Homosexuality in India

  • August 5, 2017
  • 3:11 am
  • lexnayanshi

It is natural tendency that persons of one gender are sexually or emotionally attracted towards persons with opposite gender i. e. males are attracted towards females and vice versa. But sometimes and in some cases this sexual or emotional attraction is not towards opposite sex rather it is towards the same sex persons.

This same sex attraction or orientation is known as Homosexuality and persons with such orientation are called as Homosexuals. Homosexuals can be persons of both the sexes i.e. Gays (male-male) and Lesbians (female-female). Another term LGBT is also commonly used for persons with homosexual orientations; LGBT being abbreviation of Lesbians, Gays, Bisexuals and Trans-genders.

Discriminations faced by homosexuals in our society are at various levels; beginning from within their homes to outside world as a whole. Their entire life is a struggle only because they are born with a particular sexual orientation which is different from others. In fact it is proved through various scientific or psychological studies that such behaviours are perfectly natural.

Our society is a very complex one; at one side we are most modern of societies of the world with all the liberal thoughts and beliefs but at on another level we are the most conservatives of societies of the world. Thus, the society as whole has not accepted persons with different or so-called unnatural sexual behaviour. India has a very dynamic and progressive Constitution which in a way is the backbone of this very vast and complex nation. The Indian Constitution provides rights and protections to each and every citizen of this country whether he is in majority or in minority. The Constitution treats everyone equally without any discrimination. It is the duty of the State to ensure that no one should be discriminated against.

LGBT community persons are in minority and they too have equal constitutional rights. But their right to equality and right to get equal treatment in the society are violated on regular basis. Not only society as whole but State machinery also treat them differently, especially police. They are regular victim of rights violations. They are deprived of their basic human right and right to life which includes right to enjoy life properly.

Section 377 of the IPC says:
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 with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

Thus the section makes any sexual activity against the order of the nature as criminal offence. Even voluntary act of such kind is punishable. Thus consent between two persons of same gender for such activity is immaterial. Therefore, section 377 criminalizes homosexual activity and makes it punishable with as high punishment as life imprisonment.

This provision of IPC has become a major controversial point and topic of debate in recent times. People of LGBT community are trying from quite sometimes to convince and pressurize our law makers to decriminalize Section 377. In other words, LGBT social action groups are demanding that if two consenting adults of same sex are involved in homosexual activities, it should not be a criminal offence.

But when their plea was not responded by our legislatures, they went to the Court for appropriate and just solution to their grievances through a Public Interest Litigation (PIL). The said PIL was filed by a NGO namely Naz Foundation in Delhi High Court.In the case Naz Foundation v Govt. of NCT of Delhi (2009 Delhi H C) passing a landmark judgment on 2nd July 2009, Delhi High Court declared Section 377 as illegal as far as it criminalizes same sex sexual activity between two consenting adults done in private. Thus, in effect Delhi High Court, in its historic decision upheld and secured the LGBT people’s right to sexuality.

India, in 21st century is trying to become a super power and the world leader; in fact it has all the potential to become one. But this potential would not be realized until and unless we as a society will not be able to freely accept and discuss so-called taboo issues such as homosexuality.

And for that to happen above all mentality of the people will have to be changed. The first step is sex education in schools and at homes. A child must feel comfortable to discuss his/her problems or issues related to sexual matters and even their sexual choices with their parents or teachers. And it is important that parents/teachers fully appreciate their wards’ situation and guide them accordingly.

Therefore, not only children but grown-ups or adults need more education and sensitization as far as matters related to sex are concerned. Similarly, our media and film fraternity are required to be more considerate while depicting such people in their shows and films respectively. In fact they can play a very important role in imparting knowledge and disseminating true information about LGBT people and their sexual choices so that society could get a real picture of their situation and conditions.

Apart from all these, the most important single step in eliminating the stigma over LGBT people is to decriminalize section 377 of the IPC so that they could have a normal regular life like others and avail their basic human rights without harassment or discrimination. Hopefully our law makers would soon listen to their rightful plea and make necessary changes in the law.The decision of Delhi High Court in Naz Foundation Case was further challenged in appeal at the Supreme Court of India.
The SC in a far reaching judgment quashed the decision of the Delhi High Court and reverted back to the earlier position i. e. once again made homosexual relationship as criminal offence.