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It takes great courage to say,
I am a homosexual.
It needs even greater humbleness to put up with the statement:
What did you say? You are a homosexual. The complexity of the
homosexual behavior generates an obvious question in my mind as to
why society looks down upon deviant sexual orientations like
homosexuality. Is it because the homosexuals behave in a way which
is not normal, or which is not practiced by the ‘bulk’? Or is it
because the ‘bulk’
tries to ignore the harsh trutha
truth which attacks his conscience generated out of his
socialization
that the ‘bulk’ of such
bulk
does have deviant sexual tendencies at some moment of time, which
even gets manifested? The society at large impute taboos and
stigmatizes such deviant persons. Does the society really want to
curb such deviance or is it the means for the society to pacify
its inner personal war between the conscience and
the manifested act
in some dark corner? One, alone, perhaps cannot answer these
questions because it needs an in-depth analysis of human
psychology, the finer strands of social structure and above all
the ‘unknown’ philosophy of ‘inner self’.
Homosexuality is a type of sexual orientation characterized by
sexual desire or romantic love exclusively or almost exclusively
for people who are identified as being of the same sex. People who
are homosexual, particularly males, are also known as ‘gay’ and
female homosexuals are known as ‘lesbians’. It can also be defined
as sexual relations with another of the same sex regardless of
one’s sexual orientation, self-identification or gender identity.
Even when the gay relationships are fact of Indian social life, it
is yet to be proposed a single reason why same sex marriage is bad
for the country that is not based on religion. The
traditional
Indian society has always taken a very shabby, narrow and
don’t tell about it to anyone
type of look at
‘sex’.
But with the import of western life-style in metro cities and
revolution in information technology (which includes access to
satellite channels and electronic media) the outlook of people,
especially that of younger generations and social activists,
towards sex is positively changing. The great debate between the
moralists
and
liberalists
can be, perhaps, best shown with the help of
Tihar
Jail Sex Imbroglio. In India, homosexuality is not directly
targeted by law. However, it is indirectly regulated by section
377 of the Indian Penal Code, which makes the act of carnal
intercourse against the order of nature with any man, woman or
animal an offence. Between, February and April 1994, there were
several reports in national newspapers about the existence of
rampant homosexuality at Tihar jail in New Delhi. The doctors
recommended that condoms be provided to prisoners to protect them
from HIV, but the then Inspector General of Prisons, Kiran Bedi,
opposed this view saying that it would encourage homosexuality
which is an offence.
The incident took form of a cultural debate where the moralists
opposed homosexuality branding it as immoral, unnatural and
foreign contaminant. This was challenged through a
counter-cultural move where the liberalist argued that
homosexuality had always constituted a part of Indian culture as
was evident from passages in the
Kamasutra. This controversy
climaxed in the filing of two different petitions in the Delhi
High Court, one of them being filed by AIDS Bhedbav Virodhi
Andolan (ABVA) against the Union of India challenging the
constitutional validity of section 377 of the IPC. The petitioners
argued that ancient India art and sculpture testifies to the
prevalence of homosexuality in India to a greater or lesser
extent. The petition was replete with references to homosexuality
in the texts of Kama Sutra. The petitioners argued that the Kama
Sutra, which was compiled as early as the fourth century A.D.,
contains an entire chapter on gay and lesbian sex. The ABVA’s
strategy was intended to refute the idea that homosexuality was a
perverted Western import by demonstrating that it was materially
inscribed in the historical context of India. It also serves to
contest the pervasive heterosexist attitudes that dismiss
gay/lesbian/bisexual women and men as the embodied imperfections
of Westernisation.
In India there exists sufficient documentary, archaeological and
anthropological evidences to suggest that same sex ties especially
among men, were not only culturally, but dignified and revered by
attributing similar traits to religious deities. The homoerotic
carvings among the erotic carvings on the Hindu temples of
Khajuraho in Konark and Puri; and on the great Buddhist monument
at Borabordur in Indonesia are well known. The Kamasutra mentions
a number of homosexual positions in chapter 8th of part III.
Indian kings also tended to have a number of boys in their harems.
Nevertheless, today the most shameful fact is that there are many
incidents for the harassment of homosexuals. These incidents of
harassment of the homosexual community and social discrimination
in India remain widespread despite years of campaigning by
sexually rights groups in the country. The biggest hurdle faced by
the campaign to fight discrimination based on sexual orientation
in India is section 377 of the Indian Penal Code, which
criminalizes
unnatural sex.
The law, a remnant of Victorian morality, was made in 1860, when
any sexual activity that was not meant for procreation was
considered a sin.
It is the time for us to change our perceptions and visualizations
vis-ŕ-vis same sex marriages. We must accept that the main aim of
sexual activities is not only procreation but also enjoyment of
human life. It is also the time for us to protest for the rights
of homosexuals and for decriminalizing the homosexual conduct.
Therefore, I have attempted to highlight some reasons for the
legalization of homosexuality (same sex relationship).
Reasons for the legalization of Same sex relationship:
I. Constitutional Point of View
Section 377 of IPC violates Fundamental Rights guaranteed under
Part III of the Constitution
Article 14 of the Constitution provides us equality before law.
The intention of this Article is that every person is equal in the
eye of the law. Then why homosexuals are not treated equally with
heterosexuals? This Article provides us equal protection of laws
and says that the basis of the classification must have a rational
or reasonable nexus with the object sought to be achieved by the
legislation. However, in criminalizing homosexuality in sec. 377,
the classification between natural sex and unnatural sex is that
those sexual activities that are performed for procreation are
natural and those that are not performed for procreation are
unnatural. Thence, it labels all forms of non-procreative sexual
acts as unnatural. The object that sought to be achieved by the
legislation through this provision is to create a public code of
sexual morality but this object does not have a reasonable and
rational nexus with the classification of natural and unnatural
sex.
The unreasonable classification in this provision is based on
the fact that the main aim of any sexual activity is procreation.
This classification seems to be unreasonable in present scenario
as it took place in 1860 when any sexual activity that was not
meant for procreation was considered a sin. At that time there was
no concept of individuality. Individuals were attached with their
caste, society, religion etc. They were not independent. Now the
individuals become more independent and rational. For them,
procreation is not the main aim of sexual activities. Moreover,
homosexual activity can never be termed as unnatural. Modern
understandings of psychiatry and psychology, no longer view
homosexuality as a disease or a disorder. Thus, the very objective
of the section is facile, unscientific and based upon prejudice
alone. Therefore, sec. 377, which criminalizes homosexuality
relying on the unreasonable classification based on the
procreation, is an absolute violation of this Article.
Article 15 says that there shall be no discrimination based on
sex. The intention of this Article is that no person shall be
subject to any disability, liability, restriction or condition on
the ground of sex or gender. Moreover, sec. 377 criminalizes the
sexual relationship between two person of same sex i.e.
homosexuals. Thus, this provision of IPC discriminates against the
homosexuals because of their sexuality and therefore constitutes
discrimination based on sexual orientation.
Article 21 of our Constitution prohibits the state from
interfering with the private personal activities and personal
liberty of the individual. The term personal liberty is a
compendious term to include within itself all the varieties of
rights that goes to make up the ‘personal liberties’ of a person.
It would include the privacy and sanctity of a person’s home as
well as the dignity of the individual. According to the Supreme
Court of
USA in Lawrence v. Texas liberty gives substantial
protection to adult persons in deciding how to conduct their
private lives in matters pertaining of sex. The central idea
behind the concept of personal liberty and privacy is that the
quest of happiness of the individual must be fulfilled. Homosexual
conduct is a very personal conduct and they do it for the sake of
happiness. It is just a way of pursuit of happiness, a way to
achieve sexual happiness or desire. This Article also says that a
State can deprive any person from his personal liberty and privacy
according to the procedure established by law. Therefore, someone
can say that Sec 377 can restrict homosexuals from their personal
liberty and privacy. But in Maneka Gandhi,s case, it has been held
that the State can deprive any person only then the procedure
cannot be arbitrary, unfair or unreasonable. The procedure in
Art. 21 must be right, just and fair and not arbitrary, fanciful
or oppressive, otherwise, it would be no procedure at all and the
requirement of Art. 21 would not be satisfied. This provision of IPC is an arbitrary, unfair and unreasonable provision because it
criminalizes homosexuals because of their infertility or
unproductiveness that gives a very narrow sense of classification
between homosexuals and heterosexuals. Thus, by criminalizing
homosexuality in sec. 377, it restricts them to enjoy their right
to personal liberty and privacy given in Article 21 and this
procedure is arbitrary, unfair and unreasonable, therefore it is
not a procedure at all.
The meaning and content of Fundamental Rights guaranteed in the
Constitution are of sufficient amplitude to encompass all the
facets of gender equality including same sex relationship.
Moreover, sec. 377 criminalizes same sex relationship. Thus, this
provision is not consistent with the Fundamental Rights and
according to Article 13 of our constitution, which says that those
laws, which are inconsistent with Fundamental Rights, must be
void, sec. 377 of IPC is void. Not the whole section is void; one
part of this section is void and after applying the doctrine of
severability this provision of IPC must be amended.
II. Sociological Point of View
Wolfenden Report and Hart-Devlin Debate: Law shall not intervene
in the private life of the people.
In 1953, British Parliament appointed a Home Office departmental
committee of 15 men and women
"to consider . . . the law and
practice relating to homosexual offences and the treatment of
persons convicted of such offences by the courts". This committee
is better known as Wolfenden Report, after Lord Wolfenden, the
chairperson of the committee. This report says that the law’s
function is to preserve public order and decency, to protect the
citizens from what is offensive or injurious, and to provide
sufficient safeguards against exploitation and corruption of
others. This Committee further wrote that it is not the function
of the law to intervene in the private life of the citizens, or to
seek to enforce any particular pattern of behavior. Homosexuality
cannot legitimately be regarded as a disease, because in many
cases it is the only symptom and is compatible with full mental
health in other respects. The theme of this committee is that
crimes are those acts that affect the society and homosexuality is
not a crime unless it affects the society. So homosexual behavior
was no longer a crime unless it affects the society. In India,
there is no any negative effect of homosexuality on our society.
In spite of this fact, we are continuously rejecting the
homosexuality with the reasons that are based on only morality not
on reasonableness or fairness. Following the Wolfenden Report
there was a debate between Lord Devlin and Prof. H.L.A. Hart on
individual moral freedom and social control. In this debate Devlin
argued that every society has a variety of moral principles.
Without these moral principles a society cannot survive. Society
can use the law to preserve morality. Whereas Hart supported the
Wolfenden report and argued that law cannot interfere in personal
morality. According to Hart, Homosexuality is a very personal
conduct and does not affect the society so law cannot interfere in
this personal conduct until and unless it does not affect the
society.
Same Sex Marriages
Each individual's journey through life is unique. Some will make
this journey alone, others in loving relationships - maybe in
marriage or other forms of commitment. We need to ponder our own
choices and try to understand the choices of others. Love has many
shapes and colors and is not finite. It can not be measured
or defined in terms of sexual orientation. "
Same sex marriages are also the burning issue of present scenario.
Same sex marriage is a marriage between individuals who are of the
same gender. It is also called same gender marriage, gay marriage
or homosexual marriage. Lawrence J Hatter, author of ‘Changing
Homosexuality in the Male’,
has defined same sex marriage as one who is motivated, in adult
life, by a definite preferential erotic attraction to member of
the same sex and who usually, but not necessarily, engages in
overt sexual relations with them. Thence analogically same sex
marriage is nothing but a marriage between two persons who are of
same gender. I am using the term
"same-sex marriage"
in place of the more commonly used "homosexual marriage" because
it is more precise and inclusive. Some individuals with a bisexual
orientation form loving committed same-sex relationships and want
to marry. The term "same-sex marriage" covers them as well as
homosexuals.
Definition of marriage shall be extended to include same sex
marriages.
The traditional definition of marriage is ‘marriage is the union
of a man and a woman’ and so cannot be extended to same sex
couples. They may live together and love one another but cannot,
on this argument, be ‘married’. But that is to dodge the real
question- why not?- and to obscure the real nature of marriage,
which is a binding commitment at once legal, social and personal,
between two people to take on special obligations to one another.
If homosexuals want to make such marital commitments to one
another, and, to society, then why should they be prevented from
doing so? They want to marry precisely because they see marriage
as important: they want the symbolism that marriage brings, the
extra sense of obligation and commitment, as well as the social
recognition. The real definition of marriage is that marriage is a
companionship of two persons with identical values of life and
living. It is a tool for developing honest, voluntary, long
lasting and mutually accountable relationship between two people.
It was created for human kind not the opposite. It is the time for
us to change our concepts of marriage and to recognize same sex
marriages as valid marriages.
This is a primary objection against homosexuals that they cannot
bear children. But no one tests heterosexuals for their fertility
or desire to raise children before determining their suitability
of marriage. In as much as any heterosexual couple that has
remained childless has been recognized as married, it is
hypothetical to resort to this fallacious logic in same sex
marriages
Conclusion
It is evident, from aforesaid discussions, that homosexuality is a
complex phenomenon endemic to all societies from the early days of
their formation. Although, the practice of homosexuality may have
been in minority, nevertheless, it has been a part of society. It
can be said without hesitation that there is a pattern of
discrimination against homosexuals which pervades most dimensions
of our cultural life, and that is rooted in a heterocentric system
that shapes our legal, economic, political, social, interpersonal,
familial, historical, educational, and ecclesiastical
institutions. The root cause of this pattern of discrimination is
perhaps a
reasoned
system of bias regarding sexual orientation
that places heterosexuality as the normative form of human
sexuality and thereby connotes prejudice against anyone who falls
outside of that form. This biasness perhaps arises out of the
assumption that heterosexuality is a normative species, but it
might not be so for all. For some, heterosexuality may be only a
‘common practice’ and it is not necessary that a common practice
must always be normative as well. Only because a practice is
common to a large number of people does not makes it necessarily
normative. Most of the commuters in a local train board it without
buying tickets, but can this be called normative
I can see the rising sun of same sex relationship in India. The
Supreme Court has rejected the Delhi High Court order on same sex
relationships in Naz Foundation’s case. Finally, the unjust
section 377 of the IPC may see a change and for the better. Wisdom
seems to have finally spread to Indian shores as well. The
sentiments of the Supreme Court point to a new, moderate and
modern India. This humanitarian step by the Supreme Court is a
welcome respite for persons who in the past have been harassed,
persecuted, beaten and blackmailed. The British amended the very
same law they had once promulgated in India. Now sec. 377 seems to
be outdated and a moral of a bygone era. In keeping with
international trends in jurisprudence and legal discourse, it is
important that our law is also brought in line with international
standards and the section be repealed.
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End Notes:
Aids Bhedbhav Virodhi Andolan V. Union Of India (civil writ
petition no.1745of 1994)
Gaur, K.D., The Indian Penal Code, P. 621,( Universal Law
Publishing, New Delhi, 2004)
Kharak Singh v. State of UP [ AIR (1963) SC 1295 ]
Munn v. Illinois [ (1877) 94 US 113 ]
Maneka Gandhi v. Union of India [ AIR 1978 SC 597 ]
From the Statement of Affirmation and Reconciliation by the Quaker
meeting in Aotearoa
 The
author can be reached at :manish_bana@legalserviceindia.com
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Same
Sex Relationship
