In this article, Hunney Mittal addresses the issue of criminalization of homosexuality in India and the need to recognise love in all its forms.
Homosexuality – History and Ancient Scriptures
The term has been derived from the Greek word ‘Homo’ which means ‘same’ and the term Homosexuality was coined by German Psychologists who called it as a ‘mental illness’. Western ancient scriptures like Bible are against homosexuality terming it as unnatural, sinful and abhorrent to God, the punishment for which is death and no salvation. On the other hand, the Hindu scriptures are of a view that all the tastes, preferences and tendencies of a person is not a matter of choice but of the past karmas.
Scriptures like Kamasutra which give vivid details about eroticism, sexual pleasures and its manifestations have shown that homosexuality was widely accepted in the Indian society. Other scriptures like Garud Purana and texts of Manu also have accounts which show that the practice was prevalent. It is such an irony that in a country where transgender people are worshipped as they are considered lucky, at the same time, they are considered to be socially undesirable elements and prohibiting them from manifesting their love which has resulting in gross miscarriage of justice.
Section 377 of Indian Penal Code
The Indian Penal Code, 1860 was drafted when the country was under the British rule and so the laws were derived from them. In those times, since the canon laws were followed and the churches were against homosexuality, it was an offence in England and hence it became so in India when Sec 377 was enacted. However, as per the Indian history is concerned, Section 377 enjoys no historical or logical rationale which renders it arbitrary and unreasonable.
The provision reads as:
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 years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The provision criminalizes everything which is “against the order of nature”. However, what is against the order of nature has not been defined. With various interpretations by different courts, the law that prohibited anal sex has now been extended to oral sex too. This provision thus, criminalizes not only the homosexuals but also heterosexuals who have homosexual tendencies. Also, in the case of Mihir v. State of Orissa (1991), the Orissa HC has held that consent is not an ingredient for inviting Section 377.
People indulging in any sexual act which is ‘unnatural’ will be liable under the provision irrespective of whether it is consensual or not. This was however ruled out in the case of Naz Foundation v. Govt. Of NCT of Delhi (2009), where the Delhi High Court legalized consensual intercourse between two adults as criminalizing the same was considered ultra vires and inconsistent with the fundamental rights guaranteed under Article 14 and Article 15 discriminating on the basis of sexual orientation. This victory was however, short lived as the Supreme Court soon overruled it by stating that only the parliament can change a law and not court which was highly criticized by media, the LGBT community and their supporters.
After being awarded with the title of criminals, homosexuals are subject to constant harassment and have become a hate figure. Many a times, they are blackmailed to extort money lest their identity be revealed. Due to family and social pressure, they are forced to conceal their true self and are forced to marry against their will and have to bear the burden of marriage which also ruins the lives of their spouses. Constant harassment by the police officials is also prevalent.Many have paid the price for following their heart by ending up committing suicide which seems better then to live a dual life. This has also raised questions on the Right to Privacy as per Article 21 as a person’s sexuality is his or her most precious and most private of rights.
The punishment for gay sex in the country is up to 10 years. This places it on the same plank as dowry death and rape cases, which is absurd. Even the eminent people of the society term homosexuality as a mental disease which needs to be cured. However, organizations such ICD-10, WHO and DSM IV which are globally accepted do not consider non-peno-vaginal sex as a mental disorder between consenting adults.
In the case of Maneka Gandhi Vs UOI(25 January, 1978), the Supreme Court held that Right to Life, as per Article 19 doesn’t just mean a right of mere animal existence but with dignity. However, such rights are unheard of in the case of homosexuals as they can’t even be open about their sexuality due to the social stigma. Love in itself is a natural emotion and no law should steal from people their right to love. Giving government the power to intrude into someone’s bedroom is a clear indication to invade a person’s right to privacy as per Article 21 of The Constitution. What a person does in his or her private space is not at all their business.
The law which we derived from the British is so obsolete that even the parliamentarians of UK realized this and amended the same, thus, legalizing gay marriages and becoming the 23rd country to do so. But the position seems to be frozen in India as no measures have been taken to even discuss on the issue. Our parliamentarians literally laugh whenever the bill for legalizing homosexuality comes up in the parliament. If our primitive society accepted homosexuality, why does the present so called modern Indian society still consider it a taboo? A curative petition for the same was filed in the Supreme Court however, of no avail as it has been put aside for future consideration by a larger bench. Masses still hope that love will be recognized in all its forms.
 Leviticus 20:13