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Nupur Mukherjee - Vth Year BSL.LLB - Symbiosis Law College

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I

Introduction
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 to them.

According to Scholar Ejaz Ahmed the 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 condemns.

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 was unthinkable.

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 homosexuality.

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 years.

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 section.

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 nature.

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 recently.

-‘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 friends’.
-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., are concerned.

 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.

Conclusion
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.

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Bibliography
Books
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

Articles
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

Sites
1.http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/suchana/0909/rh374.html
2.http://www.ilga.info/Information/Legal_survey/Asia_Pacific/supporting%20files/situation_of_homosexuals_in_indi.htm
3.http://www.englishforums.com/English/HomosexualMarriagesAgainstNatures/zrdh/Post.htm

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The  author can be reached at :
nupur.mukherjee@legalserviceindia.com

 

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