- Published: September 28, 2022
- Updated: September 28, 2022
- University / College: Concordia University
- Language: English
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HOMOSEXUALITYAND LGBT RIGHTS IN INDIA Ø Introduction § Inthis present era many type of new things are emerging because change is the lawof nature and change is also the demand of time so emergence of new challengesand events are necessary for the development of society.
§ Aswe know that LGBT (Lesbian, Gay, Bisexual and Transgender) peoples are underconflict regarding their legal rights because in India there is a poor mindsetinvolved in minds of Indians in respect of LGBT peoples so first of there is athing that is humanity and they have right to treat like other humans. § Inthis present era where constitution is supreme and equality before law exist; it is necessary to provide them equal status as like other peoples of India. § Inour judiciary various steps are also taken and some steps are in process whichis made for the protection and promotion of the rights of LGBT peoples in thesociety. § LGBTpeoples facing various type of critical situations in society which bars theirlife of living and according to Maneka Gandhi v/s Union of India , courtheld that right to life guaranteed under Article 21 of Indian Constitution, does not mean mere only right to breath, right to life includes right toprestigious life. § LGBTpeoplesface many problems in various fields such as employment, education, behaviourfrom society, standard of living, etc so all these things make their dignity indanger which is the violation of Article 21 of Indian Constitution. § Inthe step of development of our country it is necessary to develop each and everycitizen of country so non development of LGBT peoples will affect the developmentof whole country so if we want to make our country developed then we have toprovide all equal rights as like others to theses peoples. Definition§ Theword homosexuals literally means as ‘ of the same sex.
§ TheGreek term homo meaning ‘ same’ and Latin root meaning ‘ sex’.§ Homosexualityis a sexual orientation characterized by sexual attraction or romantic loveexclusively for people who are identified as being of the same sex.§ Peoplewho are homosexual, particularly males are known as ‘ gay’, gay females areknown as ‘ lesbians’.§ Thatis homosexual marriages, sometimes referred to as gay marriage, indicates amarriage between two persons of the same sex. History§ If we read our history then itcan be concluded that homosexual relationship come from Ancient Greece, where samesex relationship were the societal norm. § According to Researchers suggestthat the Catholic Church, which has been extremely vociferous in its oppositionto homosexuality in general, approved of same-sex marriages for over 1 500years, only ceasing to perform them in the nineteenth century.
§ In preindustrial societies alsohomosexuality was generally accepted by the lower classes while some members ofupper classes considered it immoral§ The sexual orientation in premodern era as depicted in love poetry and paintings and even in historicfigures such as Alexander the great, Plato, Hadrian, Virgil, Leonardo da Vinci, Michelangelo and Christopher Marlowe included or were centered uponrelationship with people of their own gender.§ Homosexual marriages are alsoknown as gender-neutral marriage, equal marriage, and gay marriageHowever theterm homosexuality appears in print for the first time in 1869 in an anonymousGerman§ Thus homosexuality is not a newphenomenon. Even instances of homosexuality are available in Hindu Mythology.
§ The literature drawn from Hindu, Buddhist, Muslim, and modern fiction also testifies the presence of same-sexlove in various forms. Ancient texts such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality. 9 Also there arereports that same-sex activities are common among sannyasins, who cannot marry. Thus instances of homosexuality are available in historical and mythologicaltexts world over and India is not an exception to this.§ The Cultural residues ofhomosexuality can be seen even today in a small village Angaar in Gujarat whereamongstthe Kutchi community a ritualistic transgender marriage is performed during thetime of Holi festival. This wedding which is being celebrated every year, forthe past 150 years is unusual because Ishaak, the bridegroom and Ishakali thebride are both men. 10§ Thus the history is filled withevidences proving the existence of homosexuality in past.
Whereas in thepast 10years world over, for the lesbian and gay rights, we find that the legalinitiatives have shifted from the right to be privately sexual, that is theright to have same-sex relationships at all, to the right to beindividual civicsubjects, protected from discrimination in the work place and in the provisionof services, toward the right to have relationships given status by the law. § This shift in rights-focus, fromdecriminalization, to civil protection, to civil recognition is, not entirely a linear one. Thusin recent yearsa number of jurisdictions had relaxed or eliminated laws curbinghomosexual behavior.
Legal Status of Homosexuals inIndia § Section37730 of the Indian Penal Code (1860) relates to Unnatural Offences and includeshomosexuality within its domain.§ InIndia this Law relating to homosexuality was adopted from the British penalcode dating to 19th century. Section 377 states:” Whoevervoluntarily has carnal intercourse against the order of nature with anyMan, woman or animal, shall be punished with imprisonment for life, or withImprisonmentof either description for a term which may extend to ten years andShallalso be liable to fine.
“§ Section292of IPC refers to obscenity and there is ample scope to include homosexualityunder this section.§ Section294of Indian Penal Code, which penalizes any kind of “ obscene behaviour inpublic”, is also used against gay men.§ SexualOffenders Act 1967 in England the offence of homosexualitybetween consenting partners has been abolished by the Sexual Offenders Act 1967(that is in the country of origin of this law) whereas in India, the consent isquiet immaterial for constituting an offence as defined under this section.§ Thusin India it is primarily section 377 which explains and defines unnaturaloffences.
32 It is this section which makes Homosexuality illegal with lifeimprisonment or with imprisonment for ten years with fine.§ Underthis clause, a third party can sue the partners who voluntarily entered intosodomy thereby infringing on the right to personal liberty and privacy asenshrined in the Fundamental Rights of the Constitution. § DipikaJain, Impact of the Naz Foundation Judgement on The Gay, Bisexual andTransgender People in Delhi: An Empirical Investigation, 2 Centre for HealthLaw, Ethics and Technology, Jindal Global Law School§ NirnimishKumar, Delhi High Court strikes down Section 377 of IPC, The Hindu(03/07/2009), available athttp://www. hindu. com/2009/07/03/stories/2009070358010100. htm , last seen on12/5/2014§ SureshKumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.§ GovindarajaluIn re, (1886) 1 Weir 382.
§ Khanuv. Emperor, AIR 1925 (Sind).§ LosanaVasantlal Devchand v. State, AIR 1963 Guj 252.
§ Stateof Kerala v. Kudumkara, (1969) CriLJ 818.§ Calvin Francis v. Orissa, (1992) 2 Crimes 455.§ Fazal Rab Choudhary v.
State of Bihar, (1982)3 SCC 9.§ SureshKumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.§ SupremeCourt says gay sex illegal , govt hints at legislative route, Hindustan Times(11/12/2013)§ Jayalakshmiv. State of Tamil Nadu (2007) 4 MLJ 849.§ Ss. 299-377, The Indian Penal Code, 1960.
§ SKrishnan and Ors. v. The State of Madras, AIR 1951 SC 301.§ MuraliKrishnan, In Conversation with V Giri, Bar and Bench (18/12/2013)§ S. 377, The Indian Penal Code, 1960.§ Art. 21, the Constitution of India. Cases and Sentence§ Inthe history of the statute from, 1860 to 1992 there were only 30 cases in theHigh Courts and Supreme§ Court.
Out of these 30 cases, 18 were non-consensual, 4 were consensual of which 3were before 1940 and 8 were unspecified and 15 out of 30 cases registered wereassault on minors.§ Ina judgement Fazal Rab Vs State of Bihar, the Supreme Court was dealing with acase where a man had homosexual relations with a boy with the consent of theboy.§ TheSupreme Court in 1983 observed that: ‘ the offence is one under Sec.
377, IPCwhich implies sexual perversity. Considering the consent of the boy, theSupreme Court reduced the sentence from 3 years rigorous imprisonment to sixmonths rigorous imprisonment.§ AlsoSection 377 had been used to intimidate women, particularly in the case ofwomen who have run away together or if they make their relationship-known.
§ In1987, Tarulata/Tarun Kumar underwent female to male sex change operation andmarried Lila in 1989. Lila’s father filed a petition in the Gujarat High Courtsaying that it is a lesbian relationship and that the marriage be annulled. Thepetition contends that ‘ Tarun Kumar possesses neither the male organ nor anynatural mechanism of cohabitation, sexual intercourse and procreation ofchildren Adoption of any unnatural mechanisms does not create manhood and assuch Tarun Kumar is not a male. The petition called for criminal action underSec. 377.§ Thelegal status of homosexuality in the Indian Armed Forces follows the model setby Sec.
377 of IPC. § Sec. 46 of chapter VI – offences of the Army Act, 1950 states: any person subject tothis Act who is guilty of any disgraceful conduct of a crude, indecent orunnatural kind shall on conviction by court-martial, be liable to sufferimprisonment for a term which may extend to seven years or much lesspunishments as is this Act mentioned. Similar provisions exists in the Airforce Act and Navy Act. § Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to theoffences described in this section. Essentail Ingredients i. That there must bevoluntarily carnal intercourse against the order of the nature.
ii. That it maybe with man, woman or animal. Classification of offence Punishment –Imprisonment for life or imprisonment for 10 years and fine – cognizable – NonBailable – Triable by Magistrate of first class – Non-Compundable. § In1992, 18 men were arrested from a park in New Delhi on the suspicion that theywere homosexuals.§ Afterprotest and demonstration by gays, lesbians and human rights groups, they werereleased from police custody after filing a petty case against them.
In factthey were not indicated under Sec. 377 but under the provision of public nuisanceunder the Delhi Police Act.§ Similarlyin 2001, the Delhi High Court admitted a petition challenging theconstitutional validity of the article on the ground that it “ criminalizeshomosexual acts” even between two consenting adults and impedes AIDScontrol efforts among homosexuals§ Delhi’sTihar Jail, on the grounds that Section 377 makes homosexuality illegal. § Ahuman rights activist. group ABVA filed a Public Interest Litigation in theDelhi High Court.
The petition challenged the constitutional validity of Sec. 377 of IPC and advocates supply of condoms to jail inmates, with a plea torestrain the authorities from segregating or isolating prisoners withhomosexual orientations or those suffering from HIV/AIDS. § Thepetition urges that Sec. 377 is obsolete and must be struck down as beingunconstitutional on the grounds that Right for Privacy is part and parcel of theFundamental Rights of life and liberty under Article 21 of the constitution andrecognised by the 1948 International Convention on Human Rights. Sec.
377 is aviolation of Article 14 of the constitution since it discriminates persons onthe basis of their sexual orientation; having been enacted in 1860, Sec. 377 isarchaic, absurd and implemented by the British in all its colonies, includingIndia, but now been repealed in England, the country of origin.§ 48Section 292 to 294 of Indian Penal Code enumerates obscenity. Subsection (1) tosection 292 of the code defines obscene publication and rest of the part ofsection 292 and Section 293 of the code, Prohibits the sale and distribution ofobscene Publications and Sec 294 of the code prohibits obscene acts and songs.§ twomonths’ imprisonment. In yet another case the Supreme Court reduced thesentence of the accused to six months imprisonment as the accused whilecommitting sodomy did not use force on the boy.
§ Ina case of Himachal Pradesh where a truck driver twice committed sodomy on a boyin his truck, a sentence of one year’s imprisonment and a fine of Rs. 500. 00were imposed on the accused.§ Allthese instances indicates that the actual sentence imposed under this sectionis not usually heavy. Activists Movement§ Gayrights activists have been battling against Section 377 for a decade.
In 1994, lesbian and gay groups filed a petition challenging the law in the Delhi HighCourt. The case has dragged on for five years and has evoked strongreactions. 52 In 1996 even members of the Indian lesbian collective Stree Sangammade a presentation on domestic-partnership laws to a government conference onmarriage and family law.§ Itwas “ perhaps the first time that a lesbian/gay group attempted to createpublic opinion on the issues in such a forum,” the group said in a letterto the gay magazine Trikone.
“§ InFeb 99 there was second national LGBTconference Indian National Gay ConferenceYAARIAN -99.§ Similarlythe attacks on the film ‘ Fire’ and ‘ Girlfriend’ have led a number oforganizations to set up the campaign for Lesbian Rights. The petition, filed bythe voluntary organization, argued that it is wrong for homosexuality to be apunishable offence in 21st century India.§ Howeverthe most recent legal challenge comes from the Naaz Foundation Trust, NewDelhi. 58 Naaz India has filed a writ petition challenging Section 377 in theDelhi High Court on December 7th, 2001 on.§ Section377 violates the right to life and personal liberty, the right to equality andthe right to freedom guaranteed to all citizens as Fundamental Rights under ChapterIII of our Constitution.
Similarly other gay and lesbian groupslike Hamsafar of Mumbai, Sahayathrika of kerela, etc. are also raising gayissues in the mainstream. Mainstream Reaction§ Indiansociety is a traditional multicultural diversified integrated society where inHindus dominate. And for Hindus marriage is an enduring heterosexual Sacrament.
§ OtherIndian communities also have similaropinion that marriage is a heterosexual institution. This is supported by Vishwa Hindu Parishad Party, whose president says forHindus, this kind of behavior is not just against nature, it is against ourculture. § EvenShiv Sena members attacked theaters in New Delhi and Bombay where the filmfire’ (1988) and ‘ Girlfriend’ (2004) was being screened they tore down posters, smashed furniture and organized violent protests. § thelast five years, the Indian gay community has moved into and flourished on whathas probably been the most accepting space they could have ever hoped to find-the Internet. Thus they are forming NGOs, calling up help-lines and meetingregularly to evolve strategies for their cause. § Aboveall, Although the high court in Delhi has dismissed the legal petition that soughtto legalise homosexuality. The court ruled that the “ validity of alaw” cannot be challenged by anyone who is “ not affected by it”.
§ thisfeeling of isolation is often accompanied by self-loathing and confusion as totheir future this is so because Section 377 which is used to criminalise andprosecute homosexuals in actual legitimizes the abuse of homosexuals. Infact” Gays are beaten up and even raped under the cloak of this law,” says gay rightsactivist Rakesh Shaleen of Naaz Foundation. Rakesh also refers to a case that” Two years ago, gays were forced into medication to ‘ cure’ them. § Thismistreatment included shock and aversion therapy.
When we petitioned the NHRC, the case was rejected in the light of Section 377.” § ThusGay right activists and homosexuals has now started demanding social and legalrecognition ofhomosexualitybecause they have a firm opinion that Legal protection is probably the only wayby which homosexual community can be guaranteed social rights, rights againstexploitation and more importantly, health rights.