India has a long tradition of tolerance for all kinds of beliefs, faiths, philosophies, orientations and ways of living. Though India is a deeply religious country but at the same time it is also a country which has accepted non- religious communities as well. In ancient India there was a place for all kinds of diverse cultures, arts and literatures; the society was very assimilative. At one place we have purely and strictly religious painting and sculptors like at Konark or at Jagganath Puri temples and at another place we have monuments like Khajuraho which is famous world over for its erotic arts and sculptors; this also includes sculptors with homosexual activities. This shows that not only all types of sexual orientations were there in ancient past but people were so tolerant and broad minded that paintings and sculptors depicting the same sex love-making were being freely created and displayed.
But our modern society somehow has become less tolerant towards anything which is not regular or common according to their collective perception; whether we study society’s behavior towards religious minorities such as Islam or Christianity or its behavior towards sexual minorities such as gays, lesbians or bisexuals. In all such cases, it can be found that people in minority are the target of the people in majority and harassment or discrimination against such minorities is widely prevalent.
Thus unlike ancient India, people with different sexual choices i. e. homosexuals are not treated equally in today’s society and their basic human rights are violated frequently.
Like food, shelter and water, sexual need is also one of the basic human needs without which life cannot be fully realized or enjoyed. Sexual orientations may differ from person to person. Though persons with non- regular sexual behavior are in minority but they are a reality. Non-regular sexual behavior may be understood as sexual preference and attraction not with opposite sex but with same sex persons.
What is Homosexuality?
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.
Causes of Homosexuality
The reasons for such type of sexual behavior or choice are not yet fully known but several researches have been done and different experts have found different results or theories. The reasons may be biological, psychological or both.
Several scientists have concluded that one is born with a particular kind of sexual orientation and it is in the genes. Thus it is a natural phenomenon. But no conclusive proof is there that homosexual behavior is simply a biological thing. There may be a factor of genetics in determining one’s sexual choice but other factors might also be there.
Social and Psychological Factors
It is a fact that socio-cultural environment affects the development of a child in significant ways. One’s family, friends, society, and experiences decides how one views life, how one feels and how he or she acts. Thus psychological factors are also very important in determining one’s sexual preferences.
But it is true that not one single factor but combination of many things determines one’s sexual orientation. And whatever be the reason as it is natural for a person to decide what kind of food he/she wants to eat, what kind of living he/she wishes to have; similarly, it is also natural that with whom he/she wants to have sexual relationship either with opposite sex or with same sex.
Discrimination Against Homosexuals
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 behaviors 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. We specially avoid facing so-called taboo social issues such as pre-marital sexual relationship, live-in relationship, inter-caste or inter-religion marriages etc. Homosexuality is also one of the most avoided or detested issues in our society. Even the mentioning of the terms Gays or Lesbians is a strict no-no. Thus, the society as whole has not accepted persons with different or so-called unnatural sexual behavior.
The discrimination against LGBT community persons is fairly common. And it begins from their own homes; their own family members treat it as a disease or perversion and accordingly treat them badly. In fact family members feel ashamed of in the society if any member of their family has such sexual orientation.
Outside of home, they experience all the more severe and hateful behavior of people, be it at work place, school, and colleges or at any other public place. Everywhere they become a target of obnoxious comments and sexually colored jokes. The problem is due to their appearances and way of walking or talking they are easily recognizable and become victim of such derogatory remarks etc. In our day to day life we pass jokes and messages ridiculing and making fun of LGBT people; even in our movies these people are presented in a very objectionable way just to invoke some kind of laughter among the audiences.
So overall general perception of the society is against such individuals and we are not ready to accept them as one among ourselves.
Laws in India and Homosexuality
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 IPC and Rights of LGBT community:
One of the major lacuna or contentious legal provision in our laws is Section 377 of the Indian Penal Code, 1860.
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.
The SC and LGBT Rights
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. The decision came as a shock to the LGBT community and also to the liberal members of the society. The reasoning of the SC was that the Indian society is not yet fully mature to accept same sex relationships and if necessary changes are needed to decriminalize Section 377 of the IPC, it must be done by the Parliament and not by the SC.
Several legal and constitutional experts have criticized the decision as regressive and disappointing. Experts are of the view that the SC could have upheld the decision of Delhi High Court or could have advised the Parliament to make necessary changes in the IPC; but unfortunately the SC fell short of in fulfilling such expectations and securing basic human rights of sexual minorities.
Therefore as per the present scenario, LGBT community people are again feeling themselves insecure and discriminated against. If the SC had given an authoritative judgment on the issue, the matter would have been settled for all times. And it was also expected of the highest Court of the country that it would recognize the rights of LGBT people and would decriminalize the same sex relationship. But as many experts are pointing out, the SC has missed a historic opportunity to provide equal constitutional and human rights to LGBT people.
Now again the ball is in the hands of our law makers to amend the law and decriminalize the same sex relationship among consenting adults done in private sphere. Because now the only hope for LGBT people is country’s Parliament.
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.
Law enforcement agencies such as police also need sensitization so that they will be able to appreciate the genuine concerns of LGBT people.
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.