The marriage of Wendell Rodericks, one of India’s prominent fashion designers
and his French gay partner Jerome was solemnized at the French Consulate in Goa
according to the Pact Civil de Solidarite (PACS). This is the French Law that
gives legal recognition to homosexual unions and also bestows upon them the
rights, duties and the status a heterosexual married couple get.
The most obvious question now is, why did
India have to wait so long to witness a gay union and that too one being
solemnized under some other country’s law? Why is our country o critical of
homosexuality that it dismisses even the slightest hint in this direction with
an embarrassed yet stern approach?
The possible answer to all such questions
is, since homosexuality is still viewed as a heinous crime in this country, to
accept the same and give two gay people the status of being married is perceived
to be blasphemous.
Nonetheless, the irony here is that
homosexuality is not something the west taught us; the west taught us how to
criminalize this very concept. A law of the colonial era, that has very
successfully distorted the way Indians look at alternate sexuality, has been
done away with in its country of origin but it still haunts the sexual
minorities in India, why? Is it not time for our country to stop trying to
control what two consenting adults may do behind closed doors? Is it not time
for our country to come out of its cocoon of misconception and realize that as
much as they hope for it, the gay and lesbian community in our country isn’t
going anywhere; they will remain here and keep demanding their rights until they
get it. For our Country to accept certain norms and shun others is quite
hypocritical. While the whole world has started recognizing and respecting
homosexuals and granting them all legal rights due in today’s era to any human
being, our Country treats consensual adult love between people of the same sex
as sodomy, and refuses to grant same sex relationships the sanctity that is due
According to Scholar Ejaz Ahmed
homosexual is a person erratically attracted to members of his or her own sex
and with whom he usually (but not always) has perverted sexual contact.
Homosexuality is sometimes known by other names including, sodomy, pederasty and
crimes against nature.. the offence is termed lesbian love or lesbianism. It
is generally practiced by women who suffer from mental degeneration and have
antipathy towards the opposite sex..... It is because of the propagation of such
views that the society has taken a stringent and rigid attitude against
homosexuality. Since such views are prevalent against homosexuality itself,
acceptance of the union of same sex couples will necessarily take a longer time.
The first step towards understanding is to see homosexuality in an unbiased
light and then to perceive interlinked arenas such as recognition of gay
marriages or their rights to adopt and other connected rights.
What is Homosexuality?
Homosexuality is neither a mental illness nor is it any sort of moral depravity.
It is just the way a few of us wish to express our love and sexuality.
Homosexuality is not a matter of individual
choice. It depends on ones sexual orientation. Various researchers have
different views on the source of sexual orientation. Some say it is a genetic
factor or an in born trait, others attribute it to experiences in childhood.
Most scientists agree that homosexuality is not a conscious choice that can be
voluntarily changed and it is not advisable to try and convert someone’s sexual
orientation since it would not only require changing ones sexual behaviour but
also reconstructing ones emotional, romantic and mental state of mind.
Further scientists have proved that there
are certain neuroatomic differences between gay and heterosexual people. Thus
people are born gay and they do not become so as a matter of choice. Sexual
preference does not change with moral or social codes across the world, it
remains constant across cultures irrespective of what that culture accepts or
Homosexuality Throughout the Ages
Even though history has threads leading us to believe of the existence of same
sex relationships, for quite some time now it has been viewed as a deviant
behaviour or an abnormal trait.
The Indian Penal Code, drafted in 1860, was
influenced by the Victorian ideas and prejudices; therefore sexuality was dealt
with as being a pathological issue rather than an expression of natural desire.
Hence, for Indians to imagine sexual intercourse between people of the same sex
The above view is incongruent with our past
considering the fact that ancient Hindu scriptures, such as Rig Veda make clear
mention to sexual acts between women. Further the carvings and depictions in the
famous temples of Khajuraho, Konark, Puri are proof of the same.
Stories of Muslim Nawabs and Hindu noblemen
with habits such as maintaining a harem full of young boys also point towards
the existence of the notion of same sex relationships. Not to overlook the fact
that India is also the birthplace of the Vatsayan’s Kamasutra, which is hailed
as the bible of intimate acts, that includes a complete chapter referring to
With the coming of the Aryans in 1500 B.C.,
and assertion of the patriarchal system of society, homosexual tendencies were
looked down upon and suppressed. Links to the same find a mention in the
Manusmriti, which discusses punishment for homosexual behaviour and this
directly indicates that the norm of compulsory heterosexuality was preached and
prescribed by the Brahmins.
With the advent of the British Raj came the
Puritanical values, which regarded display of sexuality as evil or satanic. To
the Puritans, sex existed for the sole reason of procreation, and thus
homosexuality was considered to be contrary to God’s will.
In the 20th Century, slowly but steadily, world over the concept of
homosexuality became somewhat acceptable. The American Psychiatric Association
removed homosexuality from its Diagnostic and Statistical Manual of Psychiatric
Disorder in 1973 and the American Psychological Association followed suit in
1975. The World Health Organization also removed it from its list of mental
illnesses in 1981. The turning point was when the Vatican published an article
in 1975 called ‘Declaration on Certain Questions Concerning Sexual Ethics’. It
said, For some individuals homosexuality is an innate instinct. This makes it
reasonable for us to conclude, that even the Church had now accepted, the fact
that for some people homosexuality is their natural preference and that is how
God has created them. Even though the Church still discourages such acts they
were forced to accept the existence of the same.
Further, homosexuality was decriminalized in
a select few countries and this triggered of a chain reaction where other states
started enacting policies in the nature of anti-discriminatory or equal
opportunity laws to safeguard the rights of homosexuals. The first country to
safeguard gay rights was South Africa in 1994. In 1996, the United States
Supreme Court observed that no law could be passed by any state, which would be
discriminatory towards gay people. Countries like Canada, France, Netherlands,
Spain, New Zealand and the Scandinavian countries followed the example of South
Africa and enacted similar laws.
Special mention has to be made of our former
colonial masters (Great Britain), who in 1967 had already passed the Sexual
Offences Act, which states that homosexual acts in private shall not be an
offence provided the parties consent thereto and have attained the age of 21
Despite all the conscious efforts worldwide
to protect alternate sexuality, India has neglected to address this issue and
others related issues. Therefore, homosexuals in our country continue to be
victimized by the State and the society.
Is Homosexuality a Crime?
Section 377 of the Indian Penal Code reads:
Of 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 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 carnal intercourse necessary of the offence prescribed in the
The British left us redundant and ridiculous
piece of legislation 145 years ago. Then it was perceived that a homosexual
person had only ‘anal’ intercourse and this propagated the narrow-minded view
that sodomy and homosexuality was one and the same. In recent times however,
Britain has done away with this legislation, though we in our Country continue
to hold fast onto such obsolete and dangerous perceptions. The consequence being
that homosexuality is criminalized solely due to the manner of the intercourse.
This indicates that no thought has been given to the emotional attachment,
affection and bond between two people though they might be of the same sex.
The Section poses before us certain
interesting questions like what is ‘natural’ and what the ‘order of nature’ is
all about? Section 377 does not define either of the above terms and has left it
to the discretion of the courts, leading to a lot of controversy. Further, this
section does not differentiate between consensual and coercive sex. In the case
of Fazal Rab Choudhary v. State of Bihar , two men were engaged in a consensual
relationship. The Supreme Court observed that:
The offence is one under Section 377 of the Indian Penal Code which implies
sexual perversity. No force appears to have been used neither omissions of
permissive society nor the fact that in some countries homosexuality ceases to
be an offence has influenced our thinking.
The Supreme Court sentenced the men to six
months rigorous imprisonment. What a comical tragedy, how a third party has
locus standi to institute a suit against two consenting adults who voluntarily
enter into sodomy. This clearly infringes on a person’s right to life and
liberty as enshrined in Article 21 of the Constitution of India.
The Army Act, Air Force Act and the Navy Act
have similar provisions, which say that if a person is found guilty of any
unnatural act, he will be punished for the same. This seems to be a clear
violation of Article 14 of the Constitution of India, since it discriminates
people of the basis of their sexual orientation.
Naz Foundation India Trust, a
Non-Governmental Organization, working for the welfare of AIDS patients, filed a
petition in the Delhi High Court in 2001 challenging the validity of Section 377
of the Indian Penal Code, 1860. They pleaded in their petition for a reading
down of the section in order to decriminalize homosexuality but not to repeal
the same completely, since Section 377 is the only law that protects the boy
child from sexual abuse.
The Government filed its response only after
immense pressure from various quarters. It was said that they did not favour the
petition filed by Naz Foundation and also that they felt that Section 377 could
not be read down because:
1.Deletion of the section would open
floodgates of delinquent behavior and misconstrued as providing unbridled
license to the same.
2.Law does not run separately from society
it only reflects perception of the society. Public tolerance of different
activities changes and legal categories get influenced by those changes. The
public notably in the United Kingdom and the Unites States of America have shown
tolerance of new sexual behaviours and preferences but it is not the universally
accepted behaviour. And
3.In fact, the purpose of Section 377 is to provide a healthy environment in
the society by criminalizing unnatural sexual activities against the order of
In the reply of the Government there was
also a mention of the 42nd and 156th reports of the Indian Law Commission, which
stated that the society does not approve of homosexuality and therefore this was
used as a justification in retaining Section 377 in statute books. Surprisingly
they managed to overlook the 172nd report of the Indian Law Commission which has
recommended that Rape laws be changed to
i. Make it gender neutral,
ii. Make special provisions for child sexual abuse, and
iii. Repeal Section 377 of the Indian Penal Code.
The Delhi High Court seemed to concur with
the view of the Government and dismissed the matter on technical grounds. Naz
Foundation then approached the Supreme Court and the case has been reverted to
the Delhi High Court for a fresh hearing. The Governments projects its own
opinions as having roots in popular consensus. Years of campaigning and dynamic
activism in this field by various organizations, trying to change the attitude
and mindset of the society are all negated by declaration of such sorts.
Marriage and homosexuality
The Indian society is steeped in tradition and this reflects on the legal system
as regards inter-personal relationships. Intimacy of any sort is not approved of
unless it is legitimized in the form of marriage where socially approved sexual
access takes place. The social order in our Country is religion based which
views procreation as an obligation for the execution of various religious
ceremonies. Additionally our society is very community oriented and
individualism is not encouraged in the least, any expression of homosexuality is
seen as an attempt to renounce tradition and promote individualism, thereby
posing a threat to the order in Indian society. It is opined that if homosexual
marriages are legalized it will destroy the concept of a traditional family and
the sanctity of marriage will be lost.
It must not be forgotten that the Indian
society is patriarchal in nature and the fact that certain women and men have
different choices, which is not sanctioned by the ‘order’, frightens them in a
way. As Balasaheb Thackeray, Shiv Sena Chief, puts it is
it fair to show such things which are not part of Indian culture? It can corrupt
tender minds. It is a sort of social AIDS. Dr Manmohan Singh on being asked about homosexual unions
not being legalized in India summarily dismissed the issue stating that the
country was not yet ready to accept such notions.
In spite of all these moral, social and
legal restriction that our society tries to exert, from every corner of the
country groups and associations of gay and lesbian people are trying to assert
their rights. Instances of homosexual unions have been making headlines
-‘Lakshya’ a Vadodara based organization
helped 15 gay couples tie the knot.
-A lesbian couple in Amritsar was given sanction by the Magistrate to ‘live like
-Two women were legally wed in Jodhpur and not only did they get the blessings
of both the families but their marriage was also officially registered. It is
high time that gay unions are recognized and a status of normalcy be granted to
people of different sexual orientation.
Marriage has various implications as far as
rights and duties of an individual are in question. It not only gives to people
the right to co-habit but also gives them rights as far as issues like property,
inheritance, maintenance, adoption, pension, insurance, employee benefits etc.,
number of countries have granted legal
recognition to same sex unions. Denmark was the first country to enact The
Registered Partnership Act in 1989, Norway and Sweden followed suit in 1993 and
1995 respectively. These partnership Acts apply to same sex couple only. They
give rights in areas of property, inheritance, immigration, tax and social
security. However, couples are not allowed to adopt children and one of the two
must e a citizen of the above-mentioned countries. France on October 13th 1989
passed the Civil Solidarity Pact (PACS) which states that unwed couples and even
same sex couples can register their union to enjoy tax, legal and social welfare
benefits that straight couples receive with marriage. Netherlands followed suit
by granting rights in the same arenas. Italy, Britain, Finland, Belgium,
Portugal, Spain, Switzerland, The Czech Republic and Brazil are also in the
process of expanding rights to homosexuals.
India also needs to come out and address the
situation that is knocking at her door. They need to recognize homosexuality and
in turn legalize gay unions. The various personal and civil laws enacted for the
benefit of spouse or family are not accessible to the gay community since their
union is not recognized by the State.
Under all Labour and service laws, various
benefits are available to heirs and legal representatives. Due to the scheme of
these acts, a relationship, which is not based on blood or conjugal union, is
not recognized for entitlement to these benefits. Acts like the Employee
Provident Fund, Payment of Gratuity, Workmen’s Compensation, Employee State
Insurance, Public Liability Insurance Act and Insurance laws all recognize only
blood or marital relations. Therefore the major Central Civil Law problem being
faced by the gay and lesbian people today us that they do not fall under the
definition of family and thus aren’t considered as heirs.
The universal law of Human Rights states that social norms, tradition, custom or
culture cannot be used to curb a person from asserting his fundamental and
constitutional rights. If we were to accept the justification, given to us by
cultural views, public policy and societal values, which are used to restrict a
persons right then there would have been no progressive legislation enacted in
our Country. Sati, dowry, child marriage and infanticides are practices derived
from cultural belief, but the Government still took steps to prevent them.
It is human tendency to highlight
differences than realize similarities, which is why Gods diversity in creation
instead of being glorified is shunned, feared and despised. Society has become
nothing but a manifestation of our dislikes and disagreements and we claim that
we don’t judge or disagree with those differences but in actuality the society
does and we follow its example. There is no cure to a darkness that refuses the
light of the day.
1.K.D Gaur, Textbook on the Indian Penal Code, Ed.3, 2004
2.Cretney S.M, Masson J.M, R.Bailey-Harris, Principles of Family Law, Ed.7,2002
3.Ejaz Ahmed, Sexual Offences, Ashoka Law House, Ed.2,1980
4. Simon Levay,The Sexual Brain, MIT Press,1993
1.The Statesmen, 13/3/2004, Same sex marriages
2.Hindustan Times, 7/9/2004,NGO helps gay couples tie knot.
3.Times of India, 1/4/2005,Homosexuality is punishable
The author can be reached at :firstname.lastname@example.org