“Race, gender, religion, sexuality, we are all people and that’s it. We’re all people. We’re all equal” – Connor franta
Freedom is an essence of life, every battle ever fought in history had one common end to achieve that is freedom. Law, enactments, and provisions are made to protect and secure democracy. India has now enjoyed 72 years of freedom yet there are few individuals who were subjected to live in denial because accepting themselves would make them commit a criminal offence. The sexuality of a person is not openly discussed in our society, whether call it moral standards or double standards where society suggests to enjoy the freedom of every kind but never encourages it. Sexuality doesn’t define or changes the nature of a person it’s just a part of a personality. Indian society has formed a mind-set where only male and female relationship is regarded as a “normal relationship” which along with the course of time has formed a rock brain when the idea of male& male relationship or female & female relationship collides with that rock brain then the friction arises.
There is more than one sexual orientation, and each one of them is natural. When the male gender is sexually or romantically attracted to the female gender it is known as ‘heterosexuality’. When two persons of the same gender are romantically or sexually attracted to each other they are known as “homosexuals” which includes males who are attracted to males call themselves ‘gays’ and females who are attracted to females call themselves ‘lesbians’. People who are attracted to both genders are called “bisexuals”. Together lesbian, gays, bisexuals, and transgenders form the LGBT community. This community has lived in a closet for long and now deserves to be accepted openly in society.[1]
Homosexuality- an ancient concept for India
Homosexuality is a sexual preference not a disease and certainly, society cannot declare it unnatural just because it is not as common as heterosexuality. At present we live in a duplicitous society who swears to be proud of our history and culture but at the same time remain concealed about India’s rich sexual heritage. The misconstrued decency, morality and foreign invasion have clouded our liberal attitude towards different sexual orientations. We are unaware of our own broad-minded perception and practices that were advanced in the past as compared to present[2]. Sex, in general, was not considered as taboo and its ramification: homosexuality, lesbianism, and bisexuality were acceptable behavioral patterns. We can identify the presence of homosexuality in India through sources like images on temple walls, sacred narratives, and ancient law books. Most ancient temples are believed to be constructed in the sixth century of Common Era which finished around the fourteenth century when southern India puri and Trojan came into existence. The walls of such temples have beautiful sculptured images of god, goddesses, demons, warriors, lovers, priests, monsters, dragons, plants, and animals, among them there are some pictures which present society consider obscene and unnatural. We can find some visual evidence of homosexuality in the walls of khujaro temple of Madhya Pradesh, which depicts sexual relationships between man and man & woman and woman. US-based techie Hrishikesh Sathawane wrote in DNA: [3]“If you think homosexuality is a western concept, go to Khajuraho… It is debatable if these things were socially acceptable in India, but they existed.” according to ancient studies of architecture, a religious structure is believed to be incomplete unless its walls depict something erotic, for sensual pleasures (Kama) which is as much an expression of life as are righteous conduct (dharma), economic endeavors (artha) and spiritual pursuits (moksha).
Interpretations and assumptions aside, these architectural images tell us about the existence of homosexuality in India which later the colonial rulers termed as ‘unnatural’ intercourse. Ancient Indian methodology has more examples to a man turning into women or women turning into a man. In the Skanda Purana, two Brahmins desperate for money disguise themselves as a newly married couple and try to delude a pious queen in the hope of securing rich gifts. But such is the queen’s devotion that the gods decided to prevent her from being made a pawn; they turn the Brahmin dressed as a bride into a real woman. The two Brahmins thus end up marrying each other. One may interpret these tales as repressed homosexual fantasies of a culture. The mythological traditions of India never cast aspersions on homosexuality and lesbianism. One can see V S Sukhtankar and S K Belvalkar’s translation of Vedvyas’ Mahabharata at Bhandarkar Oriental Research Institute, Poona and find the passages which clearly state that Bhishma’s half-brother Vichitraveerya was a homosexual and his mother Satyavati had the knowledge of her son being gay. Seventeen major characters of Mahabharata were homosexual. Shakuni, Nakul and Ashvatthama didn’t conceal their sexual predilections. Similarly, Karna’s second wife Supriya, who preferred the ‘company’ of women more than that of men. Karna was aware of it and made no bones about it.[4] Amara Das Wilhelm’s book “Tritiya-Prakriti: People of the Third Sex“, compiles years of extensive research of Sanskrit texts from medieval and ancient India, and proves that homosexuals and the “third gender” were not only in existence in Indian society back then but that these identities were also widely accepted[5][6]. The 2nd-century ancient Hindu text Kamasutra contains a chapter “Purushayita” which mentions that women often marry other women to raise children together and were called “swarinis” and were openly accepted in all communities. The text further suggests that homosexual men could either be effeminate or masculine they were known to be in a relationship and also marry each other. The book also provides that according to the Vedic system there are eight kinds of marriages which include homosexual marriages between two gays and two lesbians which were classified under “Gandharva” or celestial variety which means “union of love which does not need parental approval”.
India has a homosexual history that cannot be ignored just because society at present chooses to be homophobic. Homosexuals exist but are believed to be non-existent, so now the question arises if India had this wide acceptance of homosexuals in the past then what happened that made homosexuals live in a closet?. The reason is, It was the British raj that criminalized homosexual activities which they regarded as “against the order of nature” under section 377 of Indian penal code which entered into force in 1861, this law was applicable to all British colonies because of their beliefs. The pleasure of all kinds were celebrated in India be it homosexual or heterosexual, it was British who criminalized it. It is the hatred that still exists in our society, we still cannot believe in our broad mindset, people with an oppressive attitude among society likes to corner people who are not like them.
With respect to Section 377[7] of Indian penal code (modeled on buggery act 1533) which provided to criminalize sexual activities that are “against the order of nature” amounted to discrimination on the basis of sexual orientation. Unfortunately coming from such rich heritage it took us 72 years of freedom to strike down this 160-year-old British colonial law. The law provided for “Unnatural offenses: 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.” To understand this section clearly we can say that section 377 1) criminalise homosexuality, 2) criminalises particular acts between heterosexuals, 3) criminalises sexual activities between humans and animals. [8]
STRUGGLE FOR ACCEPTANCE
The smoke fired 27 years ago, In 1991 when ABVA (AIDS Bhedbhav Virodh Andolan), a Delhi based NGO published a 70 page report “more than just a gay” revealing a shocking extend of harassment faced by homosexuals from the hands of police, the report also pointed out the discrimination faced by LGBTQ community through section 377. Further, the debate erupted when in 1994 Kiran Bedi IG of Delhi police refused to provide condoms to inmates after a medical camp where most of the prisoners were found to be involved in homosexual intercourse, stating that it would promote homosexuality ABVA filed a writ petition to provide condom in Tihar jail and challenged the constitutionally of Section 377, later the petition got dismissed in 2001. Thereafter in December 2001, Naz foundation a sexual health NGO working with gay men filed a PIL in Delhi high court against section 377 and legalisation of homosexuality[9]. The petition eventually got dismissed by Delhi high court in September 2004 assuming that there was no course of action and it is a purely academic issue which cannot be examined by the court, review petition was also rejected months later.
On February 2006, Naz Foundation filed a special leave petition, the supreme court observed that the matter is of public interest and deserve an impartial view, “Voices against 377”, an alliance of gender & child rights groups became a party to the petition, in the meantime ministry of Home Affairs filed an affidavit against decriminalisation of section 377 and National AIDS Control Organisation, under the ministry of health & welfare filed an affidavit suggesting that criminalization has delayed the effort to control HIV. Consequently, on 2nd July 2009 Delhi high court declares a landmark judgment in which court declared Section 377 violates Article14[10] of the Indian Constitution as it creates unreasonable classification and target homosexuality as a class. It also targets Article15[11] of the constitution as it prohibits any discrimination on the basis of sex and sex here is not only interpreted in the biological sense but also as a sexual orientation. The court also noticed that the mentioned section violates Article21[12] of the constitution which provides for the right to life which inherits right to health as it acts as an obstruction to the public by restraining HIV prevention efforts. The court declared Section 377 unconstitutional in respect of criminalising homosexuality and the rest of the provisions remain untouched.
The decision met out as a fresh start for the LGBT community in they could have started a new journey but the relief didn’t last long when later in the same year Suresh Kumar koushal a Delhi based astrologer and few others challenged the decision laid down by High court of Delhi in Naz foundation vs. NCT Delhi. Consequently, in December 2013 supreme court two bench judges of Justices G S Singhvi and S J Mukhopadhaya held that section 377 of IPC “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”. And further left the matters in the hands of parliament whether to delete or amend the aforesaid section. The court also addressed the LGBTQ community as a minority by concluding “that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and in last more than 150 years less than 200 persons have been prosecuted”. A review petition filed by Naz Foundation & others was also quashed by the Supreme Court.[13]
After this huge setback, the right to privacy judgment proved to be a ray of hope in which nine-judge bench criticised the “ minuscule fraction” argument of 2013 judgement and considered sexual orientation as an essential attribute of privacy. Later in the National Legal Authority vs. Union of India & others, Supreme Court constitutionally recognised the transgender as “third gender”, and provided them with the rights of marriage, inheritance & reservation under the OBC category. The transgender person (protection of rights) bill 2014[14] was passed. The parliamentary panel criticised that “While there is no shame in being gay, lesbian, bisexual, transgender or intersex of even straight, there is most certainly shame and dishonour in being a homophone, a transpose, and a bigot”. After which LGBTQ community fought back again in June 2016, Navtej Singh Johar[15], a sangeet natak academi awarded, bharatnatyam dancer and four others, filed a writ petition in supreme court challenging the constitutional validity of section 377, CJI Deepak Misra noted that “a section of people or individuals who exercise their choice should never remain in a state of fear” the bench ordered that the decision of Suresh Kumar Koushal vs. Naz Foundation[16] should be reconsidered, and directed the matter to a larger bench constituted by CJI.
On September 6th 2018, the five bench of Supreme Court led by CJI Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra decriminalised homosexuality by partially striking down section 377. Judgement recognised sexual orientation as a biological phenomenon and has discrimination on the grounds of sexual orientation violates fundamental rights. Supreme Court realised Section 377 of IPC was weapon to harass members of the LGBTQ community, resulting in discrimination. The Supreme Court in its judgment pronounced that discrimination on the basis of sexual orientation is a violation of Freedom of Expression, “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression, Supreme Court”. Furthermore, CJI Deepak Mishra put up some very inspiring quote in the judgement, “I am what I am. So take me as I am”. “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums.” Justice Indu Malhotra remarked that history owes an apology to the LGBTQ community for discriminating against and ostracising them. Also, Justice DY Chandrachud said, The LGBTQ community entitled to equal citizenship, equal rights under the Constitution. Finally, now the LGBTQ community is free from the closet after years of struggle and discrimination it’s their patience that has won to see this new sunrise full of hope and happiness.
On the whole section 377 was a scum to be in IPC and was violates the following:
- Article14 of the constitution which provides equality before law to everyone.
- Article15 of the constitution which provides that no one shall be discriminated against on the premise of caste, gender, and creed.
- Article19 which ensure freedom of speech and expression.
- Article 21 which ensures that ensures the right to life and liberty to any or all.
Judgement of new era
Apart from all the ancient history and never-ending struggle India still possess a homophobic attitude. There is a number of statements given by India’s prominent personalities that showed homophobia. Baba Ramdev, India’s yoga guru once argue a journalist not to “turn homosexual” as it is “a bad addiction” and also claimed that he could “cure homosexuality” through yoga. The vice president of Vishwa Hindu Parishad Om Prakash Singhal in 2013 judgment said “homosexuality is against Indian culture, against nature, and against the science. We are regressing, going back to back when we were almost like animals.” But it would not be fair to not to say that India is moving towards betterment, Lt Arun Jaitley boldly criticised the supreme court reversion on Delhi high court judgement by stating “the supreme court should not have reversed the Delhi high court order which de-criminalised consensual sex between gay adults” and “when millions of people in the world are having an alternative sexual preference, it is too late in the day to propound the view that they should be jailed.” The spokesperson of BJP shaina NC said “we are for decriminalising homosexuality. That is the progressive way forward”. Also, congress vice president Rahul Gandhi came forward in support of the LGBTQ community and stated “every individual has the right to choose, these are personal choices. The country is known for its freedom, freedom of expression, so let it be.”
Homosexuality has always been a topic that garners different yet debatable opinions some belief homosexuality to be is a choice but scientists have theorized that personal choice is not the real cause genetics and effect of prenatal hormones can be the real reason. Homosexual people are often treated as if they have a mental illness. There are many religious and non-religious groups who claim to cure homosexuality through conversion therapy, these therapies are considered to violate the ethical principles of International law. There are many horrific incidents of ‘corrective rape’ where lesbians were raped by men with the intention to convert them into heterosexuals. People of the LGBTQ community are often subjected to violence in different behaviour, harassment and discrimination on daily basis especially in work places. Even after decriminalization of section 377 Indian society is still indifferent to accept gays to be a part of normal societal relations. On estimation 8% of Indian’s population which is 104 million of people may belong to the LGBTQ community which is the largest in the world, which means 104 million of people are mentally struggling. And the primary solution to this is that parents need to stand up for their children, to accept them as they are, instead of feeling ashamed, along with it we as the responsible member of society needs to stand in support of LGBTQ community or rightly so just in support of fellow society member. There shall be proper education and counselling on gender identity, sexual orientation, civil rights at school and college level so that young adults can understand such behavioural patterns and themselves rather than struggling with complexity. Which would also lessen the incidents of ragging, bullying and indiscrimination in public or private sector.
Monsoon of 2018 gave India a new reason to celebrate but now the question is, in the country of billions how many are actually ready to come forward to celebrate. Mere recognition is not sufficient, homosexuals deserves more than just to exist. Non recognition of same sex marriages is also a violation of right to equality, non-discrimination, individual dignity and personal autonomy. For which at present petition has been filed in Kerala high court for which judgement is pending. Gay rights are human rights, which should extent to marriages, homosexual civil union, adoption and domestic partnership with the privileges that every legally and socially accepted marriage enjoys in India. The pride of queer community is the pride of India and its constitution.
[1] Shashi Tharoor, on gay sex, India has assumed an ancient position. Read the Kama sutra, www.scmp.com,16.10.2018
[2] Did Homosexuality exist in ancient India? http://devdutt.com,16.10.2018
[3] D.Kulkarni, if you think homosexuality is western, go to Khajuraho, www.dnaindia.com,16.10.2018
[4]S.Paul. (2018). In India. Homosexuality is not a taboo but a tradition. The free press journal.1352084.http://www.freepressjournal.in/featured-blog/in-india-homosexuality-is-not-a-taboo-but-a-tradition/1352084
[5] A.D.Wilhelm, Tritiya-Prakriti: People of the Third Sex,16-20,2010,978-1-4535-0316-4
[6]S.Ray, (2018), Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint, 12.10.2018 https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377
[7] Section 377,Indian penal code 1860
[8] Lawyered, Simplifying Section 377, the better India, 12.10.2018,https://www.thebetterindia.com/106813/section-377-indian-penal-code-simpler-words/
[9] Naz Foundation vs. Government Of Nct Of Delhi , AIR 1925 ,2009
[10] Art.14,Indian Constitution,1950
[11] Art. 15,Indian Constitution,1950
[12] Art.21,Indian Constitution,1950
[13] S.Nair, many ups and downs in battle against 377, Indian express, 5019604 https://indianexpress.com/article/explained/many-ups-and-downs-in-battle-against-ipc-section-377-homosexuality-lgbtq-5019604/
[14] The transgender person (protection of rights) bill 2015, Bill was passed by the upper house Rajya Sabha on 24 April 2014
[15] Navtej Singh Johar & Ors. Versus Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016,2018
D. No. 14961/2016
[16] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972, 2013
This article is authored by MAHIMA SANADHYA, student of BA.LLB at University College of Law, Mohanlal Sukhadia University, Udaipur.
Also Read – Struck Down of Section 377 of Indian Penal Code: An Analysis
