This blog examines the discrimination people face based on their sexual preferences. The blog explores the social stigma attached to the unorthodox sexual preference one might have. The blog also tries to explain in detail why the colonial–era law is inconsistent with the requisites of the modern day society and doesn’t cater to its dynamic nature.
image credits :- New Indian Express
India has been an independent country for 73 years now. Since the dawn of independence, India has progressed by leaps and bounds in almost every sector. There exists only a few things which have only one side to it, therefore behind all this hunky- dory facet there are still some areas where India has been lagging behind if compared to the rest of the world, one such area is that of sexual orientation and the discrimination of people who have non conformist sexual preferences. It is one such issue which has been an Achilles heel and has kept troubling the Indian society as well as the bureaucracy for a very long period of time.
• But in the hindsight homosexuality was not always considered a ‘taboo’ and looked down upon by the society. Many literally evidences found over a period of time suggest that homosexuality was an accepted factor of life and it was considered as a form of diversity rather than frowned upon. The ancient text of “Kama sutra” which was written almost 1500 years ago speaks about an entire chapter on erotic homosexual behavior.
• Section 377 of IPC 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 a term which may extend to ten years or with a death penalty, and shall also be liable to fine.
• It was introduced in India by Lord Macaulay in 1860.
• The enforcement of Section 377 was very rare but it was a serious threat to the homosexual community in India as it made them very vulnerable to violence and human rights violations which contribute to their economic exclusion and stigma.
IMPACT OF DISCRIMINATION:
1. Dropping out of school
2. Being ignored in the community resulting in isolation
3. Lack of family and social support
4. Difficulty in earning livelihood
5. Rejected from the religion
Psychological evaluation done on homosexuals have not shown any objective impairment in them neither does it show lack of judgment, stability or vocational abilities. In 2014 Indian Psychiatric Society acknowledged that homosexuality is neither a mental illness nor a disease. Even the World Health Organization and American Psychiatric Association have also declared that homosexuality is not a disorder. But multiple studies done by the above mentioned organizations have shown that homosexuals per se don’t have any psychological problem due to their sexual preferences but the reason behind their real psychological problems is the way they are treated by the society resulting in depression, anxiety, suicidal tendencies, psychiatric disorders to name a few which eventually leads to elevated rates of poverty, and joblessness compared to general population. When we look at it from the Indian context the situation appears to be more bleak because even today when a typical Indian family consults the psychologist, the doctor’s first attempt is to medically treat the concerned human in such a way as to repress his sexual urges, this is done normally due to the insistence of the family members who are not ready to accept it or due to the lack of expertise of the doctor.
• There are many cases of discrimination against common people just because of their sexual preferences which we don’t know about but there is one such iconic case of a really famous personality who was discriminated due to his sexual preference to such a level that he preferred suicide over his life. The case is as follows;
Alan Turing was a genius mathematician, cryptanalyst and is considered to be the father of theoretical computer science and artificial intelligence. During WWII, he worked at Bletchley Park in UK which was the headquarters of Britain’s code breaking organization. He was able to develop a machine which was able to break the “Enigma” considered to be indecipherable. Due to his unprecedented achievement he was able to decipher the German messages which proved very vital in turning the tide of the war. The only downside to his otherwise fairytale story was that he was a homosexual and during that that time homosexuality was considered a crime in Britain. He was put on chemical castration rendering him impotent. He committed suicide on 7th June 1954 at the age of 41.
The greatest service a human can provide is for one’s own motherland, here was a man an exceptional genius who almost single handedly played a huge role in saving the world from tyranny and chaos but was subjected to imprisonment, discrimination and utter humiliation from the society resulting in him committing suicide due to the ludicrous law of criminalizing ‘Homosexual Acts’.
LEGAL SHORTCOMING (SEC.377)
Article 14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. ARTICLE 15; The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Section 377 of IPC was of such nature that it was against the very basic principles established by the Constitution of India. Due to the arbitrary nature of Sec.377 it was in clear violation of Article 14 and 15 of the constitution which guarantees equality before law, prohibition of discrimination on grounds of religion, race, caste, sex, and place of birth or any of them. Sec 377 was also against the basic law of right to privacy and that of sexual orientation as they form a very essential part of the fundamental rights provided by the Indian Constitution.
• 2001- Naz Foundation files a Public Interest Litigation (PIL) challenging the validity of Sec 377.
• 2009- Delhi High Court decriminalizes Sec 377 by holding the provision illegal and in the violation of basic fundamental rights.
• 2013 - The Supreme Court quashed the decision made by the Delhi High Court, it was said that the validity/invalidity of Sec 377 should be left to the parliament rather than the judiciary.
• 2016 - In the final hearing for the curative petition it was held by the 3 judge bench that all the curative petitions will be submitted and reviewed afresh by a larger bench of 5 judges.
• 2017 - In a landmark judgment for individual freedom, a nine judge bench unanimously declares that privacy is a fundamental right and an integral part of right to life and personal liberty which is guaranteed by the constitution, which also covers right to sexual preferences.
• 2018 - A three member SC bench hears a plea asking it to revisit the Naz judgment. Suresh Kumar Koushal v. Naz Foundation case is referred to the larger bench and Centre’s help is sought.
• 2018 -Supreme court rules that consensual gay sex is not illegal and therefore Sec 377 is finally decriminalized.
Even though the Supreme Court has decriminalized Sec.377 and has made homosexual relations legal there is still a huge barrier when it comes to it’s application in real world, practical application of such a law is going to take a while, but even now homosexuals are still being openly discriminated by their family and the society and is still being considered a “taboo”. Even though people have started to accept homosexuality at some level in many cities of India, as a whole country we are still light years behind the rest of the world where homosexuals are treated like any other people. India has taken very long for recognizing the fundamental rights of the homosexuals who are the citizens of this country like any other heterosexual man/woman of this country and when it is clearly mentioned in the constitution that there shall be no discrimination on the basis of sex and equal opportunities shall be provided to each and every citizen of the country, then the colonial era law of criminalizing homosexual acts was in clear contradiction and violation of the basic fundamental rights provided by the constitution.
It is high time now that we consider homosexuals as just a diversity residing in the society and still being an integral part of our society who is entitled to every fundamental right provided by the constitution. Now that the homosexuality is recognized in India the government should take active steps to bridge the gap between them and the mainstream society. This could be done by making the masses aware about various facets of homosexuality and encouraging them so that the community could be accepted by the nation as a whole. When the society will start accepting homosexuals then only the family won’t look at its member who is a homosexual with shame and will thus encourage him/ her in accepting his sexuality. Therefore with help of the active
measures taken by the government and a progressive mindset of the society we all can help the homosexuals lead a dignified and respectable life which is entitled to each and every citizen of our country.
(5) The Indian Penal Code, 1860
(6) The Constitution of India, ( Dr. B.R. Ambedkar)
Author :- Rohan Bhishikar,
Dr. Babasaheb Ambedkar College of Law, Main Branch,Nagpur.