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Written by: Tulika Srivastava
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People who refuse to fit every expression of their sexuality under one homogeneous umbrella to satisfy society. People who reaffirm their rejection of a singular identity. People who are beaten, harassed and jailed simply because of their sexual orientation. They dare to dream for an identity for being able to marry and live with those they love…for society to realize that good parenting has nothing to do with sexual orientation for the workplace to be free of bias and discrimination. Yet, all these dreams have been stifled.
This is the world of gays, lesbians and bisexuals - sexual minorities which have given India, and the world, some of its most creative people.
There are many celebrities and successful people like Elton John, Tom Cruise & George Michael, who have managed to overcome the fact that they are homosexuals and given their best to the world, proving once again, that creativity and living life to the fullest has got nothing to do with your sexual orientation.

What Is Homosexuality?

Homosexuals are as normal as ‘you’ and ‘me’. Yet, just because they love ‘their own kind’, they are ostracized and hounded by the law. And branded as ‘queers’ and ‘aberrations’ - precisely what they are not./

Homosexuals are normal humans attracted to their own gender. Homosexuality (rarely Homophilia) is a sexual orientation or orientations characterized by romantic or sexual desire for, or sexual attraction towards member of the same sex. The term usually implies an exclusive or predominant sexual orientation toward persons of the same sex and is distinguished from bisexuality as well as heterosexuality. In addition to referring to a sexual orientation, the term homosexuality is also used for sexual behavior between people of the same sex.

In women, romantic or sexual desire for other women is also called ‘lesbianism’. The term ‘gay’ is used to refer to homosexual persons of either gender, although it is mostly used to refer to males. Persons with the sexual orientation of homosexuality are sometimes called homosexuals. Many people regard the term ‘homosexual’ as derogatory or clinical because of its cold, antiseptic connotation, particularly when applied to a person, and most people who regard themselves as having a homosexual orientation prefer the term gay, lesbian, or, less frequently, queer or same-gender loving.

Like heterosexuality, homosexuality is an orientation, which is not unnatural. Society is changing and accepts this orientation - what is not changing is the legal mindset in India.

Irrelevance of Section 377, Ipc In The Modern Context-

Section 377 of the Indian Penal Code, was enacted by the British in 1860. Ironically, while the British drafted this section while replacing a tolerant Indian attitude towards sexuality with an oppressive one, this law was repealed in United Kingdom in 1967. this section criminalizes what it calls, ‘sexual offences against the order of nature’. It does not in any place define what constitutes the order of nature, but the judicial pronouncements that have come over the past one and half century has extended the application of this section to all forms of sexual expressions that is possible between two male persons. Every time the law or the authorities have come across instances of lesbianism, there has been a thus far unsuccessful attempt to apply this law to them as well. Homosexuality in India stands criminalized because of a mid 19th century colonial law.

Section 377 of the IPC, framed in 1860, states:

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 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.

Very few cases on this law have actually reached the upper courts level in all this time, but the law continues to be a potent tool of oppression. It provides the impunity to a venal police to extort money, blackmail, indulge in violence, and extract other favors, including sexual favors, by dangling this law on homosexual males and females, a traditional social group of transvestites and transsexual persons. It impedes sexual health promotion activities like HIV/AIDS Interventions amongst same sex attracted males. It discourages reporting of male rape, and therefore encourages such rape, often by police. In sum, it disrupts the social existence of all same sex attracted persons, erodes their dignity and self respect, and reduces them to a sub-human level of existence.

A leading NGO of our country had brought an action in the Delhi High Court challenging the constitutionality of this law. The government dithered for two years before it filed its response. It did so only after immense pressure from civil society organizations and the passing of several strictures by the court. While its dithering is understandable as a tactic to loose another problematic litigation in the jungle of half a million or so cases clogging the Indian judiciary, the substance of its reply brings to light the culture straitjacket.

In brief, three things can be said about the government’s stance in such cases of Homosexuality:

[a] the state has not just a function to, but actually a duty to stop ‘unnatural sex’, or else the social order would break down, law loose its legitimacy et al;

[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and

[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

So why is that problematic? Of course we know that the Government does not have any locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what is natural or unnatural sexual behavior. Its problematic because the repeated insistence of the culture argument has the risk of putting in jeopardy the gains that the women’s rights movement, or the movement for the upliftment of the dalits and other oppressed castes, the civil rights movement, the social gains that has been made over years of struggle in the seeking of a multicultural tolerant society, the gains in the stride for secularism etc. All of these movements have been conducted in opposition to some or the other prevailing majoritarian belief system and we stand to loose all of those gains. And it is a price that I personally do not think is worth paying.

It also stands the risk of actually pushing the Indian polity and the Indian society into a increasingly fascist mode, where there is only one belief that is accepted and culturally acceptable, therefore legally sanctioned, and anything that goes against it has to be suppressed, criminalized, and obliterated. All justified in the name of culture. It would ring in the breakdown of our cherished pluralistic and tolerant society.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments, then many of the progressive legislations in my country would never have been enacted. For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.

My reading is that when the government says that it needs to retain section 377 because it is also used against cases of child abuse and is therefore necessary, it only shows how bankruptcy they are. In spite of repeated struggles and demands by women's organizations and child rights organization, not to speak of GLBT organizations that are increasingly raising the same demand, India remains one of the few countries that does not have a comprehensive law against child sexual abuse till date, or a law against male rape. One fails to understand what prevents the Government from enacting such a law, when it has internationally made the commitment to enact such legislation long ago.

Why Is Homosexuality Considered A Crime?

Is homosexuality an import from the west? Well the only thing that was imported was section 377 of IPC, which was brought in and gifted to us by the British. The British must have found homosexuality prevalent enough and with enough freedom and social sanction to have their Victorian morals shaken, and would therefore have wanted to put a stop to such ‘vile native’ practices by legislating appropriate laws. It is not homosexuality that is a western import, it is criminalization.

Despite changes in the societal mindset, gays in India are easy targets for criminalisation all because the law does not grant same-sex relations sanctity that is their due. Forget marriage, adoption rights are a distant dream for homosexuals in India. Here, adoption by homosexuals is disallowed the instant sexual orientation is revealed. Trust me, any lesbian or gay parent who has stayed up all night to soothe a sick child knows that parenting comes from a place far more basic than sexual orientation: it comes from the heart.

If we go back and figure out where this view came in from, we would see that many moralists and religious groups viewed homosexuality to be sin, though it has been argued that there are several periods in European history when homosexuality was tolerated or celebrated as with heterosexuality.

Primarily due to religious edicts against homosexuality, homosexuality (and specifically anal sex) have been considered a crime in many cultures, in spite of its status as a consensual act.

Medically speaking, evidence points to homosexuality being a function of biology. A study was conducted in 1994, wherein 40 pairs of homosexual brothers were studied. The study reported that 33 pairs shared a set of five genetic markers. It concluded that genetics played some role in a minority of gays.
A recent study conducted by the UNFPA in rural India has found that male-to-male sex is not uncommon. In fact, a higher percentage of men reported male-to-male sex than sex with sex-workers. Close to 10% of unmarried men and 3% of married men reported sex with other men in the past 12 months.

Legislation Worldwide-

Today, homosexuality is recognized across the globe, with the Netherlands being the first country to permit marriage for gay and lesbian couples. While the UK has passed legislation recognizing gay relationships, 37 stated across the US have blocked anti-sodomy laws.

Events such as Mardi Gras in Sydney, Midsumma in Melbourne, Gay and Lesbian Pride in Johannesburg, Women’s Celebration Week in Greece, and the Gay and the Lesbian Film Festival in Lisbon express the essence of being homosexual.

Positive developments at international level:

In 1986 Denmark equated homosexual couples with married ones concerning the right of succession.
In 1989 the Irish Parliament adopted a "Prohibition to Incitement to Hatred Act" covering hate speech against homosexuals.
In May 1989 the Danish Parliament enacted a "law on the registered partnership" of homosexual couples. It stipulates equal rights with one exception: same-sex couples are not allowed to adopt children together.
In 1991 the total ban on homosexual relations was abolished in the Ukraine.
In 1992 a number of Dutch local authorities started accepting the official registration of same-sex partnerships. In October 1993 a bill was introduced in parliament equalizing legal protection for "registered partners" vis-vis married couples.
In 1990 and 1992 respectively, Estonia and Latvia abolished laws penalizing homosexuality.
In June 1992 the German "Land" Brandenburg enacted a new Constitution emphasizing recognition of non-marriage partnerships by the state. In 1993 the "Land" Berlin included sexual identity as a non-discrimination criteria in its Constitution.
In Germany same-sex couples who were denied the right to marry have appealed at the Supreme Courts. Judges interpret the right to marry as an exclusive right for heterosexuals (while family law does not specify gender). In its decision of October 4, 1993 the Constitutional Court upheld this view and ruled the appeal inadmissible, while emphasizing the task for the legislative power to bring about legal protection for same-sex partnerships.
In 1992 the total ban on homosexuality was abolished in Gibraltar and the Isle of Man (both under UK Home Office jurisdiction).
In spring 1993, the Norwegian parliament adopted the same-sex partnership law based on the Danish one.
France, Ireland and The Netherlands have provisions against discrimination of gays and lesbians at the workplace.
In April 1993 the Russian Parliament enacted a new Penal Code which no longer includes the prohibition of homosexuality.
Lithuania which became member of the CoE in May 1993 repealed the ban on homosexuality one month after its admission.
In June 1993, the Irish parliament abolished the law prohibiting male homosexuality and simultaneously, set an equal age of consent at 17.
In autumn 1993 the French government adopted a law directing insurance companies to accept joint insurance coverage for non-married couples.
In October 1993, the "Unfair Dismissal Act" in Ireland was extended to include the prohibition of discriminating treatment on grounds of sexual orientation.
In November 1993 the parliament of the German free state Thuringia adopted a new Constitution prohibiting discrimination on grounds of sexual orientation - pending public approval by a referendum in late 1994.
The Irish Parliament is planning to establish an Equality Commission to monitor all forms of discrimination against homosexuals.
In June 1994, the Swedish parliament adopted a partnership law based on the Danish and Norwegian model.
In August 1994, the total ban on homosexual relations was repealed in Serbia (incl. Kosovo).
In January 1995 homosexuality was decriminalized in Albania.
A bill was introduced in the Cyprus parliament in January 1995 to abolish the ban on homosexuality.
On 15 June 1995 the parliament of Moldova abolished the ban on homosexuality.

Gays. Lesbians. Bisexuals. Tans-gender individuals. No right to marry, adopt children or even protest against discrimination at the work place…in fact, no right to be recognized as normal human beings free to live life as billions of other do. All because of sexual orientation. That is a fearful scepter indeed for a country where more than 10% of the population is comprised by GLBT’s. Should we continue to allow this inhuman reality? That is the question.

I end with a quote carried in an article printed in the Asian Age Dated 3 October 2003: There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have themselves changed.

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