This article briefly discusses the history of homosexual rights in India. The debate started, in essence, in 2009 when the Delhi High Court found Section 377 of the IPC unconstitutional in the landmark Naz Foundation case. The article goes on to discuss the various homosexual rights in India and grievances of the community, whilst also discussing the law of some foreign jurisdictions.
Thu Jul 07 2022 | Family Law | Comments (0)
Homosexuality/LGBT has been one of the most argumentative topic, not just in India but worldwide.
As far as India goes, until 2009, homosexual intercourse was considered to be an offence under SECTION 377 of The India Penal Code, 1860, which read, “carnal intercourse against the order of nature with any man, woman or animal" is a punishable offence.
Recognition to homosexual rights in India was specified in 2009, in a landmark judgement by Delhi High court in Naz Foundation v. Govt. of NCT of Delhi wherein the High court found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. Hence, in India, consensual sex concerning two adults of the same sex can no longer be a criminal offence.
This case has been the first to get the consent from law on sexual minorities to be treated uniformly. Prior to this, for decades, the police and sometimes society at large, were using the law as an excuse to harass gay men and women, who were beleaguered, blackmailed, detained and even raped but were unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities.
The issue of homosexuals that cropped up debate:
(i) Liberalisation of the law (in the UK, by the Sexual Offences Act, 1967 as amended in 2000 and some other countries by a similar legislation) has brought with it a modification in social attitudes, so that the ignominy attached to homosexuality has, to a great extent, disappeared.
(ii) Campaigns for lesbian and gay rights, especially in the western countries, have taken on an increasingly deep-seated character, arguing for an end to all forms of discrimination against homosexuality, and even for the legalisation of same sex marriages.
(iii) The outbreak of HIV/AIDS, which has been spread in the western countries to a great extent by homosexual activity between males, has led to accusations and counter-accusations, often of a bitter kind in Spain, Belgium ,Netherlands, as well as Canada, in allowing same sex marriages. Same sex acts are punishable by death in nine countries around the world.
In India Homosexual intercourse was a criminal offence until 2009
Under Section 377 of the Penal Code, it was an offence for a person to voluntarily have carnal intercourse against the order of nature. Even as convictions under this section were rare, with no convictions at all for homosexual intercourse initially, Human Rights Watch have said that the law was used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups.
Post the Naz Foundation case in 2009, homosexual intercourse became legal as opined by the New Delhi High Court, there is still no law that favours the legality of gay marriage.
Although there is also no law unambiguously prohibiting it, same-sex marriage is not legal in India and same-sex marriage performed elsewhere is not recognized in India. Same-sex couples can have a Hindu wedding in India, but they cannot register their marriage, thus not being able to make it legal, despite the fact that heterosexual couples doing the same thing are considered married. The majority of marriages in India are never registered with the state and marriage laws dictating that any two Hindus who marry according to the Hindu rituals are legally married in India.
However, a Gurgaon court, in 2011, effectively recognised a marriage between two women. Since marriage, the couple started receiving threats from friends and relatives in their village. Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences".
Grievances:
On 4-7-2008, gay activists fighting for decriminalisation of consensual homosexuality at the Delhi High Court got shot in the arm when the Court opined that there was nothing abnormal in holding a gay rally, something which is common outside India.
Despite the fact that literature drawn from Hindu, Buddhist, Muslim, and modern fiction give evidences of the presence of same-sex love in various forms, homosexuality is still considered a taboo subject in India, by both the society and the Government, hence here are high chances of consequences to this group's health in relation to HIV infection.
Being gay is still considered a crime in the military. The Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957 all have their own provisions, under which homosexuality is considered illegal and prosecuted by the armed forces. So, even though Section 377 (IPC) might have been rendered inapplicable in the case of consenting adults by the Delhi High Court, there are still provisions of these other acts which will continue to apply to homosexuals in the military, under which it remains a punishable offense.
Advocacy and legalisation of homosexuality in India
The Naz Foundation, a New Delhi based NGO, is at the vanguard of the campaign to decriminalise homosexuality. The organisation aims to make the community receptive towards the pervasiveness of HIV, as well as highlight issues related to sexuality and sexual health. The organisation has strong linkages with human rights groups and agencies such as Lawyers Collective, Human Right Law Network, Amnesty International, International Gay and Lesbian Human Rights Commission. Naz India has collaborated with these agencies to address cases of sexual rights abuse. Naz India’s efforts to make the Government responsive towards different issues related to the epidemic include the amendment of Section 377 of the Penal Code, commonly known as the Anti-sodomy Law.
In September 2006, Nobel Laureate Amartya Sen, and the acclaimed writer Vikram Seth, came together with support from other prominent Indians in public life to publicly demand this change in the legal regime. The open letter demanded that, in the name of humanity, and of our Constitution, this cruel and discriminatory law should be struck down.
On 30-6-2008, Indian Labour Minister Oscar Fernandes, backed calls for decriminalisation of consensual gay sex, and the Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.
On 23-7-2008, the Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.
A much opposed ruling by The Supreme Court on 11.12.2013 set aside the decision of the Delhi high court, which had in 2009, decriminalised sexual relation between persons belonging to the same sex.
A bench of justices G S Singhvi and S J Mukhopadhaya upheld the constitutional validity of Section 377 of Indian Penal Code that makes same sex relationship a punishable offence.
The ruling is being widely disapproved of by the people, celebrities as well as the Government. The law Minister, Mr Kapil Sibal has mentioned "The Government is considering all options to restore the (Delhi) high court verdict on (Section) 377 (of IPC). We must decriminalize adult consensual relationships."
One of the most contentious topics to deal with even today, homosexuality and the issues surrounding homosexuals are coming into the eyes of the Government now. Hopefully, there will be laws made or amended to support homosexuals and their rights to treat them as regular people with equal privileges.
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