Homosexual Rights and the Law; Litigating India’s Anti-Sodomy Law

Homosexuality is not a disease they are as normal as us but just because they love the same gender they are outlawed by the society.  Modern cultures believe that homosexuality is primarily a modern phenomenon but it is a wrong notion. Many people agree to the fact that homosexual activity and same-sex love relationship existed in ancient times too which can be seen in the sculptures of the buildings and temples of many countries.  Before 19th century there was very little formal study done on homosexuality but European doctors and scientists brought up the efforts to understand the range of human sexual behaviour.  Most men in ancient Greece and Rome used to engage in homosexual act occasionally.  In many literature we can find that homosexual relationships were stated and it was accepted and was not considered immoral or sinful but was a normal part of life.  In many African tribes homosexual behaviours are common before marriage and it is not even considered as sex, because it does not lead to procreative potential.  In Hitler’s time homosexual people were sent to concentration camps and left there to die.  Thousands of years of human history shows us the clear picture that homosexuality was real even during the period of colonialism.  These homosexuals are the main targets of medical, legal, political and social involvements.

In US largest homosexual culture can be found in New York, Los Angeles, and San Francisco cities.  Mattachine Society which was founded in Los Angeles in 1950 was the first known homosexual political organisation in US.  Mattachine Society came to limelight and got much support when Dale Jennings who was one of its founders was arrested on lewd behaviour.  In this case Jennings pleaded innocent to these charges and thus drew attention of authorities to distinguish between homosexual and guilty of illegal activity.  Homosexuals faced a lot of discrimination in employment field along with physical assaults in US.  Even to this day this kind of discrimination where homosexuals are bashed up by public officials happen in almost all the countries.  In Bowers v. Hardwick (1986) US Supreme Court held that Hardwick’s consensual sexual behaviour could be punished for sodomy although it happened in private.

Third genders are ill-treated in India it is even before the legal rights were codified. These homosexuals usually live in poverty and the work in prostitution as no one gives them work or employ them for any kind of job. Even then they are part of Indian society since ages. They are given importance during some ceremonies like marriages, birth of a child, and other auspicious functions where they are considered good luck.

US Supreme Court recently had allowed same sex marriage in Washington DC.  Opponents of gay marriage wanted to put a hold on it and so they appealed against such an order but Justice John Roberts of Supreme Court of US rejected their request and it was ordered on 3 March 2010.  Another important judgment of US Supreme Court was in Lawrence v. Texas (539 U.S. 558 (2003)) which can also guide our Supreme Court relating to these issues.  In this case Justice Kennedy held that person’s liberty is protected from undeserved governmental interruption in their private residences, where state should not interfere, as the freedom includes freedom of thought, belief, expression and also intimate conduct.

Right to life and personal liberty includes the expressions of sexual behaviour of individuals.  If we consider Section 377 of IPC homosexuals are of less value compared with other people which infringes the right to live with human dignity.  This section also puts up impediments on freedom of speech and expression. Since they are in existence since time immemorial even during the period of Mahabharatha we can find their existence in the society we have to accept their existence and try not to erase gay community.  Supreme Court in many cases has held that right to privacy is an essential element of life. So state cannot interfere in the privacy of the peoples’ lives.

Netherlands also has legalised homosexuality and one of the first marriages was held in Amsterdam city hall then Belgium, Spain, Canada, South Africa, Norway, Sweden followed the same.  Japan also has given permission for its nationals to marry same-sex partners and gay marriage has been legalised in the country. Israel’s Supreme Court has ruled that homosexual Israeli couples who had married in Canada were entitled to register their marriage in Israel.  In 2004 UK parliament had passed Civil Partnership Act that came into existence in 2005 where homosexuals could register their partnership.  After many countries ratified gay relationship many of homosexual’s parades and festivals lit up the roads of the cities. These festivals like Gay and Lesbian Film Festival in Lisbon, Gay and Lesbian Pride in Johannesburg, Midsummer in Melbourne, Mardi Gras in Sydney etc.  Society is changing and same-sex marriage should be accepted as there are many other changes that happen in the society.  In same sex marriage there cannot be procreation of children it should not be banned which will be ridiculous.  Union of same-sex does no harm to anybody so government cannot interfere in the personal belief and morality.  Research show that there has been a biological cause for homosexuality and not genetic problem.  Since nature has made them different they cannot be exploited at the hands of other human beings and others cannot put restrictions on their lives.

In this modern century homosexuality has been recognised across the world.  Even though India has taken a gigantic step in this era of globalisation wherein Delhi High Court in 2009 delivered a historic judgment that brought a halt to the 149 year old colonial law by decriminalising homosexuality. But we have to think over the Section 377 of IPC which criminalises those acts of unnatural sexual relations.  Since India is a very traditional country and its over emphasis on reproduction has led to homosexual relationship to be considered a taboo.  It would be very unfair to deny any privileges to these people just on the basis of them being homosexuals.


References

  1. The Surprising History of Homosexuality and Homophobia, http://www.bidstrup.com/phobiahistory.htm
  2. A Brief History of Homosexuality in America, https://www.gvsu.edu/allies/a-brief-history-of-homosexuality-in-america-30.htm
  3. India has outlawed homosexuality. But it’s better to be transgender there than in the U.S., http://www.washingtonpost.com/posteverything/wp/2015/01/29/india-has-outlawed-homosexuality-but-its-better-to-be-transgender-there-than-in-the-u-s/
  4. Homosexuality in India: Better Late Than Never, http://www.indialawjournal.com/volume3/issue_4/article_by_amit.html
  5. Homosexuality and Social Policy – Duke Law Scholarship Repository BY D.J. WEST
    http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3940&context=lcp
  6. The Law and Homosexuality in India by Sherry Joseph
    http://www.delhihighcourt.nic.in/library/articles/legal%20education/The%20law%20and%20homosexuality%20in%20India.pdf
  7. Homosexual Rights and the Law: A South African Constitutional Metamorphosis by Mr. Mwanawina Ilyayambwa
    International Journal of Humanities and Social
    Science, Vol. 2 No. 4, http://www.ijhssnet.com/journals/Vol_2_No_4_Special_Issue_February_2012/6.pdf
  8. Decriminalising homosexuality in India by Geetanjali Misra, Executive Director, CREA, New Delhi, India
    http://www.countmeinconference.org/downloads/RHM.MISRA.pdf
  9. Section 377 and the Dignity of Indian Homosexuals by Alok Gupta, Economic and Political Weekly November 18, 2006
    4815, http://www.iglhrc.org/sites/default/files/15-1.pdf
  10. Gay sex decriminalised in India,BBC News, 2 July 2009, http://news.bbc.co.uk/2/hi/south_asia/8129836.stm
  11. The Road to Decriminalization: Litigating India’s Anti-Sodomy Law by Danish Sheikh, Yale Human Rights and Development Journal,Volume 16.
    http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj
  12. Lessons for India? Germany to overturn 50000 convictions for male homosexuality, Indiatoday, 12th May 2106,
    http://indiatoday.intoday.in/story/lessons-for-india-germany-to-overturn-50000-convictions-for-male-homosexuality/1/666665.html
  13. Germany to quash historic convictions of gay men, pay compensation – minister, 11th May 2016,
    http://in.reuters.com/article/germany-homosexuals-idINKCN0Y21UD

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