults drew a blank as the Supreme Court declined to stay the High Court judgment dated July two this year. The Division Bench comprising the then Chief Justice K G Balakrishnan and Justice P Sathasivam, however, issued notices to the Centre and Naz foundation on the application seeking stay of the operation of the impugned judgment till final disposal of the petitions.
The All India Muslim Personal Law Board also moved the Supreme Court challenging a Delhi High Court judgement on legalising homosexuality between consenting adults by filing a petition on 2nd February, 2010. The AIMPLB in its petition has contended that Gay sex is against the principle of nature and will lead to sexual corruption in society and may also increase the incidents of people contracting serious ailments like cancer and Aids. However, the gay community has finally found its lone supporter in noted film director and Rajya Sabha Member Shyam Benegal, who has approached the Supreme Court in support of Delhi High Court judgement, legalising an act of homosexuality between two consenting adults. Mr Benegal, in his petition filed on 22nd February, 2010, has contended that there was nothing wrong and illegal in the High Court ruling because no FIR can be registered without a complaint and the High Court ruling clearly implies if either of the party complains, then only gay sex would be an offence. Several petitions including that of Yoga Guru Baba Ramdev are still pending in the Supreme Court.
Role that the Apex Court could play in this matter
Taking the reference of latest development on the homosexuality issue in US, where the US Supreme Court has allowed same sex marriage in Washington DC and Chief Justice John Roberts of the US Supreme Court rejected a request from opponents of gay marriage to put on hold a new law that allows same-sex couples to wed in Washington, DC on 3rd March, 2010. And also the reference of the landmark judgment of the US Supreme Court in Lawrence v. Texas would certainly guide the Supreme Court of India in this regard. Early sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally, whether between men and women or men and men.
Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. In-stead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. In his dissenting opinion in Bowers Case Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process.
Justice Kennedy in Lawrence v. Texas delivered the opinion of the Court:
“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” In this respect, the Supreme Court should contemplate not only moral values and cultural integrity of the country before deciding the matter on merits but also the liberty and freedom of each individual in the country. There is need to keep state away from the personal life of the people. Right of privacy also needs to be broadening its scope and ambit in regard of the homosexual activity.
Section 377 vis-à-vis Article 21 of the Indian Constitution
Section 377 of IPC violates the constitutional protections embodied in Articles14 and 21. It suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community thus infringing their right under article 14. It also unreasonably and unjustly infringes upon the right of privacy which is sine qua non to article 21. The expanded scope and ambit of the right to life and personal liberty enshrined in Article 21 sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights. Thus different sexual expressions or orientations automatically come within the ambit of expanded right to life and personal liberty.
At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others. Hence even if homosexuals have their own private will to marry with a same sex person and alternative sexual orientation, they have the right to live with dignity in society. The expression "dignity of the individual" finds specific mention in the Preamble to the Constitution of India. The life Homosexuals are as dignified as any other citizen of India.
Section 377 also conveys the message that homosexuals are of less value than other people, it demeans them and unconstitutionally infringes upon their right to live with dignity. Section 377 IPC also creates structural impediments to the exercise of freedom of speech and expression and other freedoms under Article 19 by homosexuals or gays and is not protected by any of the restrictions contained therein. The society must accept them as a part and parcel of it and S. 377 of IPC should have been repealed much earlier as it was creating hurdles for homosexuals to live a dignified life. After the Naz Foundation Case surely the homosexuals would be able to live a dignified life. Furthermore, morality by itself cannot be a valid ground for restricting the right under Articles 14 and 21. Public disapproval or disgust for a certain class of persons can in no way serve to uphold the constitutionality of a statute.
In any event, abundant material has been placed on record which shows that the Indian society is vibrant, diverse and democratic and homosexuals have significant support in the population. Courts in other jurisdictions have struck down similar laws that criminalise same-sex sexual conduct on the grounds of violation of right to privacy or dignity or equality or all of them. Issues regarding Right to Privacy in India were raised in Kharak Singh v. State of Uttar Pradesh. The Question was whether Right to Privacy might be implied from existing Fundamental Rights in the Constitution of India, 1950, Articles 19(1)(d), 19(1)(e) and 21. The majority opinion was that our Constitution does not in express terms confer any such right on the citizens. Minority opinion (Subba Rao J.) was in favour of inferring right to privacy from right to personal liberty under the Constitution of India, 1950, Article 21.
This right again came for examination before the Supreme Court of India in Govind v. State of Madhya Pradesh, and this time Supreme Court took a more elaborate view and accepted a limited right to privacy as an emanation from Articles 19 (1)(a), 19 (1)(d) and 21. It was also said that the right is not absolute. So, reasonable restriction may be imposed on this right. These restrictions must be the same as are provided under the Constitution of India, 1950, Article 19, clause 2 (2). But in Unni Krishnan v. State of Andhra Pradesh, the Hon’ble Supreme Court of India took a bigger step and interpreted the expression Personal Liberty in its widest amplitude and gave a list of rights that may fall under the Constitution of India, 1950, Article 21. Thereby Personal Liberty was held to include Right to Privacy.
It was rightly declared by the Apex Court in Mr. X v. Hospital Z , wherein the scope of right to privacy was re-examined and it was declared that the right to privacy is an essential component of right to life. Thus it is not within the constitutional competence of the State to invade the privacy of citizens live or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interests “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform to the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity."
Homosexuality in different jurisdictions
The Netherlands in 2001 was the first country to legalize same-sex marriages, with the first marriages performed in the Amsterdam city hall on April 1, 2001. Since then, same-sex marriages have been recognised legally by Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009) and Sweden (2009).
(1) Asia
Japan:
On March 27, 2009, it was reported that Japan has given the green light for its nationals to marry same-sex foreign partners in countries where gay marriage is legal, a justice ministry official said Friday. Japan does not allow same-sex marriages at home and has so far also refused to issue a key document required for citizens to wed overseas if the applicant's intended spouse was of the same gender. Under the change, the justice ministry has told local authorities to issue the key certificate -- which states a person is single and of legal age -- for those who want to enter same-sex marriages.
Israel:
On November 21, 2006 the Supreme Court of Israel ruled that five same-sex Israeli couples who had married in Canada were entitled to have their marriages registered in Israel.
(2) Europe
Same-sex civil marriages currently are legally recognized nationwide in Belgium, the Netherlands, Norway, Spain and Sweden. These five countries treat married same-sex couples and married opposite-sex couples in the same way, also with respect to adoption. A poll conducted by EOS Gallup Europe in 2003 found that 57 percent of the population in sthe then 15-member European Union support same-sex marriage. The support among the member states who joined in 2004 is lower (around 28 percent), meaning that 53 percent of citizens in the 25-member EU support legalising same-sex marriage.
On 18 November, 2004 the United Kingdom Parliament passed the Civil Partnership Act, which came into force in December 2005 and allows same-sex couples to register their partnership. The rights and duties of partners under this legislation are almost exactly the same as for married couples. An amendment proposing similar rights for family members living together was rejected. The press is widely referring to these unions as "gay marriage."
(3) United States of America
Quick facts:
- Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California, Iowa, Maine, Vermont, New Hampshire
- Recognizes same-sex marriages from other states: Rhode Island, New York, District of Columbia
- Allows civil unions, providing state-level spousal rights to same-sex couples: Connecticut, Vermont, New Jersey, New Hampshire
- Statewide law provides nearly all state-level spousal rights to unmarried couples (Domestic Partnerships): California, Oregon, Washington, Nevada
- Statewide law provides some state-level spousal rights to unmarried couples (Domestic Partnerships): Hawaii, Maine, District of Columbia, Wisconsin
In November 2003, the Massachusetts Supreme Judicial Court ruled that barring same-sex couples from civil marriage was unconstitutional. In October, 2006, the New Jersey Supreme Court ordered the legislature to redefine marriage to include same-sex couples or to establish a separate legal structure, such as civil unions, to give same-sex couples the same rights as heterosexual marriage couples. New Hampshire passed legislation authorizing civil unions, which will take effect on January 1, 2008. On May 15, 2008, the California Supreme Court ruled that same-sex couples should have the right to marry.
The Iowa Supreme Court rules that banning same-sex marriage is unconstitutional. The ruling takes effect immediately and marriages can be performed beginning April 24, 2009. Vermont is the first state in which legislature, not the courts, authorized same-sex marriage. In the US, the court held that barring same-sex couples from marriage violates the equal protection provisions of the Iowa Constitution. Equal protection requires full marriage, rather than civil unions or some other substitute, for same-sex couples.
In Lawrence v. Texas , holding the Texas sodomy laws as unconstitutional, the US Supreme Court reversed its earlier decision in Bowers v. Hardwick (supra). Kennedy, J., who delivered the opinion of the Court, said:
"....It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. ...... The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code."
(4) Africa
South Africa:
In South Africa, the courts have led the way towards creating an environment where lesbians and gays are treated equally. In November 2006 the government of South Africa passed the Civil Unions Act, allowing for the "voluntary union of two persons, which is solemnized and registered by either a marriage or civil union". The law allows for churches to refuse performing civil unions. Several same-sex couples are already legally recognized as married, based on the definition of "spouse" in South Africa's Immigration Act of 2002.
Why Homosexuality should be legalised?
The culture of marriage has changed over the years and that recognizing same-sex marriage is just another change. A common example given is the change in the status of the woman partner, in that marriage is now seen as a union of equals. But that change goes to a collateral feature of marriage, not its essential nature or essence as recognizing same-sex marriage would. In short, these two changes are not analogous; rather, they are fundamentally different in kind. Advocates of same-sex marriage also argued that restricting marriage to opposite-sex couples based on society's need for an institution that symbolizes the inherently procreative relationship between a man and a woman, means that opposite-sex couples who cannot or do not want to have children should be excluded from marriage, or, more extremely, that only a man and a woman who produce a child should be allowed to marry.
The argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. Should heterosexual couples over 50 not be allowed to marry as they cannot produce kids either? If two people love each other and want to unite their destinies, then it is a beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact" does not matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal belief and morality, with which the government has no business to interfere.
Yes to Same Sex Marriage: Different sexual expressions or orientations automatically come within the ambit of expanded right to life and personal liberty as this right also include provision for future developments. Right to equality as well as right against any discrimination based on sex would also be violated in absence approval of homosexuality. Marriage is more than a legal status. It affects many things in society such as tax filing status, joint ownership of property, insurance benefits, and agency law. It affects critical medical decisions. For example, if one member of a gay couple that has been together for 20 years gets critically ill, visitation may not even be allowed since the other isn't considered a "spouse or immediate family member". Also, critical medical decisions must often be made when one person is incapacitated; e.g. should a certain surgery be done or not? It is completely unfair to deny these privileges to people because their relationship doesn't fit the state's definition of one. An overwhelming amount of research has been done showing that homosexuality has a biological causation; not a genetic one, but a biological one.
Epilogue
Today, homosexuality is recognised across the globe, with the Netherlands being the first country to permit marriage for gay and lesbian couples. While the UK has passed legislation recognising gay relationships, events expressed the express the essence of being homosexual such as Mardi Gras in Sydney, Midsummer in Melbourne, Gay and Lesbian Pride in Johannesburg, Women’s Celebration Week in Greece, and the Gay and the Lesbian Film Festival in Lisbon. Yet, India remains untouched though literature drawn from Hindu, Buddhist, Muslim, and modern fiction testify to the presence of same-sex love in various forms. Ancient texts such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality. India, with its overt emphasis on reproduction, has made same-sex love taboo. But with society becoming permissive about homosexuals, the law must be in step with the times.
If laws are supposed to represent socially-acceptable dos and don’ts, then a new mindset is the need of the hour. Otherwise, normal human beings will continue to suffer inhuman exploitation just because nature has nourished them with the need to be different. In this regard the Delhi High Court Judgment regarding homosexuality in Naz foundation case is highly rejoicing. When the court said that “Any kind of discrimination is anti-thesis of right to equality”, it thus decriminalizes homosexuality, while allowing plea of gay rights activists for decriminalization of homosexuality, and it turned out to be a benevolent to lakhs of homosexuals in India.
Thus India took a giant, albeit belated, step towards globalisation on 2nd July, 2009 when the Delhi high court delivered a historic judgement to amend a 149-year-old colonial-era law — Section 377 of the IPC — and decriminalise private consensual sex between adults of the same sex. It is the biggest victory yet for gays rights and a major milestone in the country's social evolution.
The issue of concern has been that S. 377 in an attempt to criminalize unnatural sexual relation, invariably draws in homosexuality. Therefore the current decision of the Delhi HC, by decriminalising the offence envisioned in S. 377, salvages the legally handicapped group of homosexuals. Hope that the Section 377 of the Indian Penal Code would be either quickly repealed or suitably amended. Since the case is in Supreme Court, approving same-sex relationships would be commendable and beneficial not only to society but the whole nation in general. However the real emanation is for the time to prove.
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| AMIT KUMAR SINHA is a 3rd year student pursuing B.A. LL.B (Hons) from Hidayatullah National Law University, Raipur. |
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