Homosexuality: World Scenario By Abhavya Rabra
Homosexuality– World Scenario
- Abhavya Rabra (Jagran Lakecity, Bhopal)
“There’s nothing unnatural in these relationships and I hope the subject is reviewed/law amended at the earliest. In the modern age every individual has the freedom of choice and we should respect it.”
-By Piyush Goyal
SECTION 377 OF THE INDIAN PENAL CODE
Section 377 of the Indian Penal Code was authored by Lord Macaulay, the President of the Indian Law Commission, in 1860, as part of Britain's efforts to impose Victorian values on its biggest colony. It is also interesting to note that Britain, the author of the Indian Penal Code and Section 377 during the colonial period, decriminalized homosexuality in its own jurisdiction as long ago as 1967.
The section reads as follows: “Section 377: 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 10 years, and shall be liable to fine. Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Section 377 of IPC states that 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 or in simple words any form of unnatural sex such as homosexuality etc. is criminalized in India.
Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Section 377 ban acts of homosexuality as well as some act of heterosexuality. According to this law, any kind of sexual activity that is not penilevaginal intercourse is punishable. This law then criminalizes sexual activity between two consenting adults. Section 377 is also the only law in the Indian Penal Code that addresses child sexual abuse. We can clearly see, however, that a law that only includes penile-vaginal intercourse cannot be a comprehensive code to address child sexual abuse thus asserting the need for another law on the same This law instituted in 1860 in British India, at the same time as in Britain itself, is common to many former colonies of Britain and thus is common to most countries in South Asia. It has historically been the anti sodomy provision in the British imperial legal system. Ironically, enough the section was removed from the British code but still remains in its former colonies.
IMPACT OF CRIMINALISATION
This section seeks to analyse the impact of criminalisation of sexual acts between homosexuals on the private and personal lives of homosexuals. The impact on three main facetsis sought to be studied:
· The mental health of a homosexual
A 15-year-old student set himself on fire after being seen by his neighbors who had found him get intimate with a male friend. He was subjected to ridicule and teasing, which led him 5 to an extreme step. A survey conducted revealed that one is every five homosexual person attempted to commit suicide. There are various reasons, which lead the homosexuals to take a drastic step or to be depressed, such as:
a. The reaction from the family Survey reveals that homosexuals experience rejection by parents when upon disclosure of their identity. 80 per cent of the gay population in India is too scared to reveal their sexuality to their parents. Hence, many homosexuals have estranged relationship with parents, who are usually one’s primary source of comfort or fear from opening up about their homosexual identity as they fear their parents’ reaction.
b. The reaction from the society Homosexual relations are often subjected to societal disapproval and scrutiny. This is because a society is heteronormative, which means that the prevailing view in the society is one that promotes heterosexuality as the dominant, normal or preferred sexual orientation. Homosexuals are often labelled as “fag” and homosexual men are called “queen” to feminize them. The constant use of such demeaning words has a bearing on the way homosexuals perceive themselves. The Labelling Theory explores the effect of tendency of majorities to negatively label minorities who do not adhere to the dominant social norms.
2) Heteronormativity [The effect of societal norms on a homosexual]
A heteronormative culture is one that "privileges heterosexuality as normal and natural" and fosters a climate where LGBTQ are discriminated against in marriage, tax codes, and employment. Heteronormativity is often linked to homophobia and is stated to oppress, stigmatize and marginalize deviant forms of sexuality which makes self-expression more difficult as it imposes the heteronormative norms.
Forced into heterosexual marriage
As heterosexuality is seen as the norm, a known gay-rights activist, Harish Iyer confessed that when he realised that he was a homosexual, he did not want accept it as it would involve stigmatization and thus, he forced himself to enter into sexual relations with a woman and be heterosexual. Similarly, homosexuals are also forced into enter into heterosexual marriage.
A suicide of a woman in Bangalore after she realised that she married to a homosexual man and the double suicide of a lesbian couple in West Bengal upon one of the partners being forced to get into a heterosexual marriage reveals the rigid binary code of human relationships in India.
b. Psychiatric treatment
A homosexual identity is seen a deviant identity due to which homosexuals are often exposed to psychiatric treatment by medical practitioners who claim that it is a result of imbalance in the body or mind, and boast of having a treatment that will solve it and make them heterosexual. They are often subjected to conversion methods and electro-convulsive therapy. It is proposed that there should be measures for societal change rather than change of individuals’ sexual orientation.
3) The relationship with public authorities and officials
Abuse by police officers -The bench in Suresh Kaushal noted that: "Pro-gay activists miserably failed to furnish particulars of incidents of discriminatory attitude consequent denial of basic human rights, harassment and assault from public authorities." However, the activists who have filed a curative petition against the judgment of Kaushal have highlighted the various tortuous methods employed by the police that had also been highlighted by the petitioners. Homosexuals are often subjected to threat of imprisonment on false charge, rape and physical abuse. Many of them have committed self-immolation and suicide. Due to criminalisation, homosexuals live in a constant fear of detention, police intimation, extortion and torture. They also face forms of hostility and discrimination in their communication with government agencies.
ANALYSATION OF NAZ FOUNDATION CASE
With the dawn of the existing epoch, the crusade against the oppressive and domineering nature of Section 377 propagated exponentially and reached its zenith in Naz Foundation v. Government of NCT of Delhi, wherein the Delhi High Court documented the archaism associated with Section 377 and interpreted it to omit sexual acts between consenting adults, thus decriminalizing homosexuality. Section 377 of the Indian constitution is a descendant of an archaic law from the colonial British rule, which described homosexual acts as “unnatural”. It was incorporated into the IPC in 1860. According to the Lawyers Collective, section 377 lacks precise definition. Over the years, it has come to include all manner of “immoral” acts other than that considered “natural”.
Gay rights activists argue that section 377 violates articles 14, 15, 19 and 21 of the Indian constitution, which guarantee equality, freedom of expression and personal liberty to all its citizens. Upholding it will deny basic human rights to sexual minorities in the country. Further, they say, it will inhibit discussion on an issue already considered controversial and taboo, especially as discussion on sex and sexuality in any form is rare.
VEHEMENCE AND ENNUI TOWARDS SEXUAL MINORITIES BY THE LAW ENFORCEMENT ORGANIZATIONS
Section 377 has been lengthily used by the law enforcers to hassle and feat homosexuals and transgender. Numerous such occurrences have come to light in the recent past. In Jayalakshmi v. State of Tamil Nadu, Pandian, a transgender, was arrested by the police on burdens of theft. He was sexually abused in the police station which eventually led him to slaughter himself in the premises of the police station. Similarly, policemen arrested Narayana, a transgender, in Bangalore on suspicion of theft shorn of informing him of the grounds of arrest or spreading any opportunity to him to defend himself. His diary was seized by the police and he was susceptible with dire consequences if he did not assist in identifying other transgender he was conversant with. Homosexuals have also been at the distressed end of financial extortion by the police in exchange for not close-fitting their identities to society.
An uncharacteristic use of Section 377 was seen in Lucknow when workers of Bharosa, a NGO intended at spreading awareness about AIDS, were arrested for circulation of pamphlets providing tips on safe sex to homosexuals. The same agencies of the law have been indifferent towards these sexual minorities in the dominion of their health and safety.
When a medical team inspected Tihar Jail, they reported a high incidence of sodomy in the prison and endorsed provision of condoms to inmates to prevent a proliferation of diseases, the Inspector-General of Prisons chose to deny any such providence, discerning it to be a latent confession of rampant homosexual behavior in the prison. As a result of the inactivity of the prison staff, the AIDS Bhedbhav Virodhi Andolan filed a petition in the Delhi High Court stimulating the official position and the constitutionality of Section 377.
Correspondingly, ICMR and Indian Medical Association (IMA) have not prescribed any guidelines for Sex Reassignment Surgery (SRS).This cageyness on the part of the medical domain has led many transgender to approach quacks, putting themselves at grave risk. From the plentiful instances of abuse and violence against homosexuals and transgender, it is obvious that Section 377 has been exceptionally tainted. It is equally obvious that a judicial change to address this concern was pressing in the face of a law enforcement framework so hostile that mistreatment at the hands of the alleged protectors became a quotidian affair for sexual minorities in India.
JUDGMENT OF THE HIGH COURT
The judgment of the Delhi High Court is a fertile dissertation in as much as it addressed various concerns associated with the existence of Section 377. The Court appraised the constitutional validity of the impugned law, scrutinizing its compatibility with Articles 14, 15, 19 and 21. Having held that sexual preferences fall within the right to dignity and privacy of the individual, the court held that Section 377 instituted a direct infringement of the aforementioned right and as a consequence, violates the substance of Article 21. To answer the question of violation of Article 14, the court applied the tests laid down by the Supreme Court since the decision in State of West Bengal v. Anwar Ali Sarkar AIR 1952.
The court then went on to interpret the term “sex” in Article 15 to not only signify gender, but to have a wider periphery inclusive of “sexual orientation”. Moving on this perception, the court lined that Section 377 is prima facie discriminatory towards the sexual minorities and is therefore, in violation of Article 15 as well. The court, in a gesticulation of finality, applied the doctrine of severability in order to read down the impugned law only to the extent of decriminalizing consensual sex between adults. The instant reaction to the judgment was of extreme elation from the sexual minorities across the nation while religious leaders condemned it with equal passion. The judgment, if viewed comprehensive of its social impact, is not merely a pronouncement of a court in dry legal jargon but signifies the path to liberation of the sexual minorities, a collective long condemned and discriminated against. It is further noteworthy due to its inclusion of sexual rights of the individual in the arcade of fundamental rights enshrined in Part III of the constitution.
The judgment is a cause of countless jubilation for the hitherto troubled sexual minorities. It forms a source of rescue on two different planes: it decriminalizes sexual relations between homosexuals and concurrently serves as a source of protection from maltreatment and disparagement at the hands of the upholders of the law. It also ensures protection of the sexual minorities from various medical afflictions by bringing their condition in the conscience of the authorities.
In decriminalizing consensual sex between homosexuals and transgender, the judgment also discourses the proximate concern of health. With criminalization a thing of the past, it may now be possible to contest the exponentially growing threat of HIV/AIDS with worthwhile prevention measures and adequate information about sexual practices. The other element of the court’s decision, which truly upholds the ingredient of civil liberties, is the elimination of scope for abuse at the hands of the authorities. Prior to the decision, the sexual minorities had a long history of subjugation at the hands of the authorities. Sexual abuse and financial extortion was the dilemma of homosexuals and transgender on a frequent basis. The inhumanity associated with such acts was further put emphasis on by the fact that the alleged guardians were the true agents of violence and abuse. Section 377, after the ruling of the court, can no longer be a tool of abuse at the disposal of the law enforcement agencies. Thus, it may be asserted that the judgment has liberated the sexual minorities of India at various echelons.
The judgment of the Delhi High Court reproduces a sense of ethics and sympathy towards the sexual minorities, sentiments that were hitherto unknown. Section 377, in its criminalization of homosexual activity, was an exploitive measure on the fundamental rights of the LGBT community.