HOMOSEXUALITY
AND LGBT RIGHTS IN INDIA

 

Ø Introduction

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§  In
this present era many type of new things are emerging because change is the law
of nature and change is also the demand of time so emergence of new challenges
and events are necessary for the development of society.

 

§  As
we know that LGBT (Lesbian, Gay, Bisexual and Transgender) peoples are under
conflict regarding their legal rights because in India there is a poor mindset
involved in minds of Indians in respect of LGBT peoples so first of there is a
thing that is humanity and they have right to treat like other humans.

 

§  In
this present era where constitution is supreme and equality before law exist;
it is necessary to provide them equal status as like other peoples of India.

 

§  In
our judiciary various steps are also taken and some steps are in process which
is made for the protection and promotion of the rights of LGBT peoples in the
society.

 

§  LGBT
peoples facing various type of critical situations in society which bars their
life of living and according to Maneka Gandhi v/s Union of India , court
held that right to life guaranteed under Article 21 of Indian Constitution,
does not mean mere only right to breath, right to life includes right to
prestigious life.

 

§  LGBT
peoples
face many problems in various fields such as employment, education, behaviour
from society, standard of living, etc so all these things make their dignity in
danger which is the violation of Article 21 of Indian Constitution.

 

§  In
the step of development of our country it is necessary to develop each and every
citizen of country so non development of LGBT peoples will affect the development
of whole country so if we want to make our country developed then we have to
provide all equal rights as like others to theses peoples.

 

Definition

§  The
word homosexuals literally means as ‘of the same sex.

§  The
Greek term homo meaning ‘same’ and Latin root meaning ‘sex’.

§  Homosexuality
is a sexual orientation characterized by sexual attraction or romantic love
exclusively for people who are identified as being of the same sex.

§  People
who are homosexual, particularly males are known as ‘gay’, gay females are
known as ‘lesbians’.

§  That
is homosexual marriages, sometimes referred to as gay marriage, indicates a
marriage between two persons of the same sex.

 

 

History

§ 
If we read our history then it
can be concluded that homosexual relationship come from Ancient Greece, where same
sex relationship were the societal norm.

§ 
According to Researchers suggest
that the Catholic Church, which has been extremely vociferous in its opposition
to homosexuality in general, approved of same-sex marriages for over 1 500
years, only ceasing to perform them in the nineteenth century.

§ 
In preindustrial societies also
homosexuality was generally accepted by the lower classes while some members of
upper classes considered it immoral

§ 
The sexual orientation in pre
modern era as depicted in love poetry and paintings and even in historic
figures such as Alexander the great, Plato, Hadrian, Virgil, Leonardo da Vinci,
Michelangelo and Christopher Marlowe included or were centered upon
relationship with people of their own gender.

§ 
Homosexual marriages are also
known as gender-neutral marriage, equal marriage, and gay marriageHowever the
term homosexuality appears in print for the first time in 1869 in an anonymous
German

§ 
Thus homosexuality is not a new
phenomenon. Even instances of homosexuality are available in Hindu Mythology.

§ 
The literature drawn from Hindu,
Buddhist, Muslim, and modern fiction also testifies the presence of same-sex
love in various forms. Ancient texts such as the Manu Smriti, Arthashastra,
Kamasutra, Upanishads and Puranas refer to homosexuality.9 Also there are
reports that same-sex activities are common among sannyasins, who cannot marry.
Thus instances of homosexuality are available in historical and mythological
texts world over and India is not an exception to this.

§ 
The Cultural residues of
homosexuality can be seen even today in a small village Angaar in Gujarat whereamongst
the Kutchi community a ritualistic transgender marriage is performed during the
time of Holi festival. This wedding which is being celebrated every year, for
the past 150 years is unusual because Ishaak, the bridegroom and Ishakali the
bride are both men.10

§ 
Thus the history is filled with
evidences proving the existence of homosexuality in past. Whereas in thepast 10
years world over, for the lesbian and gay rights, we find that the legal
initiatives have shifted from the right to be privately sexual, that is the
right to have same-sex relationships at all, to the right to beindividual civic
subjects, protected from discrimination in the work place and in the provision
of services,toward the right to have relationships given status by the law.

§ 
This shift in rights-focus, fromdecriminalization,
to civil protection, to civil recognition is, not entirely a linear one. Thus
in recent yearsa number of jurisdictions had relaxed or eliminated laws curbing
homosexual behavior.

 

 

 

 

 

 

Legal Status of Homosexuals in
India

§  Section
377
30 of the Indian Penal Code (1860) relates to Unnatural Offences and includes
homosexuality within its domain.

§  In
India this Law relating to homosexuality was adopted from the British penal
code dating to 19th century. Section 377 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.”

§  Section
292
of IPC refers to obscenity and there is ample scope to include homosexuality
under this section.

§  Section
294
of Indian Penal Code, which penalizes any kind of “obscene behaviour in
public”, is also used against gay men.

§  Sexual
Offenders Act 1967    in England the offence of homosexuality
between consenting partners has been abolished by the Sexual Offenders Act 1967
(that is in the country of origin of this law) whereas in India, the consent is
quiet immaterial for constituting an offence as defined under this section.

§  Thus
in India it is primarily section 377 which explains and defines unnatural
offences.32 It is this section which makes Homosexuality illegal with life
imprisonment or with imprisonment for ten years with fine.

§  Under
this clause, a third party can sue the partners who voluntarily entered into
sodomy thereby infringing on the right to personal liberty and privacy as
enshrined in the Fundamental Rights of the Constitution.

 

§  Dipika
Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and
Transgender People in Delhi:An Empirical Investigation, 2 Centre for Health
Law, Ethics and Technology, Jindal Global Law School

§  Nirnimish
Kumar, Delhi High Court strikes down Section 377 of IPC, The Hindu
(03/07/2009), available at
http://www.hindu.com/2009/07/03/stories/2009070358010100.htm , last seen on
12/5/2014

§  Suresh
Kumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.

§  Govindarajalu
In re, (1886) 1 Weir 382.

§  Khanu
v. Emperor, AIR 1925 (Sind).

§  Losana
Vasantlal Devchand v. State, AIR 1963 Guj 252.

§  State
of Kerala v. Kudumkara, (1969) CriLJ 818.

§   Calvin Francis v. Orissa, (1992) 2 Crimes 455.

§   Fazal Rab Choudhary v. State of Bihar, (1982)
3 SCC  9.

§  Suresh
Kumar Koushal v. Naz Foundation and Ors, AIR 2014 SC 563.

§  Supreme
Court says gay sex illegal , govt hints at legislative route, Hindustan Times
(11/12/2013)

§  Jayalakshmi
v. State of Tamil Nadu (2007) 4 MLJ 849.

§  Ss.
299-377, The Indian Penal Code, 1960.

§  S
Krishnan and Ors. v. The State of Madras, AIR 1951 SC 301.

§  Murali
Krishnan, In Conversation with  V Giri,
Bar and Bench (18/12/2013)

§  S.
377, The Indian Penal Code, 1960.

§  Art.
21, the Constitution of India.

Cases and Sentence

§  In
the history of the statute from, 1860 to 1992 there were only 30 cases in the
High Courts and Supreme

§  Court.
Out of these 30 cases, 18 were non-consensual, 4 were consensual of which 3
were before 1940 and 8 were unspecified and 15 out of 30 cases registered were
assault on minors.

§  In
a judgement Fazal Rab Vs State of Bihar, the Supreme Court was dealing with a
case where a man had homosexual relations with a boy with the consent of the
boy.

§  The
Supreme Court in 1983 observed that: ‘the offence is one under Sec. 377, IPC
which implies sexual perversity. Considering the consent of the boy, the
Supreme Court reduced the sentence from 3 years rigorous imprisonment to six
months rigorous imprisonment.

§  Also
Section 377 had been used to intimidate women, particularly in the case of
women who have run away together or if they make their relationship-known.

§  In
1987, Tarulata/Tarun Kumar underwent female to male sex change operation and
married Lila in 1989. Lila’s father filed a petition in the Gujarat High Court
saying that it is a lesbian relationship and that the marriage be annulled. The
petition contends that ‘Tarun Kumar possesses neither the male organ nor any
natural mechanism of cohabitation, sexual intercourse and procreation of
children Adoption of any unnatural mechanisms does not create manhood and as
such Tarun Kumar is not a male. The petition called for criminal action under
Sec. 377.

§  The
legal status of homosexuality in the Indian Armed Forces follows the model set
by Sec. 377 of IPC.

§  Sec.
46 of chapter VI – offences of the Army Act, 1950 states: any person subject to
this Act who is guilty of any disgraceful conduct of a crude, indecent or
unnatural kind shall on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to seven years or much less
punishments as is this Act mentioned. Similar provisions exists in the Air
force Act and Navy Act.

 

§  Explanation-
Penetration is sufficient to constitute the carnal intercourse necessary to the
offences described in this section. Essentail Ingredients i. That there must be
voluntarily carnal intercourse against the order of the nature. ii. That it may
be with man, woman or animal. Classification of offence Punishment –
Imprisonment for life or imprisonment for 10 years and fine – cognizable – Non
Bailable – Triable by Magistrate of first class – Non-Compundable.

§  In
1992, 18 men were arrested from a park in New Delhi on the suspicion that they
were homosexuals.

§  After
protest and demonstration by gays, lesbians and human rights groups, they were
released from police custody after filing a petty case against them. In fact
they were not indicated under Sec. 377 but under the provision of public nuisance
under the Delhi Police Act.

§  Similarly
in 2001, the Delhi High Court admitted a petition challenging the
constitutional validity of the article on the ground that it “criminalizes
homosexual acts” even between two consenting adults and impedes AIDS
control efforts among homosexuals

§  Delhi’s
Tihar Jail, on the grounds that Section 377 makes homosexuality illegal.

§  A
human rights activist.group ABVA filed a Public Interest Litigation in the
Delhi High Court. The petition challenged the constitutional validity of Sec.
377 of IPC and advocates supply of condoms to jail inmates, with a plea to
restrain the authorities from segregating or isolating prisoners with
homosexual orientations or those suffering from HIV/AIDS.

§  The
petition urges that Sec. 377 is obsolete and must be struck down as being
unconstitutional on the grounds that Right for Privacy is part and parcel of the
Fundamental Rights of life and liberty under Article 21 of the constitution and
recognised by the 1948 International Convention on Human Rights. Sec. 377 is a
violation of Article 14 of the constitution since it discriminates persons on
the basis of their sexual orientation; having been enacted in 1860, Sec. 377 is
archaic, absurd and implemented by the British in all its colonies, including
India, but now been repealed in England, the country of origin.

§  48
Section 292 to 294 of Indian Penal Code enumerates obscenity. Subsection (1) to
section 292 of the code defines obscene publication and rest of the part of
section 292 and Section 293 of the code, Prohibits the sale and distribution of
obscene Publications and Sec 294 of the code prohibits obscene acts and songs.

§  two
months’ imprisonment. In yet another case the Supreme Court reduced the
sentence of the accused to six months imprisonment as the accused while
committing sodomy did not use force on the boy.

§  In
a case of Himachal Pradesh where a truck driver twice committed sodomy on a boy
in his truck, a sentence of one year’s imprisonment and a fine of Rs. 500.00
were imposed on the accused.

§  All
these instances indicates that the actual sentence imposed under this section
is not usually heavy.

Activists Movement

§  Gay
rights activists have been battling against Section 377 for a decade. In 1994,
lesbian and gay groups filed a petition challenging the law in the Delhi High
Court. The case has dragged on for five years and has evoked strong
reactions.52 In 1996 even members of the Indian lesbian collective Stree Sangam
made a presentation on domestic-partnership laws to a government conference on
marriage and family law.

§  It
was “perhaps the first time that a lesbian/gay group attempted to create
public opinion on the issues in such a forum,” the group said in a letter
to the gay magazine Trikone.”

§  In
Feb 99 there was second national LGBTconference Indian National Gay Conference
YAARIAN -99.

§  Similarly
the attacks on the film ‘Fire’ and ‘Girlfriend’ have led a number of
organizations to set up the campaign for Lesbian Rights. The petition, filed by
the voluntary organization, argued that it is wrong for homosexuality to be a
punishable offence in 21st century India.

§  However
the most recent legal challenge comes from the Naaz Foundation Trust, New
Delhi.58 Naaz India has filed a writ petition challenging Section 377 in the
Delhi High Court on December 7th, 2001 on.

§  Section
377 violates the right to life and personal liberty, the right to equality and
the right to freedom guaranteed to all citizens as Fundamental Rights under Chapter
III of our Constitution.

Similarly other gay and lesbian groups
like Hamsafar of Mumbai, Sahayathrika of kerela, etc. are also raising gay
issues in the mainstream.

Mainstream Reaction

§  Indian
society is a traditional multicultural diversified integrated society where in
Hindus dominate. And for Hindus marriage is an enduring heterosexual Sacrament.

 

§  Other
Indian communities also have similaropinion that marriage is a heterosexual institution.
This is supported by Vishwa Hindu Parishad Party, whose president says for
Hindus, this kind of behavior is not just against nature, it is against our
culture.

 

§  Even
Shiv Sena members attacked theaters in New Delhi and Bombay where the film
fire’ (1988) and ‘Girlfriend’ (2004) was being screened they tore down posters,
smashed furniture and organized violent protests.

 

§  the
last five years, the Indian gay community has moved into and flourished on what
has probably been the most accepting space they could have ever hoped to find-
the Internet. Thus they are forming NGOs, calling up help-lines and meeting
regularly to evolve strategies for their cause.

 

§  Above
all, Although the high court in Delhi has dismissed the legal petition that sought
to legalise homosexuality. The court ruled that the “validity of a
law” cannot be challenged by anyone who is “not affected by it”.

 

§  this
feeling of isolation is often accompanied by self-loathing and confusion as to
their future this is so because Section 377 which is used to criminalise and
prosecute homosexuals in actual legitimizes the abuse of homosexuals. Infact
“Gays are beaten up and even raped under the cloak of this law,” says gay rights
activist Rakesh Shaleen of Naaz Foundation. Rakesh also refers to a case that
”Two years ago, gays were forced into medication to ‘cure’ them.

 

§  This
mistreatment included shock and aversion therapy. When we petitioned the NHRC,
the case was rejected in the light of Section 377.”

 

§  Thus
Gay right activists and homosexuals has now started demanding social and legal
recognition of

homosexuality
because they have a firm opinion that Legal protection is probably the only way
by which homosexual community can be guaranteed social rights, rights against
exploitation and more importantly, health rights.