Widespread pride parades, openly addressing and educating people about the LGBTQ+ community and films like Shubh Mangal Zyaada Savdhaan making big bucks in the box office is proof that there has been change in the non-confrontational attitude of Indians towards sexuality and gender diversity. Although this marginal change is welcomed, it is not expected to be received well by different sections of society.
Why is homosexuality considered blasphemy in our country while the Kamasutra has an entire chapter dedicated to homosexuality? Ancient records show that homosexuality has been prevalent since centuries, and was not considered unnatural. One of the oldest Hindu scriptures, the Rigveda, which states “what seems unnatural is also natural”, recognizes and accepts homosexuality.
After the British Raj was established in India in the eighteenth century, modern day homophobia spread- an individual could be prosecuted based on sexuality and gender. Under Section 16 of Article 377 of Indian Penal Code, having intercourse with a person of the same gender was a criminal offence and one could be penalized for the same.
Post-independence and the establishment of Right to Equality under Article 14, homosexuality was still classified as a crime. The first known pride parade was held in India on 11th August, 1992. In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride. In 2009, a landmark Delhi High Court decision in the Naz Foundation v. Govt. of NCT of Delhi case held that treating consensual sex between two adults is a punishable offence.
In 2013, the Suresh Kumar Koushal and Anr. vs Naz Foundation judgement was a step behind in the journey of decriminalizing homosexuality. A two-judge Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya overturned the Delhi High Court case of Naz Foundation V. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. On 24 August 2017, the Supreme Court of India held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgement mentioned Section 377 as a “discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” In the judgement delivered by the 9-judge bench, Justice Chandrachud held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it. They further elaborated that the Right to Privacy is essential for each individual, including marginal groups that form a miniscule part of society.
In 2013, a five-judge bench of the Supreme Court consisting of chief justice Dipak Misra and justices Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman started hearing the challenge to constitutionality of Section 377. The Union Government had made its stand clear on homosexuality by advocating for gay rights and left the judgement to the “wisdom of the court”. The Petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing the Petitioners’ plea for four days, the Court reserved its verdict on 17th July 2018. The Bench pronounced its verdict on 6 September 2018. Announcing the verdict, the Court reversed its own 2013 judgement of restoring Section 377 by stating that using the section of the IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act.
The LGBTQ+ community is not warmly received in India and facing discrimination and subjugation during rudimentary activities is not uncommon. Even in 2020, bullying, harassment, name calling, physical abuse, etc. of homosexuals and transgenders goes unaddressed in educational institutions, the workplace and for that matter even their residence.
Tyrannizing or oppressing a student based on sexuality or gender is prohibited under UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016. The offenders can be expelled or even prosecuted depending on the degree of harm caused. In December 2018, Jagdambika Pal of the Bhartiya Janta Party introduced a bill to the Indian Parliament to amend the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 that allows LGBT people to serve in the Armed Forces.
Even after decriminalizing of gay sex, same gender marriage is a completely different ballpark and a greater challenge in our country. The LGBTQ+ community is working optimistically towards the legalization of same sex marriages. There are numerous incidents of same sex marriages in India- and all of them have ended terribly, with the couples not receiving family approval and getting persecuted by their community, harassment by cops and society, threat to their livelihood and life. Many of these couples end up committing suicide due to the trauma or are killed by their families.
India does not recognize same sex marriages. All States and Union Territories except Goa don’t have a unified marriage code, and marriage laws apply depending on your religion. A few weeks ago, Abhijit Iyer Mitra, Gopi Shankar M, Gita Thadani and G Oorvasi of the LGBTQ+ community contended that the Hindu Marriage Act, 1955 draws no distinction between heterosexual and homosexual marriage. In response, the Solicitor of India Mr. Tushar Mehta stated that same sex marriages are ‘not a part of our culture’ and is against the laws. He noted that he had not been directed to do so by the Centre, and he was only promulgating his reading of the Hindu Marriage Act.
The journey ahead is long and arduous, but the youth are prepared for this. We need to bring change, and we need to do it soon. Everyone deserves to feel secure and have their relationship recognized, irrespective of sexuality.