Homosexuality In India – A battle half won

Nishi Jain

ABSTRACT

This research study examines homosexual weddings in India as an unseen conflict that is successfully concealed. Additionally, it aims to define and explain other aspects of homosexuality, such as its evolution, the motivations for such relationships, and the cultural attitudes and reactions to such relationships. The author also provides insight into countries that have accepted homosexual weddings and discusses their outcomes as a result of legalising homosexual relations. At the conclusion, the author makes a case for and against legalising homosexual marriages in India, based on theoretical facts and evidences.

INVISIBLE CONFLICT - HOMOSEXUALITY IN INDIA

The institution of marriage is widely believed to apply primarily to male-female relationships, despite the fact that the majority of marriage regulations contain gender-neutral terminology. Whereas, numerous cases of acceptance of homosexual marriages have emerged recently as society becomes more tolerant. This shift is evident in the growing number of jurisdictions decriminalising similar activities. Despite widespread criticism from groups and individuals who believe the sodomy legislation is outmoded and should be repealed, many jurisdictions have preserved their statutory prohibitions on homosexual marriages. As a result, same-sex partnerships, regardless of duration, are not legally recognised in the majority of countries, depriving homosexual couples of many of the legal and economic benefits associated with married status. These include job benefits, the opportunity to file joint tax returns, and, perhaps most significantly since the onset of AIDS, health benefits and rights resulting from a partner's death, including interstate inheritance. Many of these benefits are available to heterosexual de facto partners in general, but remain unavailable to homosexual de facto couples.

DEFINITION

The term homosexuals literally translates as "of the same sex," a combination of the Greek prefix homo, which means "same," and the Latin root, which means "sex." Homosexuality is a sexual orientation that is defined by sexual attraction or romantic affection between individuals who are of the same sex.

Individuals who are homosexual, mainly males, are referred to as 'gay'; homosexual females are referred to as 'lesbians'.

That is, homosexual marriages, sometimes known as gay marriages, relate to unions between people of the same sex.

HISTORY

The first western document on homosexual relationships dates all the way back to Ancient Greece, when same-sex relationships were the social norm. Even homosexual weddings were common in the past, both within Christian and non-Christian civilizations.

Research indicates that the Catholic Church, which has been outspoken in its hostility to homosexuality in general, approved of same-sex weddings for over 1500 years before discontinuing their practise in the nineteenth century.

Similarly, homosexuality was commonly accepted by the lower classes in preindustrial society, but some members of the upper classes thought it immoral. However, as urbanisation and the nuclear family spread, homosexuality became much less tolerated, and in certain cases, illegal. The sexual orientations of pre-modern individuals such as Alexander the Great, Plato, Hadrian, Virgil, Leonardo da Vinci, Michelangelo, and Christopher Marlowe included or were centred on relationships with members of their own gender.

However, the term homosexuality first appears in print in 1869 in an anonymous German pamphlet entitled Paragraph 142 of the Prussian Penal Code and Its Maintenance Paragraph 152 of Karl Maria Kertbeny's Draft of a Penal Code for North German Confederation. This leaflet pleaded for the abolition of Prussia's sodomy restrictions.

As a result, homosexuality is not a recent development. Even homosexuality is mentioned in Hindu Mythology.

Hindu, Buddhist, Muslim, and contemporary fiction all attest to the occurrence of same-sex love in various forms. Homosexuality is mentioned in ancient books such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads, and Puranas.

Additionally, there are rumours that same-sex activities are prevalent among sannyasins who are not permitted to marry. Thus, homosexuality is documented in historical and mythological texts throughout the world, and India is no exception.

Even today, the cultural remnants of homosexuality may be witnessed in a small town in Gujarat called Angaar, where the Kutchi community performs a ritualistic transgender marriage during the Holi festival. This wedding, which has been celebrated annually for 150 years, is unique in that both Ishaak, the groom, and Ishakali, the bride, are men.

Thus, history is replete with examples demonstrating the presence of homosexuality in the past. Whereas, over the last decade, legal initiatives for lesbian and gay rights have shifted away from the right to be privately sexual, that is, the right to have any same-sex relationships at all, toward the right to be individual civic subjects protected from discrimination in the workplace and in the provision of services, and toward the right to have relationships accorded status by a court. This movement in emphasis away from criminalization and toward civil protection and recognition of rights is not totally linear. As a result, a number of governments have recently reduced or repealed laws against homosexual behaviour.

HOMOSEXUAL MARRIAGES: THE GLOBAL SCENARIO

When confronted with the reality of homosexual relationships, civil authorities take a variety of viewpoints. At times, they merely tolerate the phenomena; at others, they argue for legal recognition of such unions on the grounds of avoiding discrimination against people who live with someone of the same sex in specific areas of the law. In other circumstances, they favour legal equivalence of homosexual partnerships to officially defined marriage, as well as the legal option of adopting children. As a result, an increasing number of governments have abolished the criminalization of homosexual activities. Despite widespread criticism from groups and individuals who believe the laws are antiquated and should be repealed, several jurisdictions have preserved their statutory restrictions on homosexual conduct.

Regardless, the last century has seen significant shifts in the way homosexuality is seen. Since 1974, homosexuality has been de-classified as an aberrant behaviour and is no longer classified as a mental disease. Since then, other countries have decriminalised homosexuality. Numerous states throughout the world have implemented anti-discrimination or equal opportunity laws and policies to safeguard homosexual and lesbian rights.

In the late 1990s and early 2000s, movement toward and prohibitions on same-sex marriage sparked global debate. Currently, six nations recognise same-sex weddings on a national level: the Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), and South Africa (2005). (2006). Massachusetts, in the United States of America, likewise recognises same-sex unions (although these marriages have no legal recognition at the federal level in the US). This will result in an estimated 155 million people worldwide, or roughly 2.5 percent of the world's total population, living in countries that allow same-sex marriage.

Thus, the legal status of homosexuality varies per country. In England, for example, homosexual partnerships involving anal intercourse between consenting adults are lawful as long as they are 21 years or older and conduct themselves privately. However, such active sexual relationships between men remain banned in India. Consent age varies by country as well, ranging from as early as 10 in Hungary to as old as 23 in Spain.

HOMOSEXUALITY IN INDIAN SOCIETY

In India, no such gradual developments in terms of social and legal recognition have occurred, and gays continue to be victims of various forms of abuse sponsored by the state and society. In India, gays have grown from a fragmented group of a few hundred to a ten-crore strong and expanding community with its own nightlife and activities. They are infiltrating metropolises and semi-urban societies both online and offline.

This number is steadily increasing as more of these individuals come out of the closet. While Delhi and Mumbai (each of which have five lakh homosexual residents) and, to a lesser extent, Bangalore and Calcutta are the epicentres of the Indian LGBT movement, residents of smaller towns in Gujarat, Maharashtra, and Bihar are also coming out.

These Indian gays communicate live in chat rooms, seek soul mates, fall in love, have sex online, and travel cities to be with one another in the real world.

This demonstrates that homosexual partnerships are not uncommon in India, but they are more prevalent in the country's major cities, where individuals can be more open about their sexual orientation.

Numerous cities and larger towns in India, including Karnataka, Delhi, Mumbai, Calcutta, Bangalore, Hyderabad, Pune, Chennai, Patna, Lucknow, Akola, Trichi, and Gulbarga, had a variety of resources for gays, lesbians, and transgender communities, including helplines, publications/newsletters, health resources, social spaces, and drop-in centres. The homosexual communities of Calcutta, Mumbai, and Bangalore have also organised gay pride marches in recent years. All of the aforementioned examples demonstrate that India's homosexual population is visible and is gradually getting more vocal in its demands.

LEGAL STATUS OF HOMOSEXUALS IN INDIA

Section 377 of the Indian Penal Code (1860) deals with Unnatural Offences and specifically mentions homosexuality. In India, this law against homosexuality was derived from the nineteenth-century British penal code. Section 377 provides the following:

“Whoever willfully engages in sexual intercourse with any man, woman, or animal in violation of the natural order shall be punished with life imprisonment or with imprisonment of either sort for a term not exceeding 10 years, and shall also be subject to a fine.”

Similarly, section 292 of the IPC refers to obscenity, and there is enough opportunity for this clause to encompass homosexuality.

Additionally, section 294 of the Indian Penal Code, which criminalises "obscene behaviour in public," is utilised against gay males.

It is critical to note here that in England, the offence of homosexuality between consenting partners has been abolished by the Sexual Offenders Act 1967 (that is, in the country where this law originated), whereas in India, consent is largely irrelevant in determining whether an offence as defined in this section has occurred.

Thus, in India, section 377 is primarily responsible for explaining and defining unnatural offences.

This provision makes homosexuality a capital offence punishable by life in prison or ten years in jail plus a fine.

CASES AND SENTENCE

. Between 1860 and 1992, only 30 cases were heard in the High Courts and Supreme Court under the statute. 18 of the 30 incidents were non-consenting, 4 were consensual, three of which occurred prior to 1940, and eight were unspecified, and 15 of the 30 cases were assault on minors.

The Supreme Court dealt with a case (Fazal Rab Vs State of Bihar) in which a man had gay relations with a boy with the boy's consent.

In 1983, the Supreme Court stated that "the offence is one under Section 377 of the IPC, which entails sexual perversity."

Taking into account the boy's assent, the Supreme Court lowered the punishment from three years to six months of harsh incarceration.

Additionally, Section 377 had been used to intimidate women, particularly those who had fled together or who made their relationship public.

Tarulata/Tarun Kumar had a sex transition procedure in 1987 and married Lila in 1989.

Lila's father petitioned the Gujarat High Court, claiming that the connection is homosexual and that the marriage should be invalidated.

The petition asserts that 'Tarun Kumar lacks the male organ and no natural mechanism for cohabitation, sexual intercourse, or child procreation.

Tarun Kumar is not a male due to his adoption of any artificial procedures. The petition sought criminal prosecution under Section 377.

At 1992, 18 guys were arrested in a New Delhi park on suspicion of being homosexuals.

They were released from police custody following protests and demonstrations by gays, lesbians, and human rights organisations. Indeed, they were suggested not under Sec. 377 but under the Delhi Police Act's public nuisance provision.

Similarly, in September 1994, jail authorities in India invoked Section 377 of the Indian Penal Code, which criminalises sodomy, to defend their reluctance to supply condoms to inmates.

Similarly, in 2001, the Delhi High Court granted a petition challenging the article's constitutional validity on the grounds that it "criminalises homosexual conduct" even between consenting adults and obstructs efforts to combat AIDS among homosexuals.

Despite multiple hearings, the case is still pending in court.

In 2004, a parcel containing a few copies of a homosexual and lesbian magazine aimed at South Asians from the United States was seized by the Customs department under Section 292 of the IPC and distributed to subscribers. They stated that this publishing violates the law by being obscene and offensive to the country's morality.

This case was closed when the addressee discarded the parcel due to the absence of a return address. In a recent instance involving a highly educated individual who committed this offence, the Supreme Court, taking into account his loss of service and other professional implications, sentenced him to two months in prison.

In another case, the Supreme Court lowered the defendant's sentence to six months in jail since the defendant did not use force against the youngster while committing sodomy.

In a case in Himachal Pradesh, a truck driver was sentenced to one year in prison and a fine of Rs. 500.00 for twice committing sodomy on a youngster in his truck.

All of these examples demonstrate that the actual penalty imposed pursuant to this clause is not typically severe.

ACTIVISTS MOVEMENTS

For a decade, gay rights campaigners have fought Section 377. Lesbian and LGBT organisations challenged the law in the Delhi High Court in 1994. For five years, the case has dragged on and elicited heated reactions.

In 1996, members of the Indian lesbian collective Stree Sangam addressed a government conference on marriage and family law with a presentation on domestic-partnership rules.

It was "perhaps the first time that a lesbian/gay group attempted to shape public opinion on these problems in such a platform," the group wrote in a letter to the homosexual magazine Trikone.

In February 1999, the Indian National Gay Conference YAARIAN -99 held its second national LGBT conference.

Similarly, the attacks against the films 'Fire' and 'Girlfriend' prompted a number of organisations to establish the Lesbian Rights Campaign.

The appeal, submitted by the non-governmental organisation, contended that homosexuality should not be a punished offence in twenty-first-century India.

The most recent legal challenge, however, comes from the New Delhi-based Naaz Foundation Trust.

On December 7th, 2001, Naaz India filed a writ suit in the Delhi High Court contesting Section 377 on the grounds that it violates the right to life and personal liberty, the right to equality, and the right to freedom granted to all citizens under Chapter III of our Constitution.

Similarly, other gay and lesbian organisations, such as Hamsafar of Mumbai and Sahayathrika of Kerala, are bringing LGBT problems to the forefront.

HOMOSEXUALITY : THE ARGUMENTS

Homosexual Marriages Should Not Be Legalised

Homosexual Marriages Should Be Legalised

1.   Marriage is historically defined as the uniting of a man and a woman.

1. There   is no moral basis for maintaining marriage as a heterosexual institution. For   instance, slavery was formerly legal but has since been banned on   humanitarian grounds.

2. The   institution of marriage entails procreation and child rearing.

2. If   this were the case, attempts would have been made to restrict marriages   between sterile women and fertile men, or vice versa. Nor is there any   legislation requiring a married couple to have children. While gays cannot   reproduce within their relationship, there are other ways for them to have   children, including adoption and artificial insemination.

3. The   nuclear family in its conventional form consists of eight fundamental   relationships (husband, wife, father, mother, son, daughter, brother, and   son).

3. The traditional   definition of family as a mother, father, and children is no longer accurate   in today's culture.

4.   Because these unions lack sexual complementarity, they obstruct the proper   development of infants placed in their care.

They   would be robbed of either parenting or motherhood experiences. Additionally,   this is gravely immoral and directly contradicts the concept recognised by   the United Nations Convention on the Rights of Children, which states that   the best interests of children as the weaker and more vulnerable party must   always take precedence.

4.   According to scientific research and psychologists, it is the parents' love   and commitment that makes a difference, not their gender. Children raised by   homosexual couples are just as good as those raised by heterosexual ones.

5.   Marriage is a sacred institution; nonetheless, the homosexual propensity is   "objectively disordered," and homosexual couples commit   "severe transgressions against chastity."

5.   Religion does not constitute an impediment. Numerous Buddhist sects openly   promote homosexual relationships. Homosexuality is depicted in every major   religious legend.

6.Same-sex   marriages are a novel concept.

6.   Homosexual marriages are not a novel concept. Since 1989, homosexuality has   been legal in Denmark. The experiment's findings show that homosexual   marriages have actually been beneficial in terms of civilising and   strengthening not only the institution of marriage, but also society as a   whole. Thus, perhaps we should accept the fact that the experiment has   already been conducted and the result as positive.

7.   Same-sex marriages would pave the way for legalised incest, bestial   marriages, polygamy, and a slew of other heinous repercussions.

7. If   the argument were accurate, it would have occurred in nations where gay   marriage is already legal.

8. Gay   weddings would compel businesses to provide the same benefits to homosexual   sex couples as they do to heterosexual sex couples.

8. There   is no contradiction with the argument because everyone is equal and has the   same fundamental rights.

9.   Homosexual marriages are biologically impossible.

As a   result, the Sodomy law must be strengthened.

9.   Homosexuality is a natural state of being. There is widespread consensus   among experts that sexual orientation is established by genetic factors and   occurs between the ages of five and six.

10.Homosexual   marriages are a result of the complex individualistic postmodern industrial   utilitarian society that exists today.

10.   Homosexuality has been documented in ancient, mediaeval, and modern India.   This is not the progression of postmodern society.

11.   There are no rights that compel a state to recognise any partnership that   does not conform to the traditional concept of marriage.

11.   Denying legal recognition violates citizens' rights.

12.   Decriminalizing homosexual weddings will encourage homosexuality, undermining   the entire structure of marriage and family.

12.Sexual   orientation is a hereditary trait, and it seems improbable that   decriminalisation will result in an increase in the incidence of   homosexuality.

13. The   societal attitude is that it is opposed, despised, and even feared. That is,   people are uneasy with the concept of homosexual marriage.

13.Homosexual   marriages have the potential to challenge traditional gender hierarchies.   They oppose patriarchy and the male supremacy that results from it, and are   thus penalised for not actively engaging in the daily maintenance of women   oppressed.

14. Heterosexuality   has the advantage of reducing the pace with which sexually transmitted   diseases spread.

14.Laws   prohibiting and/or penalising homosexual behaviour obstruct public health   programmes by driving many vulnerable persons underground.

15. If   homosexuality is legalised, the human species will face extinction due to   homosexuals' lack of reproductive capacity.

Indeed,   gays are doing the earth a favour by not bringing additional hungry mouths   into this already overcrowded globe. Simultaneously, species continuity   cannot be jeopardised by sexual minorities that account for less than 10% of   the global population.

16.   Invoking the principles of respect, nondiscrimination, and individual   autonomy to advocate legal recognition of homosexual relationships is   illogical. It is quite another to assert that activities that do not   contribute significantly or positively to the human development in society   can acquire particular and categorical legal recognition from the State.

16.   Section 377 of the IPC infringes the right to life and personal liberty, the   right to equality, and the right to freedom enshrined in Chapter III of the   Indian Constitution as Fundamental Rights.

17.   Sodomy was and still outlawed.

17. In   nations where homosexuality is permitted, sodomy law is opposed and deemed   obsolete due to social dynamics.

18.   Homosexuality is a medical condition. Additionally, the Indian Psychiatric   Society recognises homosexuality as a form of mental disease.

18. In   1973, the American Psychiatric Association and the World Health Organization   both eliminated homosexuality off their lists of mental diseases.

19.   Decriminalization may help alleviate some of the stigma associated with   homosexuality and may have a beneficial effect on the relationships between   homosexuals and their families.

19.   Criminalization encourages unfavourable cultural attitudes toward   homosexuality, which results in increased discrimination and hence has a   detrimental effect on the self-esteem of many homosexuals, frequently   resulting in deceit and family conflict.

CONCLUSION

All of the above-mentioned arguments for and against homosexuality indicate that Indians are aware of homosexual events occurring throughout the world and their legalisation, yet they have certain reservations regarding homosexual interactions. By and large, Indian society disapproves of homosexuality and views it as a criminal offence, even when adults engage in private homosexual behaviour.

Thus, when the Indian societal matrix and the rising struggle within the institution of marriage are considered, the desire for legalising homosexual marriage is neglected and dismissed. However, in the near future, society's preconception of marriage as a heterosexual institution involved with procreation and child raising may encompass homosexual weddings in which love between the partners takes precedence over gender. Then, by failing to acknowledge the changing character of society and the family, more harm than good will occur. Although there is still a long way to go before this occurs. However, the demand for legalising homosexual marriages unavoidably creates a new struggle within the institutions of marriage, family, and law. However, granting social and legal acceptance is not as straightforward in this traditional society as it has been in western nations, and ignoring this rising tension within the institution of family and marriage will be shortsighted and may have disastrous consequences if not handled properly.

Thus, it is past time for the Legislature, Executive, Judiciary, and society at large to acknowledge that people with same sex attractions do exist. They must also recognise that legalising homosexual relations does not simply authorise sexual behaviour; it also decriminalises the lives of persons who are involved in such sexual acts.

Finally, if laws are designed to represent socially acceptable dos and don'ts, a shift in thinking is necessary. Otherwise, ordinary human people would continue to be exploited inhumanely simply because nature has nurtured them with the desire to be unique.