Homosexuality is the state of being sexually attracted exclusively to persons of same gender. People who are homosexual, particularly men are known as ‘gay’, homosexual women are known as ‘lesbians’. That’s why homosexual marriages is sometimes referred to as gay marriage that indicates, marriage between two persons of the same gender.
Homosexuality is taboo in India. this issue is also one of the most avoided or detested issues in our Indian society. Even the mentioning of the words Gays or Lesbians is a strict no-no in public. Thus, the society as whole has till now not accepted people with different or so-called unnatural sexual behavior. Section 377 of the Indian Penal Code,1860 makes same gender sex punishable by law. Section 377 states it as unnatural offences and the person committing it shall be punished with imprisonment for life or imprisonment for any such term which my extend to ten years and shall also be liable to pay fine.
Throughout the Hindu and Vedic texts there are many descriptions of saints, demigods, and even the Supreme Lord delivering gender norms and displaying multiple and different combinations of sex and gender. There are many instances in ancient Indian epic poetry where is depiction of love making of the same sex people and unions by gods and goddesses. There are several stories depicting love between same sexes. Kamasutra, the ancient Indian book on love talks about feelings for the same sexes. Transsexuals are also depicted for example, Lord Vishnu as Mohini and Lord Shiva as Ardhanarishwara (which means half woman). Homosexuality was never seen as a crime in ancient India; on the contrary, alternative sexuality formed an inalienable part of society. Apart from male and female, there is 20 more types of genders, for instance transwomen, transmen, androgynous, pangender and trigender etc. which in ancient India was referred to as Trithiya prakirthi.
At various level discrimination has to be faced by the homosexuals in the Indian society; even in their homes and as well as in the outside world. Their entire life is a struggle just because they are born with a different sexual orientation. Everywhere they (Lesbian, gay, bisexual, transgender, queer and intersex people) become a dart board for targets of such obnoxious comments and sexually colored jokes.
India has progressive and dynamic Constitution. The Constitution of India is the backbone country under which the rights of each and every citizen of the country whether he is in minority or majority is protected. LGBT community is a minority group and they too have constitutional rights. But their right to equality and getting equal status in the society is violated. Being deprived of this basic human right they are becoming the regular victims of such violation of the right.
A transgender welfare policy was introduced in the state of Tamil Nadu and Kerala. According to this policy the transgenders can asses free Sex Reassignment Surgery (SRS). In India, a group of transgender people named Hijras, were legally granted voting rights as a third gender in 1994.
Section 377 of the Indian Penal Code says that sex with persons of the same sex is punishable by law. On 2 July 2009, the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi, held that Section 377 of IPC and other legal prohibitions against private, consensual, adult, and non-commercial same-sex conduct to be unconstitutional in respect to sex between consenting adults. On 23 February 2012, the Ministry of Home Affairs expressed its resistance to the decriminalization of homosexual activity by stating that in India, homosexuality is seen as an immoral act. The Central Government reversed its viewpoint on 28 February 2012, declaring that there was no error in decriminalizing homosexual activity. The 2009 Delhi High Court order was overruled by the Supreme Court of India on 11 December 2013, stating that the court was instead deferment to Indian legislators to provide the desired clarity. The Supreme Court, on 2 February 2016, stated that it would review petitions to abolish Section 377 of Indian Penal Code to a five-member constitutional bench, which would give a comprehensive hearing of that issue.
In 2014, Supreme Court directed the government to declare transgender as the ‘third gender’ and should be given reservation under OBC quota in education and jobs and also directed Central and State to form various welfare schemes for them. On 24 April 2015, the Parliament passed the ‘Rights of Transgender Persons Bill, 2014’ providing rights, protection and entitlements, reservations in jobs and education (2% reservation in government jobs), legal aid, pensions, unemployment allowances for transgender community. It also contains provisions to prohibit discrimination in the field employment as well as to prevent abuse, violence and exploitation of the third gender. The bill also provides for the establishment of transgender rights courts at centre and state levels.
On August 24, 2016 a law for the ban of commercial surrogacy for the homosexuals was passed by the Union Cabinet and it was announced by Sushma Swaraj, the Minister of External Affairs (India). The drafted bill denies the homosexuals from having surrogate children.
State in Indian Society
In India, lesbian, gay, bisexual and transgender (LGBT) people experience not only legal difficulties but also have to face social problems which are not faced by non-LGBT persons. Being involved in sexual activity between people of the same sex is illegal, and marriage of same-sex couples is not legal or to obtain a civil partnership is not legal. However, India legally recognized Hijras as a third gender, separate from men or women.
In India there are no official demographics for the LGBT population, but the government submitted figures to the Indian Supreme Court in 2012, according to which, there were 2.5 million gay people recorded in the country. These statistics are based on those individuals who have declared themselves as gay to the Ministry of Health. There may be much higher number for individuals who have concealed their identity from the society, since due to fear of discrimination a large number of homosexual Indians are living in the closet.
Homophobia is prevalent in the country. Public discussion on homosexuality has been inhibited by the fact that sexuality in any form is a taboo in India. However, in recent years, attitudes towards homosexuality have changed slightly. There have been more discussions related to homosexuality in the Indian news media now-a-days. Several non-governmental organisations, including the Naz Foundation (India) Trust, the National AIDS Control Organisation, Humsfar, Law Commission of India, SAATHI, Union Health Ministry, National Human Rights Commission of India and even the Planning Commission of India have expressed their support for decriminalising homosexuality in India, and had stand for tolerance and social equality of lesbian, gay, bisexual, and transgender people. India is with a social element of a third gender. But the mental, physical, emotional and the social violence against LGBT community still prevails as there is lack of support from their family, society or police due to which many gay rape victims don’t report the crimes.
Supreme Court of India on August 24, 2017 gave the LGBT community of the country the freedom to safely express their sexual orientation. Therefore, an individual’s sexual orientation is protected by Right to Privacy law in the country. This judgment is valid even in the context of Section 377 of the Indian Penal Code homosexuality is criminalized.
Homosexual Marriages Should Be Legalized
It violates right to liberty provided under Article-21 of the Constitution of India which covers private consensual sexual relations. Under Article-21 the fundamental right to liberty forbids the state from interfering in the private activities of an individual. The concept of privacy here is in a broad sense that no comprehensive definition of the term can be given. Criminalization of homosexual conduct is unreasonable. It is the infringement of the right to equal protection before law which requires the determination of whether there is a rational and reasonable basis to the classification to be introduced. Article-15 forbids discrimination on various grounds, which includes Sex. Article-15 says that there is no standard behavioral pattern attached to the gender. Article 14 of the constitution which describes the fundamental right to equality, and is said to be the principle foundation of all other rights and liberties is being violated in the case of LGBT community.
India is not ignorant about homosexual events and legalization of the rights of the LGBT community around the world but still it has some reservation about homosexual relationships. The traditional Indian society disapproves homosexuality and justifies it as an unreasonable, non rational, unjust criminal offence even when adults indulge in sexual activities with the same gender. Our country is one of a handful of the democracies that criminalise same-sex relationships.
The youths of today are being aware of the situation of the homosexuals. The homosexuals themselves have realized the importance of raising voice for their rights. The Indian society now is trying to broader their mindset. They know that homosexuality is not an offence, it is just a way of finding of happiness, a way to achieve sexual satisfaction or satisfying their desire. No reason, apart from blind prejudice, which prohibits the two homosexuals going through a civil ceremony which would give them the rights which heterosexual couples enjoy. Marriage is a way of proofing love. If gays or lesbians want to be committed, how does that damage the ideals of marriage? Should we respect the individual’s right to choose his or her life partner at their own discretion? Right to live and Right to freedom is our fundamental right which no one has a right to infringe it.