Author Name:   Subhadra

Homosexuality law: Males do not represent two discrete populations, heterosexual and homosexual. The world is not to be divided into sheep and goats.

Homosexuality- Is it natural and normal?

Males do not represent two discrete populations, heterosexual and homosexual. The world is not to be divided into sheep and goats. Neither all things are black or all things white. It’s a fundamental of taxonomy that nature rarely deals with discrete categories. Only the human mind invents categories and tries to force facts into separated pigeon-holes. The living world is a continuum in each and every one of its aspects. The sooner we learn this concerning human sexual behaviour the sooner we shall reach a sound understanding of the realities of sex - Anonymous.

Is it possible to choose our own identity at the time of taking birth? The answer is obviously in the negative. God has created all of us with the same mind frame and challenging god’s creations is out of every human beings reach. So why create such ruckus, differences and negative attitude regarding the third gender of human race? Are they not human beings? Are they not a part of our society? Who should be held responsible for answering all these questions? The legislators? Or WE THE PEOPLE?

Homosexuality to almost everyone around us is a psychological defect which can’t be cured. Homosexual people are always looked down upon as if they are some other species like alien from other planets; they are never treated with the due respect which they authorised to as fellow human beings. People treat homosexuality as abnormality and this is the shame of our Indian system unlike the west where homosexuality isn’t seen as a taboo or any abnormal behaviour, they see it as a very normal behaviour, after all every human beings has freedom to life and personal liberty, so choosing one’s sexual orientation is completely on their own free will.

Since 1975, the American Psychological Association has called up on psychologists to take the lead in removing the stigma of mental illness that have long been associated with lesbian, gay and bisexual orientations. The discipline of psychology is concerned with the well-being of people and groups and therefore with threats to that well-being. The prejudice and discrimination that people who have identify as lesbian, gay or bisexual regularly experiences have been shown to negative psychological effects. To understand the background of homosexuality, it’s very important to have a profound knowledge of the concept of sexual orientation. Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women or both sexes. It also refers to a person’s sense of identity based on these attractions, related behaviours and membership in a community of others who share those attractions. Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. However sexual orientation is usually discussed in terms of three categories: heterosexuals (having emotional, romantic, or sexual attractions to members of the opposite sex), homosexuals; gays and lesbians (having emotional, romantic or sexual attractions to members of one’s own sex) and bisexuals (having emotional, romantic or sexual attractions to both men and women).

This range of behaviours and attractions has been described in various cultures and nations throughout the world. Sexual orientation is distinct from other components of sex and gender, including biological sex (the anatomical, the physiological and genetic characteristics associated with being male or female) gender identity (the psychological sense of being male or female) and social gender role (the cultural norms that define masculine and feminine behaviour). In India the concept of homosexuality is directly related to mental illness or moral depravity. Rather it’s just the way a few of us wish to express our love and sexuality. It’s a matter of individual choice and also depends on one’s sexual orientation. Various researchers have different views on the source of sexual orientation. Some say it as a genetic factor on 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 one’s sexual behaviour but also reconstructing ones emotional, romantic and mental state of mind. Further scientists have proved that there are certain neuro-atomic 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. Even though history has threads leading us to believe of the existence of the 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 as 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 temple in 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 Kama sutra, which is hailed as the bible of intimate acts that completes a complete chapter referring to homosexuality.

The concept of homosexuality has been a part of our culture since the inception of human society, still it is treated with shame and looked down upon and consider as an alien concept. The “Markandeya Purana” carries the story of Avikshita, the song of a king who refused to marry because he believed he was a woman. And the story of Teeja and Beeja still resonates in Rajasthan folklore. In a beautifully crafted version by Vijaidan Detha, Teeja and Beeja, two women, are inadvertently promised to one another in marriage by their fathers. (Beeja is brought up as a boy, married as “man” to Teeja; they are happy together until Teeja suggests that she return to dressing as a woman. Driven out by the villagers, they pray to benevolent ghosts, and Beeja is turned into a man. But while this transformation is more socially acceptable, Teeja hates her new husband’s bullying and runs away. The story ends with the two living together as women, in the forest with the ghosts, safely away from the villagers). Ismat Chugtai’s “Lihaf” (The Quilt), was the subject of an obscenity trail in the 1940s, for her delicate evocation of the relationship between two women. It was much later, in the 1980s and 1990s, which contemporary Indian writers picked up from where Chughtai had left off. Vijay Tendulkar’s Marathi play, “Mitrachi Ghoshta”, was considered revolutionary for the 1980s because it had a lesbian protagonist- though it had a tragically conservative ending by today’s standards, where the protagonist commits suicide out of despair. Mr Seth’s “The Golden Gate”, written in verse, contrasted two Californian couples- John and Liz, and Phil and ED- both were trying to find their way to love in elegantly turned rhymes.

With the coming of the Aryans in 1500 B.C. and assertion of the patriarchal system of the 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 as thus homosexuality was considered to be contrary to god’s will and wrath. ‘The wrath of God is being revealed from heaven against all the godlessness and wickedness of men ... For although they knew God, they neither glorified him as God nor gave thanks to him, but their thinking became futile and their foolish hearts were darkened. Although they claimed to be wise, they became fools and exchanged the glory of the immortal God for images made to look like mortal man and birds and animals and reptiles. Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another.

They exchanged the truth of God for a lie, and worshiped and served created things rather than the Creator—who is forever praised. Amen. Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion’. In the 20th century, slowly but steadily, the whole 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 illness 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 individuals. 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 could 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 other related issues. Therefore, homosexuals in our country continued to be victimized by the state and the society.

 India is a democracy, and it has, in spite of all its flaws, relatively good human rights standards in the letter of the law, assured as constitutional guarantees to citizens and often ensured by a vigilant higher judiciary. This has earned India a justifiably good reputation in the international community. Yet, sadly, this good reputation itself allows the state to get away with abridging human rights- with persecuting and supporting the oppression of, sexual minorities in its territories. Its very reputation allows India to escape detailed scrutiny on this count. To maintain its reputation, India often offers lip service to received understandings in the area of international human rights. But in the case of sexual minorities, its practise is often remote from its promises. For example: when India formulated its national AIDS control policy and put the National Aids Control Organisation (NACO) in charge of implementing it, it made work with MSM, an area of focussed and targeted intervention.

This stemmed from the fact that MSM are recognized the world over as a group highly vulnerable to HIV/AIDS. As part of the same policy, the government of India invited the participation of NGOs and CBOs to carry on this work with MSM. All this is laudable, but the truth is different from the rhetoric. In reality, field staffs of these NGOs and CBOs face harassment from police every day, in public places where MSM socially interact. Outreach workers are often members of sexual minorities themselves, and they along with others are regularly beaten, blackmailed, extorted and threatened and sometimes even sexually assaulted and/or raped by policemen on duty. This obviously impedes intervention work and increases vulnerability. Moreover, these acts are clear violations of the rights to health and to life, as well as to personal security and dignity. Homosexuality in India is still looked down upon, and the western influence on this aspect of life could not do much. In December 2002 Naz India filed a Public Interest Litigation (PIL)to challenge IPCsection 377in the Delhi High Court. On 4 July 2008, gay activists fighting for decriminalization of consensual homosexuality at the Delhi High Court got a stimulus when the court opined that there was nothing unusual in holding a gay rally, something which is common outside India. On 2 July 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down much of S. 377 of the IPC as being unconstitutional.

The Court held that to the extent S. 377 criminalised consensual non-vaginal sexual acts between adults; it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. The High Court did not strike down S. 377 completely – it held the section was valid to the extent it related to non-consensual non-vaginal intercourse or to intercourse with minors – and it expressed the hope that Parliament would soon legislatively address the issue.Over the past 149 years of the Indian penal code’s existence, the infamous (if rarely enforced) section 377 of the Indian penal code has remained a psychological threat to India’s sexual minorities. It has resulted in countless instances of misery and harassment and spawned a thriving blackmail industry. The psychology of fear that the law beget, by its mere existence, has been lifted with the court’s ruling that it is unconstitutional. In that instance alone, a great wrong has been justified. For the millions of gays, lesbians and other sexual minorities in India and with the country’s population of 1.3 billion, a bulk of the nation will be able to hold their head high and be who they are, equal before the law (under article 14: Equality before law) and protection of life and personal liberty (under article 21) codified under the purview of the Indian Constitution, is both a huge psychological boost and an affirmation of their human dignity.

For urban, middle-class homosexuals, being gay in India is akin to being gay in the United States in the 1950s. The condition of homosexuals in small towns and rural India is far worse. Most homosexuals in India remain in the closet for cultural and social reasons, irrespective of the law; many still feel that the Delhi court’s ruling will not really impact their day-to-day lives as long as social stigmas remain. A noisy debate is underway and the media is revved up to cover a grand culture war. The religious groups have been vocal, but recent statements from an archbishop and a senior mullah have restricted themselves to morality and sin- underlying an appropriate separation between church and state. Predictably, they reiterate that homosexuality is a sin in the eyes of god, but also that every sin is not a crime. However, the media storm has brought a number of anti-gay prejudices and beliefs from ordinary people to the fore-revealing the warped images people have of what means to be gay, fed largely by stereotypical Bollywood portrayals of them as effeminate objects of ridicule. Coupled with religious orthodoxy, the risk of a prejudiced majority bullying a minority out of its rights runs high when emotions and feelings are aroused from moral outrage. Gay activist groups, which have been at the forefront of the fight for repeal of the law, are being careful not to fall into the trap. It is critical that they keep the framework of the debate where the court has pegged it- as an issue of fundamental rights- and thereby address our changing consciousness and society.

The real opportunity for the gay community in India now, after a favourite court ruling, is to concertedly address these social stigmas. It must also strive to make itself more visible- not in any stereotypical way, but by presenting itself to the public eye as it is, or rather as it emerges. As more people come out of the closet, if only to strengthen the court’s ruling by standing up and being counted, we also will be acknowledging a reality we have always known. Deep rooted cultural prejudices do take time to transform, but in this increasingly networked world, ideas- and the dreams they inspire- can move across countries, castes and creeds. The fact of being homosexual is not technically a crime in India- only (under section 377 of the Indian Penal Code) the act of “unnatural sex”. But “unnatural sex” has been interpreted by the courts to cover almost every mode of sexual expression between consenting adult males. Thus in India the state suppresses spaces where sexual minorities might socially interact- including clubs, bars and discotheques. Only private homes and public spaces remain available.

Since in India most homes offer little seclusion, any interaction there is also effectively limited. That leaves only public areas. Therefore homosexuals, hijras and transgender men continue to cruise in public areas in spite of the regular oppression of the police. And as a result the police also continue to have a field day for exploiting them. Thus effectively the state herds sexual minorities into public spaces by denying them other options; there, though, they can readily be exploited by state agents, namely the police, to obtain illegal gratification of all kinds. Law and state practise also have a devastating effect upon women. There is no law expressly criminalizing lesbian sexuality or conduct in India. Still, in the past, when lesbian relationships have come to light, the police have threatened the use of section 377 against them. So far as is known, no charges have actually been brought. Yet the state has also institutionally acted to oppress and suppress lesbians. In 1992, two women constables in the Madhya Pradesh police decided to marry in a public ceremony. The Madhya Pradesh police authorities expressed their outrage at what they called “obscene behaviour”: both women were forced to resign from the police force and disappeared from public view. The pressure of silence and invisibility is great. In the year 1999-2000 a Malayalam newspaper reported 7 suicides of lesbians in Kerala state. In the same year two girls in the state of Orissa entered into a notarized agreement to stay together.

When this came to light, the family of one of the girls who had strong local political connections, debarred her from moving out and apparently beat her. Ultimately the severe reaction of the family drove both the girls to attempt suicide by consuming poison. One of the girls died. Since then attempts by activists to contact the other girl have been thwarted by the family (this incident was recorded by the Indian NGO ABVA- “AIDS Bhedbav Virodhi Andolan”, or “Movement against discrimination based on AIDS”- in a fact-finding report called “for people like us”). Lesbians often face oppression and violence within their families when they express their sexuality or refuse marriage. They carry the double burden of being women in an oppressively patriarchal society, and of being lesbians. This burden can lead to violence within relationships. Also, there have been reports of lesbians who were raped by males to “cure them of lesbianism”. Many lesbians do not dare to report acts of violence, fearing the repression they would have to face if their sexuality became public knowledge. There have been unconfirmed reports from Nagaland of a lesbian woman who was confined to a police station and raped by the police for 5 months to punish her for being a lesbian. There have also been reports from lesbian women’s groups about women police officers sexually assaulting women prisoners to extract information. The violence and brutality increase if there is any indication of the prisoner being a lesbian. Due to the endangered condition of most lesbians, no complaint is preferred against these brutal abuses.

It’s high time that India come out and addresses the situation that is knocking at her door. We need to recognize homosexuality and in turn legalize gay unions rather than dealing this sensitive issue as abnormality.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. A lot need to be done to save the rights of the sexual minorities group and save them from harassment and shame from the people who look down upon them. Mere stating the rights in statutes would not be of any value until those rights and duties are made applicable to everyone without discriminating people on their sex, colour, caste, creed, and religion.

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 person’s 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.
~~~~~~~~~~~~~~~~~~~
# American Psychological Association 1975, available at:
# Bible (Romans 1:18a, 21-27).

# NACO established in 1992, is a division of India’s Ministry of health and family welfare that provides leadership to HIV/AIDS control programme in India through 35 HIV/AIDS Prevention and Control Societies, and is "the nodal organisation for formulation of policy and implementation of programs for prevention and control of HIV/AIDS in India."

# MSM, men who have sex with men, a medical and social research designation.
# NGO, Non-Governmental Organization.
# CBO’s, Community based organizations.
# PIL- in Indian law, public interest litigation (PIL) is litigation for the protection of the public interest.

# S.377 (IPC) Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten Year, and shall also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal Intercourse necessary to the offence described in this section.

# WP(C) No. 7455/2001.
# Article 14, Right to Equality- the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

# Article 15, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

# Article 21:Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
# Supra 8.
# Supra 10.
# Supra 8.

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