HOMOSEXUALITY AND ITS LEGALITY: AN OVERVIEW OF INDIA
Homosexuality refers to a sexual contract between two person of same sex as man and man or female and female. The word homosexual is etymologically Greek and Latin. Homosexuality, often called the third sex, has an unsettled legal and social status in India. While, we see rallies and public protests against the oppression of homosexuals in the society, we also see the homosexuals being looked down upon by a large number of members of the society. Along with bisexuality and heterosexuality, homosexuality is one of the three main categories of sexual orientation within the heterosexual–homosexual continuum. The most common adjectives for homosexual people are lesbian for females and gay for males, but the term gay also commonly refers to both homosexual females and males. The percentage of people who are gay or lesbian and the proportion of people who are in same-sex romantic relationships or have had same-sex sexual experiences are difficult for researchers to estimate reliably for a variety of reasons, including many gay and lesbian people not openly identifying as such due to prejudice or discrimination such as homophobia and heterosexism.
LGBTQIA+ RIGHTS AROUND THE WORLD:
LGBTQIA+ is an acronym that brings together many different gender and sexual identities that often face marginalization across society.The acronym LGBTQIA stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, and the + holds space for the expanding and new understanding of different parts of the very diverse gender and sexual identities. Rights affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality. While progress has been made in many countries to protect and promote LGBT rights, there are still places where discrimination and persecution persist. In 2011, the United Nations Human Rights Council passed its first resolution recognizing LGBT rights, following which the Office of the United Nations High Commissioner for Human Rights issued a report documenting violations of the rights of LGBT people, including hate crimes, criminalization of homosexual activity, and discrimination. Following the issuance of the report, the United Nations urged all countries which had not yet done so to enact laws protecting basic LGBT rights
As of March 2023, 34 countries recognize same-sex marriage. By contrast, not counting non-state actors and extrajudicial killings, only two countries are believed to impose the death penalty on consensual same-sex sexual acts: Iran and Afghanistan.
According to a report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), same-sex relations can result in a prison sentence up to life in dozens of countries and in eight it can even lead to a death penalty.Iran, Sudan, Saudi Arabia, Yemen, Somalia and northern Nigeria criminalise same-sex relations under Sharia law, while the ISIS commits extrajudicial executions of homosexuals in Syria and Iraq. In these harsher nations, penalties differ for married and unmarried men, and are often more lenient for women.
Even in countries where homosexuality is legal, discriminatory laws still exist and violence against the LGBTQ community abounds. In Russia, where homosexuality is legal, the government passed a law in 2013 that bans the “promotion” of “sodomy, lesbianism, bisexuality and transgenderism.” In Chechnya, reports emerged in April of gay men stripped naked, tortured and even killed because of their sexuality. In the US, transgender violence hit its highest level ever recorded in 2015 with the murders of 21 transgender victims, almost all women of colour. Not one was reported or prosecuted as a hate crime.
STATUS IN INDIA:
In Ancient India,Ayoni or non-vaginal sex of all types is punishable in the Arthashastra. Homosexual acts are, however, treated as a smaller offence punishable by a fine, while unlawful heterosexual sex carries much harsher punishment. The Dharmsastras, especially the later ones, prescribe against non-vaginal sex like the Vashistha Dharmasutra. The Yājñavalkya Smṛiti prescribes fines for such acts including those with other men. Manusmriti prescribes light punishments for such acts. Vanita states that the verses about punishment for a sex between female and a maiden is due to its strong emphasis on a maiden’s sexual purity. Eventhough the scripts from time immemorial state about homosexuality and people of the spectrum there still was and has been stigma around the whole topic of homosexuality and LGBTQIA+ rights.
The Section 377 of the Indian Penal Code (IPC) is an act that criminalises homosexuality and was introduced in the year 1861 during the British rule of India. Section 377 reads as follows: Unnatural offences.—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.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
A leading NGO of our country had brought an action in the Delhi High Court challenging the constitutionality of this law. The government dithered for two years before it filed its response. It did so only after immense pressure from civil society organizations and the passing of several strictures by the court. While its dithering is understandable as a tactic to loose another problematic litigation in the jungle of half a million or so cases clogging the Indian judiciary, the substance of its reply brings to light the culture straitjacket.
For many years, Section 377 was a source of discrimination and persecution against the LGBTQ+ community in India. It was used to justify harassment, blackmail, and arrests of individuals based on their sexual orientation. However, over time, public opinion began to change, and there was an increasing demand for the decriminalization of homosexuality.
In 2009, the Delhi High Court delivered a landmark judgment in the case of Naz Foundation v. Government of NCT of Delhi, which declared that Section 377 was unconstitutional to the extent that it criminalized consensual sexual acts between adults. The court ruled that the provision violated the fundamental rights of privacy, dignity, and equality guaranteed by the Indian Constitution.This judgment was a significant step forward for LGBTQ+ rights in India. However, it was challenged in the Supreme Court of India, which overturned the Delhi High Court’s decision in 2013. The Supreme Court held that amending or repealing Section 377 was a matter for the Indian legislature and not within the court’s purview.
The 2013 Supreme Court decision was met with widespread disappointment and protests from human rights activists and the LGBTQ+ community. However, it also sparked a renewed movement for LGBTQ+ rights in India, with increased public awareness, advocacy, and support .
Finally, on September 6, 2018, the Supreme Court of India, in the case of Navtej Singh Johar v. Union of India, unanimously struck down parts of Section 377. The court ruled that consensual adult same-sex relationships should not be treated as criminal offenses. The judgment decriminalized homosexuality in India and recognized the rights of LGBTQ+ individuals to equality, dignity, and privacy.
The decriminalization of homosexuality under Section 377 was a significant victory for LGBTQ+ rights in India. It marked a progressive step towards recognizing and affirming the rights and freedoms of individuals irrespective of their sexual orientation. Since then, there have been ongoing efforts to further advance LGBTQ+ rights, including issues such as marriage equality and protection against discrimination.
India does not recognise registered marriage or civil unions for same-sex couples, though same-sex couples can attain rights and benefits as a live-in couple (anagolous to cohabitation) as per a Supreme Court of India judgement in August 2022. A constitutional bench led by the Chief Justice of India D Y Chandrachud has heard a plea of legalisation of same-sex marriage in April and May of 2023 for a period of 10 days . Solicitor General Mehta told the Bench that a committee would be formed under the Cabinet Secretary. The Bench noted that committee would require coordination with multiple ministries, and suggested the petitioners to submit a list of issues. Further, the Bench clarified that they would still be deciding the right to marry in the Case. The administrative measure of forming a committee is something that must take place regardless of how the case is decided. They have reserved for judgment.
Gays. Lesbians. Bisexuals. Tans-gender individuals. No right to marry, adopt children or even protest against discrimination at the work place in fact, no right to be recognized as normal human beings free to live life as billions of other do. All because of sexual orientation. That is a fearful scepter indeed for a country where more than 10% of the population is comprised by GLBT’s.A lot is yet to change in legalisizing and legitamizing the rights of the LGBTQIA+ community.
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ARTICLE WRITTEN BY ROSHNI SABU, FINAL YEAR BA.LLB, KERALA LAW ACADEMY LAW COLLEGE.